Decisions of The Workers' Compensation Court of Appeals
Haeg v. SEKO Worldwide, File No. WC06-227, Served and Filed January 4, 2007. The employee alleged an eye injury when struck by a golf ball during an event with one of the employer's clients. Primary liability was initially denied by the insurer, and the employer paid full wages during the eight weeks the employee was off work. The employee, medical interveners, and insurer reached a settlement agreement. The employer, however, obtained separate counsel and sought reimbursement for the eight weeks of wage loss. An offer was made and refused, and a stipulation was drafted allowing the employer to pursue reimbursement pursuant to a Parker-Lindberg proceeding. A hearing was held to determine if the stipulation should be approved. Compensation Judge Mesna issued an Award on Stipulation, approving the stipulation, and in a subsequent order denied the employer's motion for reimbursement for wages paid to the employee during periods of claimed TTD. The WCCA (Judges Johnson, Rykken and Stofferahn) affirmed. The WCCA noted that health and disability carriers which pay benefits when workers' compensation benefits are denied are entitled to seek reimbursement pursuant to Minn. Stat. § 176.191, subd. 3. In this case, however, the employer offered no evidence that the wage payments were made pursuant to a policy of accident and health insurance or group disability income coverage. Therefore, the WCCA concluded that this statutory provision does not apply to this matter. The WCCA then went on to state that an employer asserting reimbursement for wages paid to the employee is entitled to the same protection as an intervener, in that they are entitled to participate in settlement negotiations, and if they decline to settle, they can proceed to a hearing, at which time they have to prove that the employee's claim is compensable, including establishing the right to wage loss benefits and the right to reimbursement. The settlement agreement in this case preserved these rights for the employer. The WCCA agreed with the compensation judge that the employer failed to prove its claim. The WCCA held that proof of payment is not, standing alone, legally sufficient to establish a right to reimbursement. Rather, a "right of reimbursement is contractual and must be established by the language of a policy of insurance or a contract between the employee and the party paying the benefit." There is no evidence, in this case, that the employer paid the wage benefits pursuant to any contract or that the employee agreed to reimburse the employer in the event she received workers' compensation benefits.
Whitmore v. Holm Brothers Construction, Inc., File No. WC06-275, Served and Filed April 11, 2007. Following a work-related injury the employee began experiencing visual disturbances and tearing symptoms. His treating ophthalmologist did not expressly indicate that these conditions were related to the work injury. Further treatment was recommended to reevaluate the employee's condition. The WCCA (Judges Wilson, Rykken and Stofferahn) affirmed Compensation Judge Culnane's determination that the additional treatment is reasonable and necessary to cure and relieve the effects of the work-related condition. The WCCA acknowledged that the etiology of the employee's eye symptoms has not yet been ascertained, in part because of the employer/insurer's refusal to pay for the treatment and testing. However, the WCCA noted that the judge reasonably concluded that the treatment was compensable, "at least for purposes of ascertaining the nature and cause of the employee's continuing" complaints. See e.g. Sether and Klaven (medical treatment and diagnostic tests performed to investigate possible alternative causes of an employee's continued symptoms may be compensable, even if the employee's condition is ultimately found to be nonwork-related.)
Timmer v. Independent School District #482, File No. WC06-206, Served and Filed January 23, 2007. The employee sustained significant injuries when she fell 20-30 feet into a ravine while on a field trip with special education students. Liability was accepted and significant benefits were paid. Eventually the parties reached a full, final and complete settlement. Initially, following the injury the employee received home health care services. These services were discontinued, and the employee contracted with a cleaning agency. The cleaning agency provided housekeeping services two times per week, but no personal services or rehabilitation services. Initially, the employer paid for these services, but then took the position that the services were not covered by the Workers' Compensation Act. Nursing services are included in the type of medical care that can be considered reasonable and necessary to cure or relieve the effects of an injury. The question as posed in this case was whether the housekeeping services being provided to the employee could be placed under the heading of nursing services. The term "nursing services" is not defined in the statute, and previous decisions primarily dealt with family members providing services such as changing bandages, bathing and personal care assistance. See Alexander and Novotny. However, in Ross v. Northern States Power Co., the Minnesota Supreme Court reviewed the question of whether nursing services by a family member are compensable when an employee is not PTD. The Supreme Court held that if disability is PPD, TTD, or TPD only, nursing care to cure and relieve the effects of the injury must be furnished, but if disability is PTD, "a broader type of general nursing care is reimbursable." In the instant case, even though liability for PTD was settled, the parties still litigated the question of whether the employee was PTD, because of the employee's desire to claim a "broader type of general nursing care." The WCCA (Judges Stofferahn, Pederson and Wilson) affirmed the determination of Compensation Judge Schultz that the employee is PTD, but reversed the determination that the employer is responsible for the housekeeping services. The WCCA acknowledged that case law attempting to interpret the meaning of nursing services pursuant to Minn. Stat. § 176.135, subd. 1(b) has defined nursing services to "include not only medically-related and personal care services, but also housekeeping and home maintenance services if rendered necessary by the employee's disability." See Sorcan and Gunderson. However, in the instant case the services involved only cleaning services and no personal care services. It appears that the employee argued that the tasks involved in housekeeping would aggravate her symptoms. The WCCA held that while performing these services herself might aggravate the employee's pain, many permanently and totally disabled employees perform numerous activities only with increased pain. The WCCA held that a claim of increased pain is insufficient to establish that the services are medically necessary due to the employee's disability.
McIntyre v. Wilson Lines of Minnesota, File No. WC06-209, Served and Filed January 31, 2007. The employee claimed PTD benefits. The issue of PTD was previously litigated, and by an August 2004 decision the compensation judge found that the employee was not PTD. Two years later, without conducting a job search, and without any significant change in the restrictions, the employee filed another petition for PTD, claiming benefits dating back to the date after the first hearing. The WCCA (Judges Johnson, Rykken and Stofferahn) affirmed the determination of Compensation Judge Behr that the employee is entitled to PTD benefits dating back to the day after the last hearing. The WCCA rejected the employer's arguments that nothing had changed since the last hearing, and certainly that nothing changed in the 24 hours after the last hearing to make the employee PTD the day after his claim was initially denied. The WCCA noted that the doctrine of res judicata does not preclude a finding of PTD after the date of the last hearing, however, the employer argued that the employee must prove some material change in his condition in order to be entitled to PTD benefits. The WCCA rejected this claim, noting that just because the benefits were denied once, the employee's burden of proof did not increase. The same standard for PTD applied to the claims after the first hearing as to the claims before the first hearing. The WCCA further noted that substantial evidence supported the finding of PTD, in that the employee testified that his condition had worsened and that he was spending a substantial amount of each day in bed. Further, the QRC testified that the employee could not find sustained, gainful employment in his labor market. The independent vocational expert also testified that if the restrictions of the treating doctor were adopted, the employee was PTD.
COMMENT: This case is not significant for the facts or ultimate decision, but as a reminder that the evaluation of exposure in any given case must look beyond the predicted results of the immediate issue. This is particularly true with claims for PTD. As this case demonstrates, just because a claim for PTD may be premature today, the employee can renew the claim tomorrow, and potentially prevail.
Procedural Issues
Hanegmon v. Chisholm Health Center, File No. WC07-100, Served and Filed May 3, 2007. The WCCA (Judges Wilson, Rykken and Pederson) affirmed Compensation Judge Bonovetz's dismissal of the employee's Medical Request and two Objections to Discontinuance, with prejudice. It is very unusual for the OAH or the WCCA to allow dismissal with prejudice. However, in this case, the employee failed to appear for numerous depositions and delayed providing medical authorizations for several years. These actions continued even after orders were issued requiring cooperation with discovery. Noting the length of time, the orders of the OAH, the representation by competent counsel, the expense incurred by defense counsel, and the relatively small issues in dispute, the WCCA upheld dismissal of the pleading, with prejudice.
Liniewicz v. Muller Family Theatre, File No. WC06-253, Served and Filed March 21, 2007. The employer and insurer sought application of the retirement presumption of Minn. Stat. § 176.101, subd. 4 to resist payment of ongoing PTD benefits. The employee was injured in March 2002, and last worked in October 2002. From 2003-2006 the employee continued to receive rehabilitation assistance. The employee reached age 67 on January 9, 2006. However, in March 2006 the placement vendor closed his file, reporting that the employee was not capable of sustained employment on greater than a sporadic basis. The QRC issued a similar report. At hearing, the employee testified that it was not his intent to retire at age 67, because he enjoyed working, and needed money due to financial problems. Compensation Judge Hall awarded PTD benefits, but rejected the defense that such benefits should only be payable through the employee's 67th birthday. The WCCA (Judges Stofferahn, Pederson and Johnson) affirmed. On appeal, the employer and insurer argued that the only evidence supporting the employee's position was his own testimony, and that this was insufficient pursuant to the statute. The WCCA found, however, that retirement is a "permanent voluntary withdrawal from the labor market" (citing Szuba v. Wendy's Int'l.) and that the employee did not intend to voluntarily and permanently withdraw from the labor market when he turned 67. In addition, the WCCA noted that the employee continued to participate in vocational activities beyond his 67th birthday. Rehabilitation and job search ended not at the request of the employee, but at the request of the insurer when it recognized that the employee was not able to return to gainful employment.
Retraining
Custer v. I.S.D. No. 2154, File No. WC06-219, Served and Filed February 27, 2007. The WCCA, (Judges Rykken, Johnson, and Stofferahn) affirmed compensation Judge Arnold's approval of the employee's request for retraining. The employee sustained an admitted injury when she slipped and fell, while working as a junior high school art teacher. At the time of the injury, the employee also worked part-time weekday evenings (4:00 - 9:00 p.m.), 25 hours per week in a sedentary position for the billing department of Fingerhut Corporation. Her job duties involved talking to customers on the telephone. Following the work injury, the employee was released to work with restrictions. The school district accommodated the employee's need to lie down during breaks to relieve her back pain. Due to budget cuts within the school district, the employee's hours were cut to 3/4 time, but she was then able to return to work on a full-time basis by transferring from the junior high school to the senior high school, replacing a retiring full-time high school art instructor. The employee attempted to return to her part-time job at Fingerhut, but was later removed from that work by her treating physician, who opined that she was unable to tolerate static sitting or standing activity associated with her position at Fingerhut. He restricted the employee to working 40 hours of work per week. In addition to limiting the employee to lifting 10 pounds only occasionally, the permanent restrictions also required that the employee be able to sit, stand, walk, and change positions frequently, as needed, with 30 minutes duration for static positions of sitting. The restrictions required that the employee be able to lie down for 30 to 45 minutes every few hours during the day. Thereafter, the employee discontinued work at Fingerhut but continued to work on a full-time basis as a high school art teacher for the school district, where she attained weekly earnings which exceeded her combined pre-injury average weekly wages at the school district and Fingerhut. The employee requested retraining to obtain a Master of Arts degree. The school district refused, arguing that the employee was not entitled to retraining because her post-injury weekly wages exceeded those which she earned on the date of injury, and therefore, she had sustained no loss of earning capacity. The employer also argued that even if the employee was deemed entitled to retraining benefits, the retraining plan submitted by the employee was not appropriate, in that the 90-mile, one-way commute to school exceeded her restrictions. The employer also argued that the proposed course-work would require long periods of sitting, which the employee had testified she could not do.
Judge Arnold concluded that because the employee's restrictions precluded her from returning to her part-time position at Fingerhut, her economic status related to her Fingerhut position was not as close as possible to that which she would have enjoyed without her disability and injury, and therefore, she was entitled to proceed with the proposed retraining program. In response to the employer's concerns that the employee would be physically unable to complete the retraining program, the judge concluded that while the employee's physical impairments placed barriers on her completing the retraining program, the employee credibly testified that she believed she would be able to overcome those barriers.
The WCCA noted that "a loss of earning capacity is not synonymous with a loss of actual earnings. See Jerabek v. Teleprompter Corporation 255 N.W.2d 377, 29 W.C.D. 612 (Minn. 1977), and Siltman v. Partridge River, Inc., 523 N.W.2d 491, 51 W.C.D. 282 (Minn. 1994)." The WCCA noted that even though the employee's earnings from teaching steadily increased over the years, her injury-related restrictions have resulted in an overall loss of earning capacity and loss of "future opportunity" because she was unable to continue employment at Fingerhut, where she earned $159.22 per week, or approximately $8,280.00 per year, prior to the work injury. Because her work restrictions precluded her from returning to work at Fingerhut and restricted her from working more than 5 days per week, for more than 7 hours per day, the employee was no longer able to supplement her teaching employment with her part-time Fingerhut employment. The WCCA determined that under those facts, Judge Arnold reasonably concluded that the employee was entitled to retraining benefits to restore her lost earning capacity.
The remainder of the WCCA's decision then addressed the factors outlined in Poole v. Farmstead Foods, 42 W.C.D. 90, 978 (WCCA 1989) for determining whether a retraining program is appropriate. The WCCA found that each of the four Poole factors had been substantially satisfied, however, the WCCA focused its decision primarily on three of the Poole factors.
The WCCA noted that although the judge recognized that the potential physical demands on the employee's low back condition in traveling from her residence to the proposed school for retraining were "troubling," the judge ultimately believed that the employee and her physician were credible in their beliefs that the employee could complete the proposed retraining program, especially because she could complete it over a seven-year period of time. The employer argued that the employee's treating physician never formally reviewed the retraining plan to determine whether it would be physically suitable. The WCCA noted that the employee's treating physician "evidently discussed the proposed retraining program with the employee and her QRC, and suggested practical accommodations such as taking breaks, standing while in the classroom as opposed to sitting, and taking classes during summer months when the employee was not teaching at the high school." The WCCA held that substantial evidence supported the Judge's determination that the employee had the physical and academic capability to succeed in the retraining program.
COMMENT: In defending against requests for retraining when an employee does not have an actual loss of earnings in post-injury employment, as compared with the employee's pre-injury average weekly wage, it is critical to obtain information regarding the nature of the post-injury employment, whether it is anticipated to continue paying the employee wages that exceed the pre-injury average weekly wage, and whether the post-injury employment is itself, secure and stable. Where information obtained suggests that the post-injury earnings will not continue to exceed the pre-injury average weekly wage or that the post-injury employment is not secure or stable, the employer/insurer should attempt to have the rehabilitation plan amended to include job search for positions that would restore the "potential loss of earnings" or "lost opportunities." Particularly where, as in Custer, an employee is employed by two different employers at the time of injury and is only able to return to work for one employer post-injury, but where earnings in that post-injury employment exceed the employee's pre-injury average weekly wage in both employments, the employer/insurer may be well served by arguing that retraining is premature and by asserting that the proposed retraining plan should be amended to include job search for employments to replace the second job the employee is now precluded from working.
Erickson v. City of St. Paul, File No. WC06-258, Served and Filed April 16, 2007. The employee sustained an admitted work-related neck injury while working as a firefighter/EMT for the Fire Department of the City of St. Paul. He was 42 years of age at the time, with an associated pre-injury average weekly wage of $987.81. The employee was prohibited from returning to work as a firefighter. He was later offered a light duty, non-union position as an EMS coordinator at the same pay and grade level as the training officer position which he had been denied, and worked in that position from 2000 through July 2003. As of May 16, 2000, the employee was found to be permanently and totally disabled from work as a firefighter by the Public Employees Retirement Association (PERA). He continued working for the St. Paul Fire Department until June 30, 2004, when he resigned from that position. The employee admitted that his resignation was prompted by what he considered to be the "tenuous status" of his position with the Fire Department and by a statutory change related to the PERA which was to become effective July 1, 2004. Under the proposed statutory PERA revision, the employee was required to either elect disablement by June 30, 2004 or forfeit a significant portion of his disability income and related benefits. If the employee had not left his position as an EMS coordinator before the statutory changes became effective, he would have lost his lifetime PERA benefits, including medical benefits at a lower premium and survivor benefits at no cost. The employee determined that the economic benefits of the EMS coordinator position had changed significantly and that he had to accept disability benefits from the position to avoid adverse effects resulting from the statutory change. The employee began receiving PERA disability benefits of $3,280.00 per month. As of July 1, 2004, the employee sought replacement work in the public safety field. Recognizing the need for additional education in order to work in that field, the employee returned to school in July 2004 and obtained an associate of science degree in emergency health services in December 2004. The employee later filed a rehabilitation plan, which sought approval of his past course work completed to attain his associate of science degree in emergency health services, as well as his bachelor's of science degree in business and a proposed master's degree in public safety administration. The employer objected to the retraining plan and the employee's rehabilitation request was denied. The employee filed a request for formal hearing over the issue and, in the meantime, began course work relative to his master's degree. Compensation Judge Eckersen determined that the employee did not withdraw or retire from the labor market when he resigned from his position as an EMS coordinator and that he was an appropriate candidate for rehabilitation assistance and retraining. She concluded that the proposed retraining program was reasonable and appropriate to return the employee to an economic status as close as possible to that which he would have had without his work-related injuries. The WCCA (Judges Rykken, Johnson and Wilson) affirmed.
The employer argued that the employee was not qualified for rehabilitation services because he could not satisfy the criteria of Minn. R. 5220.0100, Subp. 22, regarding qualification for vocational rehabilitation services (a "qualified employee" means an employee who, because of the effects of a work related injury or disease, whether or not combined with the effects of a prior injury or disability...cannot reasonably be expected to return to suitable gainful employment with the date-of-injury employer.). The City of St. Paul argued that the employee could not return to suitable gainful employment with the City solely because he voluntarily resigned, and therefore, he was not qualified for rehabilitation services. The WCCA disagreed, holding that the employee qualified for PERA benefits because of his disability, not because he had resigned. The WCCA also observed that whether the employee had voluntarily terminated his employment, retired, or relocated did not terminate his entitlement to rehabilitation services. The WCCA held that the employee's testimony was credible that the economic status of his light duty position as an EMS coordinator changed significantly with the changes in PERA. The WCCA determined that there was no job security in the EMS coordinator position and that the employee's restrictions effectively precluded him from "bumping back" to other positions within the Fire Department. As such, the WCCA affirmed the judge's determination that the employee was qualified for rehabilitation services.
The employer argued that retraining was not necessary because the employee sustained no loss of earning capacity as a substantial result of his injuries. The employer argued that because the employee's wage that would be available to him had he not resigned his position as an EMS coordinator was more than his pre-injury wage, he was not qualified for rehabilitation assistance. The employer also argued that because the employee's decision to terminate his employment was based on economic ramifications associated purely with the changes in PERA law and was not causally related to his work injury, he had not suffered a loss of earning capacity. The WCCA disagreed, noting that a loss of earning capacity is not synonymous with a loss of actual earnings. The WCCA held that even though the employee's wage as an EMS coordinator was close to or may have exceeded his pre-injury wage, the employee's injury-related restrictions resulted in an overall loss of earning capacity, as those restrictions precluded the employee from returning to a career as a firefighter or paramedic and limited his future employment opportunities. On that basis, the WCCA held that the compensation judge reasonably concluded that the employee was entitled to retraining benefits to restore his lost earning capacity.
Neri v. U.S. Steel Corporation, File No. WC06-114, Served and Filed January 3, 2007. The employee began working for the employer in 1972. The employer conducted regular hearing screenings, and in 1993 notified the employee that his recent screening revealed a change in hearing in his left ear significant enough that he should see an ear doctor. The notice further stated that this loss was not related to job noise exposure. The employee did nothing with this notice and did not seek treatment. Over the next several years the employee's hearing loss continued to advance, and he did eventually seek medical treatment and then filed a claim for workers' compensation benefits. After the employer denied the employee's claims, a claim petition was filed, seeking to establish two dates of injury: January 21, 1993, the date of the letter; and Gillette injuries culminating in September 2001. The employer denied the employee's claims, and argued that the statue of limitations prevented the employee from pursuing benefits based upon the alleged 1993 injury. Compensation Judge Arnold found that the employer was estopped from asserting the statute of limitations defense because it had misrepresented to the employee that his hearing loss was not work-related, and the employee relied upon this alleged misrepresentation, to his detriment. The WCCA (Judges Pederson, Rykken and Johnson) affirmed the determination that the statute of limitations was tolled by the employee's reliance on the employer's representation that his condition was not work-related. The employer argued, at hearing, and on appeal, that the employee's long-term service on the union safety committee, along with his professed long-term use of hearing protection at home, should prevent him from asserting detrimental reliance on the employer's representation that the condition was not work-related. The employer also asserted that the evidence did not establish any intent to deceive the employee. The WCCA rejected these arguments on the basis that Compensation Judge Arnold found the employee to be "a most credible witness" when he testified that in 1993 he relied upon the employer's representation that his hearing loss was not work-related. The WCCA concluded that the judge was in the best position to determine the employee's credibility regarding reliance on the employer's representations. See Brennan. In addition, the WCCA found that it was not particularly relevant whether the employer intended to deceive the employee, rather, the question is whether the employee reasonably relied on the representation under the circumstances. The WCCA concluded that in "deference to the judge's assessment of the employee's credibility" the determination that the statute of limitations was tolled was affirmed.
COMMENT: This case represents yet another example of the difficulty in winning a case in Northern Minnesota, particularly in front of Compensation Judge Arnold. Judge Arnold is able to craft his decisions in such a way that they rely on credibility, or choice between conflicting medical opinions, determinations on which the case law requires the WCCA to grant extreme deference to a compensation judge.
Temporary Partial Disability
Strand v. United States Steel Corporation, File No. WC06-245, Served and Filed February 28, 2007. The employee sustained what was determined to be a work-related injury resulting in permanent restrictions. Due to an economic slow down, and her restrictions, she did not return to work with the date of injury employer. The employee had a high pre-injury wage, and post-injury found a part-time job. The evidence established that the employee never applied for any full-time employment, and made virtually no efforts to find additional employment, despite the fact that her physicians imposed no restrictions on the hours she could work. Despite these facts, Compensation Judge Arnold concluded that the employee's post injury earnings were an accurate reflection of her earning capacity. The WCCA (Judges Wilson, Rykken and Stofferahn) reversed the award of TPD benefits. The WCCA rejected the judge's attempt to apply the "presumption" that an employee's post-injury earnings are an accurate reflection of her earning capacity. The WCCA held that, given the employee's part-time employment status and lack of job search, the presumption does not apply. See Kunferman and Yacoub.