Goetzinger v. K-Mart CORP. and Minnesota Self-Insurers Sec. Fund/Berkley Risk Adm’rs.

Goetzinger v. K-Mart CORP. and Minnesota Self-Insurers Sec. Fund/Berkley Risk Adm’rs.  No. WC12-5492 (W.C.C.A. August 23, 2013)

K-Mart and its workers’ compensation insurer unsuccessfully appealed a compensation judge’s finding that an employee is qualified for the purpose of vocational rehabilitation services.

In 1983, an employee sustained a work-related lower back injury while working as a retail clerk at a K-Mart store.  The employee underwent surgery and was placed on permanent work restrictions not to lift or carry more than 25 pounds.   For the next 13 years, the employee provided daycare services, but was unable to continue because the frequent bending and lifting aggravated her lower back injury.  K-Mart and its insurer provided rehabilitation services and, a short time later, she was hired in an administrative role at an assisted living facility.  In July 1999, an Independent Medical Examination was completed and it was determined that the employee’s ongoing need for medical care and treatment was substantially related to the 1983 injury.  The employee had a second back surgery in 2001 and returned to work at the assisted living facility.  Unfortunately, her position was eliminated in 2008 during the economic recession.  Without seeking rehabilitation services, the employee was hired as a retail clerk at a Shopko store, but resigned after a few weeks due to a flare-up in back pain.  The employee then began working at a Quik Trip gas station but quit due to personal reasons unrelated to her injury.  In May 2012, the employee saw a Qualified Rehabilitation Consultant, who determined she was qualified for rehabilitation services.  A few months later the employee began working part-time as a school cook and enrolled in the school’s health insurance plan.

An employee is “qualified” for rehabilitiaton services if, “because of the effects of a work-related injury” the employee “is permanently precluded or is likely to be permanently precluded from engaging in the employee’s usual and customary occupation” and “can reasonably be expected to return to suitable gainful employment through the provision of rehabilitation services, considering the treating physician’s opinion of the employee’s work ability.”  Minn. R. 5220.0110, subp. 22, items A and C.  In this case, the W.C.C.A. upheld the finding that the employee was qualified because there was ample evidence in the record that the 1983 injury precluded her from engaging in her “usual and customary” occupation as a retail clerk, an occupation which requires significant lifting, bending, and stooping.  The employee testified that she was unable to perform these job duties following her injury.  Additionally, in January 2013, another doctor examined the employee and stated that the 1983 injury substantially contributed to the employee’s ongoing low back pain and disability, and provided several restrictions, including no lifting over 25 pounds.

“[R]ehabilitation is intended 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 provides an economic status as close as possible to that the employee would have enjoyed without disability.”  Minn. Stat. § 176.102, subd. 1(b) (emphasis added).  For purposes of rehabilitation services, the W.C.C.A. analyzed the employee’s pre- and post-injury “economic status,” which encompassed wages, fringe benefits (health, life, and disability insurance), the opportunity for future income and advancement, and also her age, education, interests, skills and employment history.

The W.C.C.A. noted that pre-injury, the employee had a full-time job with fringe benefits, including generous employer-paid healthcare, life and disability insurance.  But post-injury, she only had part-time employment  and had to pay out-of-pocket for medical benefits.  K-Mart and its insurer argued that the lack of employer-paid fringe benefits is an economic trend that is not causally related to the disability in question.  But the W.C.C.A. stated the question of eligibility centers on whether an employee’s economic status as a whole is “as close as possible to that which the employee would have enjoyed without the disability.”  K-Mart and its insurer also pointed out that the employee had a higher hourly wage in 2012/2013 than she did in 1983.  The W.C.C.A. explained an employee’s eligibility for rehabilitation services is measured differently than wage replacement benefits.    The W.C.C.A. also adopted the Qualified Rehabilitation Consultant’s testimony that the part-time job as a school cook did not return the employee to a suitable economic status when considering the cost of living increase since 1983.

Although the employee voluntarily resigned from her job at Quik Trip for personal reasons that were unrelated to her injury, the employee was not barred from rehabilitation services.  The record showed she made a diligent job search by seeking the assistance of the Qualified Rehabilitiaton Consultant.  The W.C.C.A. did not wish to deny rehabilitation services to someone simply because she was able to find some form of employment.  The W.C.C.A. also pointed out the employee is now 58-years-old and has a high school education.  Despite a desire to find full-time employment, she has been dealing with a 30-year work-related injury, which limits her employment opportunities.