REHABILITATION – ELIGIBILITY. Where an employee is working at a wage loss and cannot return to the date-of-injury occupation due to the effects of the work injury, the employee is qualified for vocational rehabilitation services, including services involving exploration of retraining.
Compensation Judge: Radd M. Kulseth
Attorneys: Dana L. Gerber, Atkinson Gerber Law Office, P.A., Arden Hills, Minnesota, for the Appellant. Joshua M. Steinbrecher and Chris Wehr, Heacox Hartman, P.A., Edina, Minnesota, for the Respondent.
Reversed.
KATHRYN H. CARLSON, Judge
The employee asserts that the compensation judge erred by denying her claim for rehabilitation services. We agree and reverse.
Jaclyn Yzermans, the employee, began working as a part-time community service officer for the City of Shakopee Police Department, the self-insured employer, in November 2001. She was promoted to probationary officer in 2005 and to full-time police officer in 2007. In August 2008, the employee took an assignment as a school resource officer (SRO) in the Shakopee School District. While working as an SRO, the employee had to meet all physical requirements and perform all duties of a patrol officer.
The employee sustained an injury to her right shoulder on April 1, 2011, while participating in defensive tactics training at work. As a result of that injury, she underwent an arthroscopic decompression and right shoulder labral repair on May 3, 2011. One month after surgery, the employee was released to work with restrictions of no overhead use of the right arm and no lifting over 25 pounds. She was released to work without restrictions on July 11, 2011. James Schaffhausen, M.D., assessed the employee as having reached maximum medical improvement as of August 1, 2011, with a three percent permanent partial disability rating. After passing a firearms qualification, the employee returned to work as an SRO without restrictions. At the time of her injury, the employee’s weekly wage was $1,457.90.
The employee continued to work as an SRO during the school year and as a patrol officer in the summer for seven years without restrictions or accommodations and without seeking medical treatment for her right shoulder. In 2017, the employer allowed other officers to apply for the SRO position, which had previously been a temporary position that rotated every three years. The employee requested to stay in the SRO position in writing with no mention of any issues with her right shoulder. This request was denied. On June 15, 2018, the employee voluntarily resigned from the police department in a written memorandum, again with no mention of any issues with her right shoulder. The employee also sent a June 20, 2018, email to her coworkers stating that she was retiring from law enforcement.
Following her resignation, the employee and her family moved to Wisconsin. From September through November 2018, she worked part time at an apple orchard baking pies, lifting pans, and chopping apples. She noticed arm numbness and pain while performing her job. The employee saw Dr. Adam Bakker on November 5, 2018, reporting pain and a clicking sensation in her right shoulder. A November 21, 2018, MRI revealed a recurrent tear through the superior labrum, along with marked infraspinatus and moderate to marked supraspinatus tendinopathy. In December 2018 and January 2019, the employee drove a van for the school hockey team, working a total of 12.75 hours. She had no work restrictions at that time.
The employee underwent a right shoulder arthroscopy, distal clavicle excision, bicep tenodesis, and labral debridement on April 30, 2019. Following surgery, the employee underwent physical therapy through October 8, 2019, and reported achiness in her shoulder. No work restrictions were assigned.
Beginning in October 2019, the employee worked at a community education program reading books to children and supervising gym play. She had no physical difficulties with the job, and worked part time until the program ended for the season in March 2020. The 450-week time frame in which the employee would have been eligible to collect temporary partial disability benefits elapsed as of November 15, 2019.[1]
The employee continued to have symptoms in her right shoulder. She had a repeat MRI on December 5, 2019, and was diagnosed with right shoulder adhesive capsulitis resulting from a failed SLAP repair, as well as possible cervical spine radiculopathy. A cervical MRI performed on February 14, 2020, showed annular bulging at C4-5.[2] The employee underwent a right shoulder injection for her adhesive capsulitis on March 13, 2020, which provided temporary relief. Additional physical therapy was recommended.
In November 2020, the employee began working as an on-call substitute teacher at a school district in Wisconsin. From December 2022 to August 2023, she also worked intermittently as a cleaner. She secured a full-time substitute teacher position at the school district for the 2023-24 school year.
On October 4, 2023, Dr. Edward Szalapski examined the employee at the request of the employer. With regard to the right shoulder, Dr. Szalapski opined that the April 1, 2011, injury caused a labral tear, that the ongoing pull of the longhead of the bicep tendon into the repaired area after the first surgery likely necessitated the second surgery, that all medical treatment to the right shoulder was reasonable and necessary, that the employee should undergo periodic x-rays to monitor for degenerative arthritis, and that her shoulder condition precluded her from returning to work as a law enforcement officer due to her loss of motion and strength.
On June 6, 2024, a certified nurse practitioner completed a report of workability for the employee’s teaching job. The restrictions prohibited lifting over ten pounds repetitively, lifting above the shoulder, restraining students, or looking down for long periods, and allowed 15-minute breaks when pain increased. These were the first restrictions assigned to the employee since July 11, 2011.
Qualified Rehabilitation Consultant (QRC) Angie Hunter conducted an initial consultation for rehabilitation services on May 30, 2024, and determined the employee was eligible for statutory vocational rehabilitation services. During the summer, the employee paid $1,775 for a teaching licensing program and a license fee. A Rehabilitation Plan, dated July 3, 2024, provided that the employee was not able to return to her date-of-injury occupation, that the vocational goal was to return the employee to work for a different employer, and that placement services would be provided to assist the employee “with a permanent return to suitable, gainful employment.” (Ex. K-1.) Many services were to be provided, including the services at issue on appeal: a transferable skills analysis, an employability analysis, and a labor market survey should an area of retraining be identified. The plan also included exploration of retraining. Rehabilitation Plan Amendments were filed on October 11, 2024, and February 12, 2025. Each amendment was filed to extend the employee’s rehabilitation services and to monitor her current employment for physical and economic suitability. Both amendments listed exploration of retraining as a service to be performed. The employer made no objections to the rehabilitation plan or to the amendments.
At the request of the employer, QRC Suanne Grobe provided an independent vocational report dated July 3, 2024. In that report, she opined that the employee had been underemployed by choice, and that based on her geographic area and transferable skills, her earning capacity was between $45,760 and $64,584 per year. While she opined that the employee’s current earnings were not reflective of her earning capacity because she earned a higher wage while employed with the police department, she stated that a comprehensive labor market survey was neither reasonable nor necessary as there were no objective vocational barriers limiting the employee’s ability to perform the essential functions of most occupations for which she was otherwise qualified. Further, she noted that based on the restrictions set forth by Dr. Szalapski, the employee could work without restrictions but not as a police officer, and stated that she was not eligible for a rehabilitation consultation or vocational rehabilitation services.
The employee was hired as a full-time first-grade teacher beginning on August 26, 2024, with earnings of $56,300 per year. On March 10, 2025, QRC Hunter noted that the employee’s position as a first-grade teacher was more physically demanding than expected and therefore might not be a sustainable position for her.
Dr. Jack Bert examined the employee at the request of her attorney and issued a report dated December 2, 2024. Dr. Bert opined that the employee was status post-right shoulder labral tear with recurrent tearing, right shoulder debridement with persistence of a small tear pattern, and bicep tenodesis. He also stated that her right shoulder condition was directly related to her 2011 work injury, that her treatment was reasonable and necessary, and that she cannot work in law enforcement. Dr. Bert recommended restrictions of avoiding overhead work and lifting more than 20 pounds, and that she obtain a second opinion regarding her right shoulder condition.[3] In an addendum report dated January 2, 2025, Dr. Szalapski agreed with Dr. Bert’s permanency rating of three percent for resection of the distal clavicle and added a five percent rating for loss of motion per Minn. R. 5223.0450, subp. 4(A)(1)(c).
The employee filed a claim petition seeking benefits related to her admitted right shoulder injury and a claimed cervical injury. After the hearing, the compensation judge issued a findings and order addressing several issues, finding that the employee’s cervical condition was not related to her work injury and denying all benefits related to that claimed injury. He also denied all wage loss benefits, finding that her wages prior to August 2024 were voluntarily sporadic, minimal, and not reflective of her earning capacity. Temporary partial disability benefits beyond August 2024 were denied because her eligibility to collect such benefits lapsed as of November 15, 2019. The compensation judge awarded reimbursement of the employee’s out-of-pocket vocational rehabilitation expenses of $1,775 for the cost of the teacher licensing program and fee, but denied the claims for a transferable skills analysis, a labor market survey, and an employability analysis. The employee appeals the compensation judge’s denial of these vocational rehabilitation services.
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).
An injured employee is qualified for rehabilitation services “where the employee is permanently precluded from returning to the date-of-injury job; is not expected to return to suitable gainful employment with the date-of-injury employer; and “can reasonably be expected to return to suitable gainful employment through the provision of rehabilitation services . . . .” Minn. R. 5220.0100, subp. 22. The circumstances of the employee’s employment history in this case are generally undisputed. The employee sustained a work-related injury while working as a police officer for the employer in 2011 and resigned from that position in 2018, and also indicated that she was retiring from law enforcement. She later reentered the labor market, initially working part time in seasonal jobs and as an on-call substitute teacher and a cleaner, then worked in a substitute teacher position for the 2023-24 school year and as a first-grade teacher for the 2024-25 school year. At the time of her injury in 2011, the employee’s weekly wage was $1,457.90, or $75,810.80 per year. At the time of the hearing in 2025, she was earning $56,300 per year, which was a wage loss of $19,510.80 per year. The employer’s vocational expert opined that the employee could earn between $45,760 and $64,584 per year. We also note that the employee is no longer entitled to temporary partial disability benefits, which would have helped bridge the gap in her pre- and post-injury income.
The employee, for medical reasons related to her work injury, cannot return to her date-of-injury job as police officer, and is not expected to return to work for the date-of-injury employer. The compensation judge determined that the employee was gainfully employed without a significant earnings/earning capacity differential and denied the employee’s claim. We conclude that the compensation judge used an incorrect standard to assess the employee’s entitlement to rehabilitation services. Gainful employment is not specifically defined in the Workers’ Compensation Act, but in the context of the statute and rules adopted to implement the Act, the term refers to employment that is regular, as opposed to sporadic, and provides a steady income. Gainful employment does not necessarily meet the standard of suitable gainful employment or preclude an employee from receiving vocational rehabilitation services.
The goal of rehabilitation is not gainful employment, but rather suitable gainful employment. “Suitable gainful employment” is defined as “employment which is reasonably attainable and which offers an opportunity to restore the injured employee as soon as possible and as nearly as possible to employment which produces an economic status as close as possible to that which the employee would have enjoyed without disability.” Minn. R. 5220.0100, subp. 34. This is consistent with the intent of rehabilitation, which is “to restore the injured employee so the employee may return to a job related to the employee’s former employment or to a job in another work area which produces an economic status as close as possible to that the employee would have enjoyed without disability.” Minn. Stat. § 176.102, subd. 1(b). Under Minn. R. 5220.0100, subp. 29, rehabilitation services include vocational rehabilitation, which involves “coordination of services by rehabilitation providers under a rehabilitation plan to achieve the goal of suitable gainful employment.” Minn. R. 5220.0100, subp. 37.
The compensation judge’s determination that the employee’s gainful employment at a wage loss precludes an award of rehabilitation services conflicts with the statutory provision that she is entitled to an opportunity to be restored to an economic status she would have enjoyed without disability. The vocational rehabilitation services requested by the employee are related to an exploration of retraining. Retraining is considered where other services are not likely to lead to suitable gainful employment. Minn. R. 5220.0750, subp. 1. The Minnesota Supreme Court has indicated that an employee is entitled to retraining in order to restore an employee’s impaired earning capacity. Siltman v. Partridge River, Inc., 523 N.W.2d 491, 51 W.C.D. 282 (Minn. 1994) (where an employee had completed a program to qualify for a higher wage but was injured at work before he could start in that field, the employee’s earning capacity was higher than his wage at the time of the injury and he was entitled to an evaluation for retraining). In Graves v. Virginia Reg’l Med. Ctr., No. WC06-296 (W.C.C.A. June 26, 2007), this court affirmed an award of exploration of a retraining plan where the employee had a significant wage loss with no showing that the employee’s earnings would be restored to that which she would have enjoyed without the work injury. Where an employee has an impaired earning capacity as a result of a work injury, the employee is entitled to an evaluation for consideration of a retraining plan. Johnson v. Arctic Cat, 64 W.C.D. 106, 109 (W.C.C.A. 2004) (where the employee’s wage nine years after the date of injury was still less than the date-of-injury wage, the employee’s earning capacity was impaired and exploration of retraining was supported); see also Budke v. St. Francis Med. Ctr., 70 W.C.D. 592, 599 (W.C.C.A. 2010) (a labor market survey and other steps to explore the feasibility of retraining were appropriate where the employee had an impaired earning capacity related to the work injury). We note that exploration of retraining is different from consideration of a specific retraining plan. Approval of a specific retraining plan was not an issue before the compensation judge nor before this court on appeal.
Suitable gainful employment is the intent of the rehabilitation statute and the goal of the rehabilitation services sought in this case. The employee was working at a wage loss and cannot return to her date-of-injury occupation. Further, the vocational evidence shows her potential for higher earnings. Therefore, she “can reasonably be expected to return to suitable gainful employment through the provision of rehabilitation services” under Minn. R. 5220.0100, subp. 22, and is qualified for rehabilitation services. In addition, the employee’s rehabilitation plan indicated that services would be provided to assist the employee to return to suitable gainful employment with a different employer, including the requested services and the exploration of retraining. Without the employee receiving those services, which could lead to employment with a higher wage, a determination cannot be made that she is working in a position “which produces an economic status as close as possible to that which the employee would have enjoyed without disability.” Minn. R. 5220.0100, subp. 34. The compensation judge erred by denying the employee’s claimed vocational rehabilitation services as premature,[4] and we reverse that denial.
[1] Minn. Stat. § 176.101, subd. 2(b), provides that temporary partial compensation may not be paid after 450 weeks after the date of injury.
[2] The employee also claimed a cervical injury occurring on April 1, 2011, or in the alternative, as a consequence of the admitted right shoulder injury. The compensation judge found that the employee failed to prove by a preponderance of the evidence that her cervical spine condition was work related under either theory, and those findings were not appealed. (Findings 48 and 49.)
[3] The parties stipulated that the employer would approve a formal request for a second opinion of the employee’s right shoulder condition.
[4] In their brief, the employer also contends that the compensation judge appropriately considered the employee’s decision to retire from her position as a police officer as a factor in denying the rehabilitation services. We disagree with the assertion that the judge relied on the employee’s retirement in making his determination. The judge mentioned comparing the employee’s current earnings with what her earnings would have been in law enforcement had she not retired, but did not indicate that her voluntary retirement was a factor in denying her rehabilitation claim. We note that an injured employee’s termination of employment, voluntary or involuntary, suspends entitlement to workers’ compensation benefits, but termination does not bar future eligibility for benefits when there is a causal relationship between the employee’s wage loss and the work-related disability. See, e.g., Marsolek v. Geo. A. Hormel Co., 438 N.W.2d 922, 41 W.C.D. 964 (Minn. 1989) (discharge for misconduct); Johnson v. State, Dep’t of Veterans Affairs, 400 N.W.2d 729, 39 W.C.D. 367 (Minn. 1987) (voluntary termination); Mielzarek v. SourceTech Corp., slip op. (W.C.C.A. Mar. 6, 1997) (termination for reasons unrelated to the work injury suspends the employee’s entitlement to workers’ compensation benefits). The employee’s retirement or resignation from the employer does not preclude her from renewing eligibility for rehabilitation services.