INTERVENORS; PRACTICE & PROCEDURE – INTERVENTION. Upon intervention by a medical provider, an employee cannot assert a direct claim for benefits on behalf of the intervenor absent a demonstration that the employee or employee’s counsel is authorized to act on the intervenor’s behalf.
TEMPORARY TOTAL DISABILITY – SUBSTANTIAL EVIDENCE. Where the employee had been laid off for a seasonal work stoppage and had been contacted about returning to work for the employer in the spring, the compensation judge could reasonably conclude that the employee had a reasonable expectation of returning to work for the employer and was not disqualified from receiving temporary total disability benefits on the grounds of failure to conduct a job search.
TEMPORARY PARTIAL DISABILITY – SUBSTANTIAL EVIDENCE. Where the employee had a wage loss while working with restrictions causally related to the work injury and the employer and insurer had not rebutted the presumption that the employee’s actual earnings accurately reflect the employee’s reduced earning capacity, substantial evidence supports the compensation judge’s award of temporary partial disability benefits.
Compensation Judge: Sandra J. Grove
Attorneys: Karl F. von Reuter, Minneapolis, Minnesota, for the Cross-Appellant. Joshua M. Steinbrecher, Heacox, Hartman, Koshmrl, Cosgriff & Johnson, P.A., St. Paul, Minnesota, for the Appellants.
Affirmed in part, reversed in part, and vacated in part.
GARY M. HALL, Judge
The employer and insurer appeal the reimbursement of intervention claims as direct claims by the employee, temporary total disability benefits and the corresponding award of reimbursement of unemployment compensation paid to the employee by the Minnesota Department of Employment and Economic Development, and temporary partial disability benefits. The employee cross-appeals the compensation judge’s dismissal of the intervenors’ claims and the judge’s finding that the employee’s chiropractic and physical therapy treatment exceeded the treatment parameters, and also asserts that the treatment parameters were not properly raised at the hearing. We affirm in part, reverse in part, and vacate in part.
Roberto U. Varela Leal, the employee, began working as a dump truck driver for Knife River Corporation, the employer, on May 11, 2015. The employer was insured for workers’ compensation liability by Liberty Mutual Insurance Companies. The employee’s work hours varied, but he often worked overtime, up to 20 hours per week. On August 18, 2015, the employee sustained an admitted work-related low back injury when he slipped while pulling a chain.
The employee was treated at Workmed Midwest, P.A., by Dr. Phillip Bachman, who diagnosed lumbar strain and discogenic pain and also prescribed medication and physical therapy. The employee was restricted to working ten hours per day with some physical accommodations. The employee received physical therapy from August 26 through October 16, 2015, at Northern Star Therapy. In September 2015, Dr. Bachman restricted the employee from lifting more than 30 pounds and referred the employee for a lumbar epidural injection. Dr. Bachman later added a restriction to avoid forward bending. On September 18, 2015, the employee was treated with an injection at the Center for Diagnostic Imaging which provided some relief. On October 16, 2015, Dr. Bachman released the employee to return to work with no restrictions since he was soon to be laid off for the season.
On November 14, 2015, the employee and all of his co-workers were laid off due to a seasonal work stoppage. The employee received unemployment compensation from November 15, 2015, through April 12, 2016.
The employee continued to receive treatment for his injury. Another epidural injection, performed on November 19, 2015, did not provide relief. On November 25, 2015, Dr. Bachman recommended a lumbar spine MRI and additional physical therapy. The December 11, 2015, MRI indicated multi-level degenerative disc disease including a L5-S1 extruded disc herniation with impingement on the left S1 nerve root and an L4-5 central bulge/protrusion abutting the central L5 nerve roots with moderate bilateral foraminal narrowing. On December 14, 2015, Dr. Bachman diagnosed a L5-S1 disc herniation and referred the employee to Dr. Nicholas Will at Summit Orthopedics. Dr. Bachman completed a workability form which indicated no restrictions on December 14, 2015, but also wrote restrictions of no lifting over 40 pounds and avoiding forward bending on a prescription slip dated the same day. The employee received a letter dated December 23, 2015, stating that effective January 3, 2016, he would receive a raise to $19.50 per hour.
The employee met with a qualified rehabilitation consultant (QRC) in January 2016. A rehabilitation plan indicated that the employee’s vocational goal was a return to work with the same employer. On January 6, 2016, the QRC contacted the employer and was told that the employee would be called back to work in the spring.
Dr. Will evaluated the employee on January 19, 2016, and diagnosed low back pain and three-level degenerative disc disease. He did not recommend surgery, but recommended physical therapy and medication, and also indicated that the employee may require a functional capacities evaluation and permanent restrictions.
The employee began receiving chiropractic care from Scott Schulz, D.C., at Big Lake Spine & Sport (BLSS) on January 26, 2016, and received 20 treatments through March 18, 2016. Dr. Schulz assigned lifting, bending, and squatting restrictions. On February 12, 2016, Dr. Schulz recommended physical therapy, including exercise, traction, and massage, at Integrated Care Clinics (ICC). The employee began physical therapy treatment at ICC on February 16, 2016, which continued with 11 visits through March 18, 2016. Some improvement was noted.
On March 17, 2016, the employee underwent an independent medical examination with Dr. Mark Engasser. Dr. Engasser diagnosed myoligamentous strain of the lumbosacral spine and multi-level lumbar degenerative disc disease at L3-S1 with disc herniation at L5-S1 and central disc protrusion at L4-5 without focal impingement but with compression of the left S1 nerve root. Dr. Engasser opined that the employee had sustained a work-related low back injury on August 18, 2015; he was not at maximum medical improvement; he should continue three to four weeks of physical therapy and maintain a home back strengthening and flexibility program; he has work restrictions of lifting 50 pounds rarely and 40 pounds frequently; and that his medical treatment to date had been reasonable and necessary.
On March 22, 2016, the employee attended a mandatory safety training session in preparation for being called back to work for the employer.
The employee filed a claim petition in December 2015 for temporary partial disability benefits from August 19 through November 13, 2015; temporary total disability benefits from November 13, 2015; approval of a MRI scan; rehabilitation services; and attorney fees. The employee gave notice of right to intervene to various medical providers. Workmed Midwest filed a motion to intervene on December 21, 2015. BLSS and ICC intervened on March 2, 2016, and filed a notice to appear by telephone on April 11, 2016. The employer and insurer objected to the motions.
A hearing was held on April 12, 2016. The Minnesota Department of Employment and Economic Development (DEED) appeared at the hearing by telephone after notifying the compensation judge of its intent to do so under a standing order in effect at the Office of Administrative Hearings. ICC and BLSS did not notify the court of their intent to appear by phone by the deadline in the standing order and did not appear at the hearing. Workmed Midwest also did not appear at the hearing.
The compensation judge granted the employer and insurer’s motions to dismiss the intervention claims of ICC, BLSS, and Workmed Midwest based on their failure to appear at the hearing. The employee asserted that he was making direct claims for payment for these intervenors, which the compensation judge awarded to BLSS and Workmed Midwest based on a standing order allowing the claims. The judge also awarded temporary partial and temporary total disability benefits and found that the treatment parameters limited the award of chiropractic treatments at BLSS and required denial of all of the physical therapy treatments at ICC.
The employer and insurer appeal the reimbursement of intervention claims as direct claims by the employee, temporary total disability benefits and the corresponding award of reimbursement of unemployment compensation paid to the employee by DEED, and temporary partial disability benefits. The employee cross-appeals the compensation judge’s dismissal of the intervenors’ claims and the judge’s finding that the employee’s chiropractic and physical therapy treatment exceeded the treatment parameters, and also asserts that the treatment parameters were not properly raised at the hearing.
On appeal, the Workers’ Compensation Court of Appeals must determine whether “the findings of fact and order [are] clearly erroneous and unsupported by substantial evidence in view of the entire record as submitted.” Minn. Stat. § 176.421, subd. 1(3). Substantial evidence supports the findings if, in the context of the entire record, “they are supported by evidence that a reasonable mind might accept as adequate.” Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 59, 37 W.C.D. 235, 239 (Minn. 1984). Where evidence conflicts or more than one inference may reasonably be drawn from the evidence, the findings are to be affirmed. Id. at 60, 37 W.C.D. at 240. Similarly, findings of fact should not be disturbed, even though the reviewing court might disagree with them, “unless they are clearly erroneous in the sense that they are manifestly contrary to the weight of evidence or not reasonably supported by the evidence as a whole.” Northern States Power Co. v. Lyon Food Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975).
A decision which rests upon the application of a statute or rule to essentially undisputed facts generally involves a question of law which the Workers’ Compensation Court of Appeals may consider de novo. Krovchuk v. Koch Oil Refinery, 48 W.C.D. 607, 608 (W.C.C.A. 1993), summarily aff’d (Minn. June 3, 1993).
The compensation judge granted the employer and insurer’s motions to dismiss the intervention claims of ICC, BLSS, and Workmed Midwest based on their failure to appear at the hearing, relying on Sumner v. Jim Lupient Infiniti, 865 N.W.2d 706, 75 W.C.D. 263 (Minn. 2015). In Sumner, the supreme court concluded that Minn. Stat. § 176.361, subd. 4, requires intervenors to attend all conferences and the hearing, and that failure to appear results in denial of intervenors’ claims for reimbursement.[1] Id. at 710, 75 W.C.D. 269-70. Effective September 15, 2015, the Office of Administrative Hearings (OAH) issued a standing order that set out procedures to be followed in appearances by intervenors and allowed direct claims in cases where a provider had intervened and there was an objection, but the provider had not appeared at the hearing. The intervenors involved in this appeal did not follow the procedures listed in the standing order to appear by telephone and did not appear at the hearing. The judge allowed the employee to make direct claims for payment to two of the intervenors based on the standing order.[2]
The employer and insurer argue that the judge erred by allowing payment for the intervenors through direct claims by the employee, citing Xayamongkhon v. Indep. Sch. Dist. No. 625, No. WC15-5852 (W.C.C.A. Apr. 19, 2016), summarily aff’d (Minn. Jan. 30, 2017), where this court reversed an award of reimbursement to an intervenor through a direct claim by the employee. The court noted that once a provider has intervened, it has an obligation to appear at the hearing, and failure to do so mandates denial of the intervenor’s claim pursuant to Sumner and Minn. Stat. § 176.361, subd. 4. The employee argues that the standing order at OAH allows the direct claims. We disagree.
This court recently addressed a similar issue in Fischer v. Indep. Sch. Dist. No. 625, 76 W.C.D. 889 (W.C.C.A. 2016). In that case, the standing order was also in effect, and the intervenors involved in the appeal did not comply with the standing order and did not appear at the hearing. The compensation judge awarded reimbursement to the intervenors through direct claims by the employee. This court reversed, concluding that an employee is not able to make a direct claim for the expenses that are the subject of an intervenor’s claim where the employee has not unequivocally established at the hearing that the employee’s attorney also represents the intervenors, citing Xayamongkhon. As a result, the court vacated the award of reimbursement to the intervenors. Id. In this case, the employee’s attorney also did not represent the intervenors but made direct claims for the intervenors’ claims.[3] The compensation judge’s award of payment in this situation is not in accord with the statute in effect at the time of the hearing and decision below, the supreme court’s decision in Sumner, and this court’s decisions in Xayamongkhon and Fischer. We therefore reverse the compensation judge’s decision on this issue and vacate the award of reimbursement[4] to BLSS and Workmed Midwest.[5]
The employer and insurer claim that substantial evidence does not support the compensation judge’s award of temporary total disability benefits and the corresponding award of reimbursement of unemployment compensation paid to the employee by DEED, arguing that the employee was not entitled to temporary total disability benefits because his wage loss was a result of seasonal layoff and because he did not conduct a job search. The employee argues that he is entitled to temporary total disability benefits because he had work restrictions and expected to return to work for the employer after the layoff.
The employee was laid off from the employer on November 14, 2015, due to a seasonal work stoppage. Termination from employment for reasons not causally related to the work injury does not necessarily preclude an award of temporary total disability benefits. See Marsolek v. Geo. A. Hormel Co., 438 N.W.2d 922, 41 W.C.D. 964 (Minn. 1989); Johnson v. State, Dep’t of Veterans Affairs, 400 N.W.2d 729, 39 W.C.D. 367 (Minn. 1987); Mayer v. Hormel Foods Corp., slip op. (W.C.C.A. Apr. 18, 2001). The issue in such a case is whether there is a causal relationship between the work injury and the wage loss, which is generally shown by a reasonably diligent job search. See e.g., Marsolek, 438 N.W.2d at 924, 41 W.C.D. at 968. Where an employee has a reasonable expectation of returning to work with the employer, however, the employee may not be required to conduct a job search to be eligible for temporary total disability benefits. Goss v. Ford Motor Co., 55 W.C.D. 316, 327 (W.C.C.A. 1996) (citing Jacobson v. Seaboard Farms, slip op. (W.C.C.A. May 6, 1996); Glasow v. Gresser Concrete Masonry, slip op. (W.C.C.A. Apr. 18, 1995)), summarily aff’d (Minn. Oct. 17, 1996). The employer and insurer argue that the employee was not guaranteed to return to work for the employer for the next season. The return to work need not be guaranteed, however, only that there is a reasonable expectation that the employee will return to work for the employer. Whether the employee had a reasonable expectation of a return to work with the employer is a question of fact for the compensation judge, based on the circumstances of the case. See Cloud v. Leech Lake Housing Auth., 63 W.C.D. 226 (W.C.C.A. 2002), summarily aff’d (Minn. Mar. 26, 2003); Gray v. Sears Roebuck & Co., 60 W.C.D. 273 (W.C.C.A. 2000).
In this case, the employee continued to have restrictions on his work activities and on the number of hours he could work after he was laid off. Dr. Schulz also assigned restrictions, and Dr. Engasser agreed that restrictions were appropriate and causally related to the employee’s work injury. In December 2015, the employee received a letter from the employer indicating that he would receive a raise in pay. In January 2016, the employee’s QRC was told that the employee would be called back to work in the spring. Further, as noted by the compensation judge, the employee’s rehabilitation plan indicated that the employee’s vocational goal was to return to work for the same employer and did not include a job search. The compensation judge could reasonably conclude that the employee had a reasonable expectation of returning to work for the employer and was not disqualified from receiving temporary total disability benefits on the grounds that he failed to conduct a job search. We affirm.
The compensation judge awarded the employee temporary partial disability benefits based on his reduction in earnings after the work injury. Temporary partial disability benefits are paid based on the difference between the weekly wage of the employee at the time of the injury and the wage the employee is able to earn in the employee’s partially disabled condition. Minn. Stat. § 176.101, subd. 2(a). An employee is entitled to temporary partial disability benefits “while the employee is employed, earning less than the employee’s weekly wage at the time of the injury, and the reduced wage the employee is able to earn in the employee’s partially disabled condition is due to the injury.” Minn. Stat. § 176.101, subd. 2(b). The employer and insurer assert that the employee was not entitled to temporary partial disability benefits, claiming that the employee did not show that his reduction in earnings after the injury was causally related to his work injury because his wages fluctuated before and after the work injury. The employee argues that he is entitled to temporary partial disability benefits because he had work restrictions and earned less than his weekly wage for some of the weeks after his injury until he was laid off.
To establish entitlement to temporary partial disability benefits, an employee must show a work-related physical disability and an actual loss of earning capacity that is causally related to the disability. Krotzer v. Browning-Ferris/Woodlake Sanitation Serv., 459 N.W.2d 509, 43 W.C.D. 254 (Minn. 1990). The employee has the burden of establishing a diminution in earning capacity that is causally related to the work-related disability. Arouni v. Kelleher Constr., Inc., 426 N.W.2d 860, 864, 41 W.C.D. 42, 48 (Minn. 1988). An employee’s actual earnings are presumed to be an accurate reflection of reduced earning capacity. Roberts v. Motor Cargo, Inc., 258 Minn. 425, 104 N.W.2d 546, 21 W.C.D. 314 (1960); Einberger v. 3M Co., 41 W.C.D. 727 (W.C.C.A. 1989). That presumption may be rebutted by evidence establishing that the employee’s earning capacity is different than the actual earnings or that the employee’s loss of earnings is not causally related to the work injury. See Borchert v. American Spirits Graphics, 582 N.W.2d 214, 215, 58 W.C.D. 316, 318 (Minn. 1998). The issue of earning capacity is factual in nature and is determined by the compensation judge as the trier of fact. Mathison v. Thermal Co., Inc., 308 Minn. 471, 243 N.W.2d 110, 28 W.C.D. 406 (1976); Noll v. Ceco Corp., 42 W.C.D. 553, 557 (W.C.C.A. 1989).
The compensation judge noted that Dr. Bachman had restricted the employee’s hours and that he missed work for medical appointments. The judge emphasized that the employer and insurer had offered no evidence of other causes for the employee’s reduced hours after the work injury, and concluded that the employer and insurer had not rebutted the presumption that the employee’s actual earnings accurately reflect his reduced earning capacity. We affirm the compensation judge’s award of temporary partial disability benefits.
[1] Minn. Stat. § 176.361 was amended effective August 1, 2016, after the hearing and decision in this case. Act of May 12, 2016, ch. 110, art. 3, §§ 6-12, 2016 Minn. Laws 122-25.
[2] Due to the procedural posture of this case, we do not need to reach the issue of whether OAH, as an executive branch agency, has the authority to issue a standing order with “general applicability and future effect” absent the promulgation of a rule under the Minnesota Administrative Procedure Act. See Minn. Stat. § 14.02, subd. 4 (“‘Rule’ means every agency statement of general applicability and future effect, including amendments, suspensions, and repeals of rules, adopted to implement or make specific the law enforced or administered by that agency or to govern its organization or procedure.”).
[3] The employee alternatively cross-appealed the compensation judge’s dismissal of the intervenors’ claims for failure to appear at the hearing, arguing that the intervenors’ right to reimbursement had been established by the independent medical examiner’s report and that the intervenors had good cause for failing to attend the hearing because the employee did not know that the intervenors had received notice of the hearing and therefore did not remind the intervenors of their right to file election to appear by telephone on a timely basis for the expedited hearing. We disagree. In Sumner, the supreme court stated that an intervenor’s right to reimbursement could be established by stipulation or by failure of the employer and insurer to object to intervention or to return a signed stipulation, Sumner, 865 N.W.2d at 710-11, 75 W.C.D. at 270, none of which occurred in this case. Further, the employee’s attorney did not represent the intervenors, and the intervenors had notice of the hearing.
[4] Specifically, we reverse finding 15 and vacate orders 5 and 6 of the compensation judge’s decision.
[5] The employee also cross-appealed the compensation judge’s findings that the employee’s chiropractic treatments at BLSS and physical therapy treatments at ICC exceeded the treatment parameters and asserted that the employer and insurer did not properly raise the issue of treatment parameters. Since we have reversed the compensation judge’s reimbursement of the intervenors’ claims as direct claims, which also included ICC’s claim, we need not address these issues.