MARCH 12, 2019

No. WC18-6197

REHABILITATION - FEES AND EXPENSES. The QRC was not barred from payment for services provided under an established rehabilitation plan until the filing of the request for termination of that plan, despite the subsequent finding that the work injury was temporary and had resolved prior to that filing, under Minn. Stat. § 176.102, subd. 8; Minn. R. 5220.0510, subp. 2d; and Parker v. Univ. of Minn., 64 W.C.D. 134, 142 (W.C.C.A. 2003).

    Determined by:
  1. Gary M. Hall, Judge
  2. David A. Stofferahn, Judge
  3. Deborah K. Sundquist, Judge

Compensation Judge: William J. Marshall

Attorneys: Thomas D. Atkinson, Atkinson Law Office, Arden Hills, Minnesota, for the Respondent. Gina M. Uhrbom, Brown & Carlson, P.A., Minneapolis, Minnesota, for the Respondents. Joshua E. Borken, Law Office of Josh Borken, St Paul, Minnesota, for the Appellants.

Reversed and modified.



Optimal Recovery appeals the compensation judge’s denial of payment for qualified rehabilitation services provided after April 20, 2016. The compensation judge did not apply the appropriate standard in determining eligibility for payment of the services at issue. We reverse the decision and award the amounts appropriate under the correct standard.


The employee, Damon Ewing, was leaving work on December 1, 2015, when he slipped on ice and injured his left ankle. The employee was provided conservative treatment. Subsequently, the employee began presenting with numerous other symptoms and conditions alleged to have been consequential injuries from the December 1, 2015, work injury including: complex regional pain syndrome (CRPS), bilateral arm and shoulder pain, back pain, neck pain and spasms, right SI joint pain, insomnia, headaches, and depression. Medical treatment was provided for all of these symptoms. In April 2016, the employee was working with significant restrictions and later taken off of work due to the effects chronic pain had on the employee’s work performance.

In April 2016, the employee underwent an initial assessment for rehabilitation services from Ann Brown, QRC, of Optimal Recovery, Inc. QRC Brown concluded that the employee was qualified for rehabilitation services, as he was restricted from some work due to the effects of the December 1, 2015, work injury. In July 2016, the QRC filed an R-2 to initiate the provision of rehabilitation services. The July 2016 R-2 provided that the QRC would coordinate medical management and facilitate the employee’s treatment plan and return to work process. The self-insured employer made no objection to the R-2 at the time of filing.

On July 12, 2016, the self-insured employer filed a Notice of Insurer's Primary Liability Determination (NOPLD), accepting the employee’s December 1, 2015, work injury and agreeing to pay temporary partial disability (TPD) benefits for four days in May 2016. The QRC provided medical management services from the time of her initial consultation onward. In October 2016, the plan was amended with the QRC filing an R-3 to indicate that medical management would continue pending the employee being released to return to work.

On November 7, 2016, the employee underwent an independent medical examination (IME) conducted by Joel Gedan, M.D. on behalf of the self-insured employer. Dr. Gedan opined that the employee’s injury was limited to his left ankle and none of the claimed consequential injuries had any connection to the work injury. Dr. Gedan indicated that there was no evidence of CRPS. Dr. Gedan considered a functional restoration program for the left ankle, lasting up to several months, to be an appropriate course of treatment. Dr. Gedan opined that the employee was not disabled from working due to his December 1, 2015, work injury.

On November 9, 2016, the employee filed a claim petition, seeking medical benefits and alleging cognitive impairments arising out of a concussion asserted to have been suffered as a result of the December 1, 2015, work injury. No mention of rehabilitation benefits was made in the claim petition. The self-insured employer filed an answer to the claim petition, admitting the left ankle injury and denying all other claims in the petition. No mention was made of rehabilitation benefits in the answer. On November 23, 2016, the self-insured employer notified the QRC that no further medical treatment would be authorized for the employee.

On December 5, 2016, the self-insured employer filed a Notice of Intent to Discontinue (NOID), seeking to terminate temporary total disability (TTD) benefit payments to the employee. An objection to discontinuance was filed and a hearing was held under Minn. Stat. § 176.239. By order served and filed on January 4, 2017, TTD benefits were discontinued due to an interim determination that the employee was no longer restricted from work activities from his December 1, 2015, ankle injury and he was not suffering from CRPS. The employee filed an amended claim petition seeking other specific medical expenses and claiming an underpayment of TTD. On February 3, 2017, the self-insured employer filed a letter answer, indicating that a rehabilitation program for the employee’s ankle was approved, but that any other condition or body part was denied.

On December 9, 2016, the self-insured employer informed the QRC by email that the only admitted injury was to the employee’s left ankle. The self-insured employer indicated that medical management services regarding any other body part or condition would not be reimbursed.

On January 9, 2017, Mark E. Friedland, M.D., issued an IME report on behalf of the self-insured employer following an examination of the employee. Dr. Friedland concluded that the employee suffered a mild left ankle strain that was temporary and would have resolved by April 20, 2016. Dr. Friedland opined that the employee suffered no other injury or condition that was caused by the December 1, 2015, work injury.

On February 6, 2017, the QRC filed an R-3 amending the rehabilitation plan to extend medical management for the employee. The self-insured employer did not file any objection to the proposed R-3 amendment.

On April 6, 2017, the self-insured employer filed a Rehabilitation Request seeking termination of the rehabilitation plan. The QRC continued to provide rehabilitation services, in the form of medical management, after receiving that notice. On April 12, 2017, the employee’s counsel filed a Rehabilitation Response maintaining that the employee’s rehabilitation plan should not be terminated. By agreement of the parties, the rehabilitation issue was consolidated with the existing issues brought by the employee in his claim petition.

The consolidated issues came on for hearing before a compensation judge on April 6, 2018. Included among the issues was reimbursement of rehabilitation expenses. The compensation judge found that the employee’s work injury was temporary and resolved on April 20, 2016. The judge ordered that all claims through April 20, 2016, be paid and dismissed all other claims. Optimal Recovery appealed.


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).


Optimal Recovery contends that all of the QRC billings payable to the date of the compensation judge’s order should have been awarded. The self-insured employer maintains that the compensation judge was correct in denying payment from the date that the work injury resolved, April 20, 2016. As the judge erred as a matter of law in assigning the cutoff date for services and there are no disputed facts that are necessary for determination of this issue, we reverse the compensation judge and modify the findings and order to award the claimed amounts through April 6, 2017.

Minn. Stat. § 176.102 governs the provision and termination of rehabilitation services, which begins with a rehabilitation consultation. Under subdivision 4(a), “If the consultation indicates that rehabilitation services are appropriate under subdivision 1, the employer shall provide the services.” In this case a consultation was provided and those services were found to be appropriate. The plain language of the statute requires that the services be paid for by the employer.

Under Minn. Stat. § 176.102, subd. 8, a rehabilitation plan in place can be terminated on a showing of good cause “Upon request to the commissioner . . . by the employer ….” The language in subdivision 8 requires notice to close the rehabilitation plan. The notice requirements are set out in Minn. R. 5220.0510, subp. 7. Specifically, the employer must file a rehabilitation plan amendment seeking to terminate those services. The self-insured employer did not make such a filing until April 6, 2017.

Three cases are cited to by the self-insured employer who contends that, despite the notice requirement in Minn. Stat. § 176.102, subd. 8, payment for the rehabilitation services provided should terminate with the resolution of the work injury. In DeRosier v. Albrecht Co., slip op. (W.C.C.A. Feb. 5, 1999), an appeal of a denial of attorney’s fees also touched upon whether the employee was entitled to an initial rehabilitation consultation. This court noted that resolution of a temporary work injury was a defense to an award of a rehabilitation consultation. Similarly, that defense was noted in West v. Rie Coatings, Inc., slip op. (W.C.C.A. May 20, 1997), where this court found that the determination of a temporary injury was outside of the scope of the issues before the compensation judge. Neither DeRosier nor West make any mention of Minn. Stat. § 176.102, subd. 8, as there was no rehabilitation plan in place in either of those cases for the provision of services.

As with the two foregoing cases, in Anderson v. Banta Catalog, WC08-104 (W.C.C.A. Jul. 7, 2008), there was initially no request for rehabilitation services. The initial rehabilitation consultation request was filed only ten days prior to the date the temporary injury resolved (per the later finding of the compensation judge). The objection to the rehabilitation request was filed sixteen days after the filing of the request. As related in the WCCA decision in Anderson, the employee began receiving rehabilitation assistance from the QRC the day after the filing of the objection to those services.[1] The court in Anderson affirmed the denial of payment for rehabilitation services stating: “once the employer and insurer had denied liability for the employee’s continuing rehabilitation … [the QRC] continued her services to the employee at her own risk.” Anderson, WC08-104. For these reasons, none of the cases cited by the self-insured employer compel any different outcome regarding the payment for QRC services rendered up to April 6, 2017.

Optimal Recovery argues on appeal that the QRC was obligated to continue providing rehabilitation services after the self-insured employer filed the R-3 seeking termination. This obligation is identified as the June 12, 2017, request from the employee’s attorney that the services continue. Optimal Recovery contends that this request requires that the self-insured employer pay for rehabilitation services after the notice received on April 6, 2017.

The leading case on this issue is Parker v. Univ. of Minn., 64 W.C.D. 134, 142 (W.C.C.A. 2003), where this court stated, “a QRC who continues to provide rehabilitation services during the pendency of a dispute over rehabilitation eligibility runs the risk of non-payment in the event that the employer prevails in the eventual hearing on the merits of the employee’s entitlement to rehabilitation services.” Optimal Recovery’s position is contrary to the language in Minn. Stat. § 176.102, and the standard set out in Parker.[2] After the April 6, 2017, notice seeking to terminate the rehabilitation plan was filed, Optimal Recovery Rehabilitation ran the risk of nonpayment of services provided to the employee.

A showing of good cause is required to close a rehabilitation plan.[3] Among the issues put before the compensation judge was “is the employee entitled to ongoing rehabilitation services?” (Findings and Order, at 3.) While not making a finding regarding good cause, the judge expressly found that the rehabilitation services provided after April 20, 2016, were not related to the December 1, 2015, work injury. (Finding 42.) The entirety of the rehabilitation services provided after the April 6, 2017, filing of the R-3 request to terminate the rehabilitation plan consisted of medical management. As the self-insured employer met the requirement for notice of dispute and the work injury had resolved, this court concludes that the good cause standard has been met as a matter of law and no payment for rehabilitation services is appropriate after April 6, 2017. The compensation judge’s denial of payment for rehabilitation services after April 20, 2016, is reversed and modified to award payment for those services through April 6, 2017.

[1] In a conflicting reference, the WCCA noted that the compensation judge awarded unpaid QRC billings up to the date the temporary injury resolved. While unstated, it is possible that the billings were for the initial rehabilitation consultation, which would be consistent with the dicta in both DeRosier and West.

[2] See Breeze v. FedEx Freight, No. WC14-5687 (W.C.C.A. Aug. 26, 2014) (QRC not eligible for payment for services after filing date of request for change of QRC, where that change was granted).

[3] Halvorson v. B&F Fastener Supply, 901 N.W.2d 425, 77 W.C.D. 803 (Minn. 2017); Minn. Stat. § 176.102, subd. 8(a); Minn. R. 5220.0510, subp. 5.