SHAWN MACK, Employee/Respondent, v. MENARD, INC. and AIU INS. CO., ADMIN’D BY GALLAGHER BASSETT SERVS., Employer-Insurer/Appellants, and MESABI REHAB. SERVS., INC., Intervenor.

The employer and insurer appeal from the compensation judge’s award of an on-site job analysis.  We affirm.

On May 14, 2024, the employee, Shawn Mack, sustained admitted work injuries to his left index and middle fingers.  The employee’s fingers were crushed when a floor display fell while he was employed as a department manager by the employer, Menard, Inc.

On the day of the incident, the employee was seen at Sanford Bemidji Walk-In Clinic for medical care.  An examination revealed swelling and bruising of the employee’s left hand, and lacerations of the pads of the left index and middle fingers.  An acute terminal tuft fracture of the middle finger was seen on x-ray.  The employee’s lacerations were closed and he was given a tetanus vaccination.

The following day, the employee was seen at Sanford Bemidji Orthopedics and Sports Medicine by PA-C Katherine Smith.  The index and middle fingers showed mild bruising and swelling on examination.  Active flexion range of motion for both fingers was limited with decreased sensation of both fingertips.  A splint was placed on the middle finger and was to be used for six weeks.  The employee was released to work with restrictions of no lifting, carrying, pushing, or pulling with the left hand.^[1]  He was to be re-evaluated in two weeks and was referred to occupational medicine.

The employee was seen by PA-C Smith on May 30, 2024.  PA-C Smith noted the employee’s middle and index finger lacerations appeared healed.  Sensation was decreased in the tips of the index and middle fingers with tenderness at the end of the middle finger.  An x-ray revealed a nondisplaced comminuted fracture of the distal phalanx of the employee’s left middle finger.  The employee was to continue using the splint on his middle finger for another four weeks.  PA-C Smith released the employee to work on June 3, 2024, with restrictions to wear the splint and a lift, carry, push, and pull limit of two pounds with the left upper extremity, and normal use of the right upper extremity.  These restrictions were in place until June 27, 2024, when the employee was to ease into activity as tolerated.

On June 14, 2024, the employee was seen at Sanford Health OccMed Bemidji by NP Denise Merschman, reporting new injuries to his left hand and wrist which occurred when the employee used his hands to stop a roll of carpet from unrolling at work.  X-rays ruled out fractures to the employee’s ring and pinky fingers and showed healing of the middle finger tuft fracture from the May 14, 2024, date of injury.  The employee was placed on restricted duty through June 21, 2024.  The restrictions included seldom grasping with the left hand, no fine manipulation with the left index and middle fingers, and occasional lifting with the left hand of no more than five pounds.  The employee was to continue use of the splints on the left index and middle fingers and avoid activities that aggravated his left hand.

The employee saw NP Merschman in follow-up on June 20, 2024, with complaints of tingling in the left index and middle fingers with tenderness when bumped.  NP Merschman released the employee for his left wrist, ring finger, pinky finger, and thumb symptoms.  The employee was not provided any work or activity restrictions by NP Merschman, other than to wear the splints on his left index and middle fingers and to avoid activities that aggravated his injured fingers.

On July 12, 2024, the employee returned to see NP Merschman for his left index and middle finger injuries.  The record states the employee had been released by orthopedics but continued to have symptoms of finger numbness and sensitivity when not using the splints.  Tenderness to light touch on the palm and dorsal sides of the index and middle fingers, as well as weakness, were noted on examination.  NP Merschman ordered occupational therapy for the employee to cease use of the splints to improve sensation to his injured fingers.  The employee was given restrictions through July 26, 2024, of avoiding grasping/holding items, with no lifting over five pounds from ground to waist level, no lifting to the waist over fifteen pounds, and no fine manipulation with the left index and middle fingers.

The employee returned to see NP Merschman on July 26, 2024.  The employee complained of pain in the tips and distal pads of his left index and middle fingers when touching certain materials.  On examination, the index and middle fingers were tender to touch, as were the distal pads and tips of both fingers.  It was recommended that the employee continue to de-sensitize his injured fingers.  NP Merschman continued the employee’s restrictions, but increased lifting from ground to waist level from five to ten pounds.

The employee on August 10, 2024, was seen at Sanford Bemidji Walk-In Clinic for a right shoulder injury sustained at work.  He was seen by CNP Angela Splettsoeszer with complaints of right shoulder pain after having pushed a roll of carpet.  When pushing the carpet roll, the employee heard a popping sound.  He reported that, because of his left index and middle finger injuries, he was trying to use his right arm to move items.  There was decreased range of motion in the employee’s right shoulder and pain with outward motion on examination.  An x-ray was negative.  The employee was given a letter for a modified return to work, allowing him to return to work with lifting no more than ten pounds and no right or left shoulder use above shoulder level.

On August 13, 2024, the employee met with qualified rehabilitation consultant (QRC) Sharon Naumann for an initial rehabilitation consultation.  After meeting with the employee and consulting with the employer, QRC Naumann opined the employee was eligible for statutory rehabilitation services in an initial evaluation report dated August 15, 2024.  (Ex. 11.)  On August 17, 2024, QRC Naumann prepared a Rehabilitation Plan (R-2) and sent the filing to the employee and the employer’s insurance claim representative for review and execution.  (Exs. 11 and B.)  The employee signed the R-2 on August 23, 2024.  (Ex. B.)  The insurance claim representative did not sign or object to the R-2.

According to the R-2, the stated vocational goal was to return the employee to work with the employer.  Further, the focus of the rehabilitation services provided by the QRC would be to assist the employer and the employee on “return-to-work matters.”  (Ex. B.)  Among the services to be completed per the R-2 were the service categories including “on-site job analysis” and “job modification.”

The employee returned to see NP Merschman on August 20, 2024, complaining of numbness in his index and middle fingers with extreme touch sensitivity when not wearing his splints.  He reported working on improving his touch sensation and grip strength in occupational therapy.  NP Merschman released the employee to unrestricted work duty but advised him to avoid activities that aggravated the left index and ring fingers, and the left hand.

On September 3, 2024, the employee saw NP Merschman for the injury to his right shoulder that had occurred on August 10, 2024.  The employee had been pushing a roll of carpet onto a rack at work when he felt a pull in his right shoulder.  The employee had full range of motion of the right shoulder with no pain or tenderness.  He was diagnosed with muscle and tendon strains of the right shoulder and was discharged without work or activity restrictions.

QRC Naumann on September 5, 2024, filed an R-2 with the Department of Labor and Industry (DLI).  This R-2 was not signed by the employee, and was not signed or objected to by the insurance claim representative.  (Ex. B.)

A monthly progress report was prepared by QRC Naumann dated September 13, 2024.  QRC Naumann reported that she would attend the employee’s next appointment with NP Merschman to clarify her release of the employee to regular work activities and her instruction that he avoid activities which aggravate his left fingers and hand.  The report stated that the employee was having difficulties performing the essential functions of his job with the employer because of left hand pain.

Accompanied by QRC Naumann, the employee returned to see NP Merschman for evaluation of his left index and middle fingers on September 17, 2024.  He was experiencing stiffness in the left index and middle fingers after lifting or use and was unable to fully flex those fingers.  Depending on the amount of lifting and movement performed, the employee reported stiffness after two to three hours of work.  The employee would hold his fingers out to avoid having pain when performing work activities.  The employee reported having seen Dr. Vern Erickson for a second opinion.  Dr. Erickson felt the employee may be experiencing finger tenosynovitis and prescribed Gabapentin.  NP Merschman referred the employee to work hardening at Bemidji Choice Therapy and instructed him to return following completion.  No activity or work restrictions were given to the employee, but he was told to avoid activities that aggravate the left index and middle fingers, and the left hand.

QRC Naumann on September 18, 2024, sent an email to the employer advising of the employee’s restriction that he should avoid activities that aggravated his left index and middle fingers, and the left hand.  Job duties and activities involving both hands aggravate the employee’s pain in his left index and middle fingers.  As a result, the employee required work accommodations when lifting, pushing, pulling, and handling products in his department.  To facilitate a review of the employee’s job duties and reasonable accommodations, QRC Naumann indicated that she was available to perform an on-site job analysis.

On September 18, 2024, the employee communicated to the employer that the restriction to “avoid activities that aggravate [the] left hand” would limit his usual day to day activities by 80 percent.  (Ex. 5.)  The employer replied that the employee’s work status was “[r]egular duty as of 9/17/20204 [sic].”  (Ex. 6.)  Further, the employer informed the employee that he had “no work or [a]ctivity restrictions.”  (Id.)  Based upon this understanding of the employee’s activity restrictions, the employer communicated that, as was agreed upon, the employee was to ask for help when needed.  (T. 84.)

On September 20, 2024, the employee reported to QRC Naumann that the person scheduled to assist him that evening had been removed from his department by the employer, leaving him to work alone to lift heavy freight.  The employee remarked to QRC Naumann that while he was told by the employer to ask for help, the help was not available to him.

On September 23, 2024, QRC Naumann sent a letter to the employer advising that the employee was unable to perform all of his job duties without full strength of his left hand.  She noted that when he had assistance of another employee in his department, he could perform his job duties, but scheduling of help was inconsistent, and when the employee sought assistance from other departments, help did not arrive in a timely manner which interfered with customer satisfaction.  QRC Naumann recommended an on-site job analysis to facilitate the employee’s successful return to work.  The employer was asked to respond to the on-site job analysis recommendation made by QRC Naumann by September 30, 2024.

QRC Naumann on October 9, 2024, sent a monthly progress report to the parties.  The report communicated ongoing issues between the employee and the employer on workplace accommodations.  In the report, QRC Naumann stated that she had contacted NP Merschman and confirmed that as of September 17, 2024, the employee was returned to “regular duty” with the restriction of avoiding use of his left hand.  She also reported that the employee had begun his work hardening program.

On October 29, 2024, the employee saw Dr. Mark Carlson at Sanford Bemidji Orthopedics & Sports Medicine Center for pain and numbness to the tips of his left index and middle fingers.  On examination of the fingers, Dr. Carlson found stiffness with active flexion of the PIP joints.  He suspected the employee’s paresthesia, pain, and sensitivity to the distal phalanx of the left index and middle fingers, and peripheral nerve damage, was from the work injury.  To rule out carpal tunnel syndrome or median neuropathy, Dr. Carlson recommended EMG testing.

On November 4, 2024, the employee was seen by Dr. Qin Du, a hand surgeon at Altru Orthopedics and Sports Medicine, for symptoms of pain, stiffness, and loss of sensation in the left index and middle fingers.  The employee reported that he was unable to lift more than 20 pounds at work due to the pain and loss of feeling in his fingertips.  On examination, Dr. Du found alteration to light touch in the employee’s left index and middle fingertips, and that the fingertips appeared atrophied.  Dr. Du believed the employee’s crush injury resulted in neuritis and sensitivity.  Dr. Du issued work restrictions of lifting floor to waist, lifting overhead, carrying, pushing, and pulling of ten to twenty pounds, and recommended an EMG and hand therapy.  (Ex. F.)

QRC Naumann provided the insurance claim representative with Dr. Du’s restrictions and treatment recommendations on November 8, 2024.  The communication reflected that QRC Naumann received no response from the employer with regard to her attempts to schedule an on-site job analysis.  Based upon the employee’s continuing difficulties in performing the physical aspects of his job, QRC Naumann stated that an on-site job analysis was necessary to determine the suitability of his work duties.

On November 11, 2024, QRC Naumann prepared a monthly progress report summarizing the employee’s rehabilitation services.  The report notes that the recommended EMG testing had been approved with a follow-up appointment scheduled on November 25, 2024, with Dr. Du.  QRC Naumann again reported that the employee was unable to perform all job duties which required use of both hands to lift and carry merchandise and to process incoming freight.

An R-3 amendment relating to the employee’s rehabilitation services was filed on November 21, 2024.  The stated reason for the amendment was the employee’s “symptoms prevent him from being capable of performing all of his job duties with the date of injury employer.”  (Ex. 1.)  The description and projected costs for the on-site job analysis and job modification were identical to the previously filed R-2.  The only change reflected in the R-3 for those categories was an extension of the projected date of completion.

On November 25, 2024, the employee underwent a left upper extremity EMG/NCV study.  The NCV portion of the evaluation was within normal limits and the EMG study was deferred.  (Ex. 8.)  Dr. Du reviewed the study and believed the employee’s crush injury at work caused small nerve end damage which could take up to one year to improve.  (Id.)  The workability assessment report completed by Dr. Du restricted the employee to lifting, pushing, carrying, and pulling of under 20 pounds with the left hand.  (Ex. D.)

Counsel for the employee filed a request for certification of a dispute on November 26, 2024, related to QRC Naumann’s multiple requests to conduct an on-site job analysis to which the employer had not responded.  (Ex. H.)  On December 6, 2024, counsel for the employee filed a request for assistance seeking an administrative conference.  The employer on December 11, 2024, filed a rehabilitation response, objecting to the recommended on-site job analysis as not being reasonable or necessary.  The employer asserted that the employee’s job description and restrictions were clear, and that the employee had been instructed to not exceed his restrictions.  (Ex. H.)

On December 6, 2024, the employer filed a request for assistance seeking to amend and modify the November 21, 2024, R-3.  The employer sought removal of the on-site job analysis.  Counsel for the employee filed an objection to the employer’s amendment on December 11, 2024.  (Ex. I.)  A decision and order pursuant to Minn. Stat. § 176.106, was filed on January 10, 2025, denying the on-site job analysis.  The employee filed a request for formal hearing.

The matter was heard before a compensation judge at the Court of Administrative Hearings on February 26, 2025.  The record closed on March 12, 2025, with the filing of written closing arguments.  In a findings and order, the compensation judge determined that the employee’s request for an on-site job analysis was reasonable and necessary to evaluate the employee’s job duties and to assess accommodation of the employee’s work restrictions on a consistent basis.  The employer and insurer appeal.

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).  When the findings are supported by substantial evidence, the Workers’ Compensation Court of Appeals must defer to the compensation judge. Lagasse v. Horton, 982 N.W.2d 189, 202 (Minn. 2022).  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); see also Smith v. Carver Cnty., 931 N.W.2d 390, 79 W.C.D. 495 (Minn. 2019).

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); see also Busch v. Advanced Maint., 659 N.W.2d 772, 778-79 (Minn. 2003).

The employer and insurer appeal from the compensation judge’s award of an on-site job analysis which had been recommended to observe the employee’s work duties and to evaluate accommodations for his work-related restrictions.  The employer and insurer argue that the award is erroneous because the employee had been released to work without formal restrictions on June 20, 2024, the employer had provided work which accommodated the employee’s restrictions, and the employee had been able to perform his date-of-injury job with the provided accommodations, negating the need for an on-site job analysis.  We are not persuaded.

An employer is generally liable for compensation for an employee’s work-related injury.  See Minn. Stat. § 176.021, subd. 1.  Such compensation includes rehabilitation services provided to “restore the injured employee . . . to a job related to the employee’s former employment.”  Minn. Stat. § 176.102, subd. 1(b).  A QRC conducts a rehabilitation consultation to determine whether an employee is a “qualified employee” and is therefore eligible to receive rehabilitation services.  See Minn. R. 5220.0130, subp. 1 (“an employee must be a qualified employee . . . before a rehabilitation plan is implemented”).  An injured employee is eligible for rehabilitation services if the employee, as a result of the work injury:

Once a rehabilitation plan is in place, employers must pay for the services administered according to that plan.  Minn. Stat. § 176.102, subd. 4(a) (“if the consultation indicates that rehabilitation services are appropriate under subdivision 1, the employer shall provide the services”).  The plan can be amended as necessary, keeping the employer and insurer aware of the services being provided and the expected costs.  Minn. Stat. § 176.102; Minn. R. 5220.1800 to 5220.1806, 5220.0410, 5220.0450, and 5220.0510.

The employer and insurer argue that the employee was able to perform full-duty work without wage loss with the provided accommodations upon the employee’s return to work in June 2024.  The accommodations allowed the employee to schedule help in his department during his shifts, to request assistance from other departments or from other management personnel when needed to perform his job duties, and to decline performing work that exceed his restrictions.  Because the accommodations allowed the employee to return to his regular job position, the employer and insurer argue, the on-site job analysis is not a reasonable or necessary rehabilitation service.

Given the number and regularity of complaints related by the employee about continued work duties that aggravated his symptoms, his QRC filed an R-3 amendment seeking to conduct an on-site job analysis to assess his work duties and to ensure effective accommodation of the employee’s restrictions.  The rehabilitation statute and rules establish that it is the obligation of a QRC to provide services needed to aide an injured employee to return to suitable work.  In reviewing an employee’s return to suitable work, the focus is on whether the employee can engage in the work duties the employee performed at the time of injury.  Read v. Ford Motor Co., 45 W.C.D. 487 (W.C.C.A. 1991); Richardson v. Unisys Corp., 44 W.C.D. 199 (W.C.C.A. 1990).  The suitability of a post-injury job is a fact question to be determined by the compensation judge.  Schneider v. Arrow Tank & Eng’g, 509 N.W.2d 359, 49 W.C.D. 435 (Minn. 1993) (citing Jerde v. Adolphson & Peterson, 484 N.W.2d 793, 46 W.C.D. 620 (Minn. 1992)).

The record demonstrates that the employee, after returning to work with restrictions, injured his left hand on June 14, 2024, and his right shoulder on August 10, 2024.  These incidents occurred at work while the employee was working without assistance moving rolls of carpet.  After each incident, the employee required medical care and was allowed to return to work with additional restrictions.  This evidence supports the compensation judge’s determination that the employee’s credible testimony established that he was not able to consistently work within his restrictions.  (Finding 27; Mem. at 8.)^[2]

QRC Naumann repeatedly communicated the employee’s concerns that he was unable to adequately perform his work duties as outlined in his job description.  The compensation judge found QRC Naumann’s testimony that the employer was not accommodating the employee’s restrictions on a consistent basis to be credible and persuasive.  (Finding 26; Mem. at 8.)  The compensation judge adopted QRC Naumann’s unopposed vocational opinion that the employee’s current job position was not suitable.^[3]  Because the employee’s current job was not suitable, the judge awarded the recommended on-site job analysis to evaluate whether the accommodations of the employee’s restrictions were provided by the employer on a consistent basis.

The compensation judge accepted the employee’s testimony that he had not fully recovered from the 2024 left hand injury, and accepted the employee’s testimony regarding the effects of the injury on his work activities.  The compensation judge considered all of the evidence in reaching his conclusion that the employee continued to demonstrate a left-hand disability which entitled him to an on-site job analysis, including the testimony of the employee and the QRC, medical records, and workability statements of his treating physicians.  This court must give due weight to the opportunity of the compensation judge to assess witness credibility.  See Even v. Kraft, Inc., 445 N.W.2d 831, 42 W.C.D. 220 (Minn. 1989).  It is not the role of this court to reevaluate the credibility and probative value of a witness’s testimony.  This court must determine whether the findings of the compensation judge are supported by substantial evidence that a reasonable mind might accept as adequate.  Redgate v. Sroga’s Standard Serv., 421 N.W.2d 729, 40 W.C.D. 948 (Minn. 1988).  We conclude the compensation judge’s decision is supported by substantial evidence, and we affirm.