Jacob Smith v. Kmart/Sears Holding Co., WC18-6181 (January 3, 2019).
The employee appeals the compensation judge’s denial of his claim for temporary total disability benefits and denial of payment of outstanding vocational rehabilitation bills. Court affirms.
Jacob Smith (the “Employee”) suffered an injury to his back while working for Sears on August 4, 2016.
On October 22, 2016, the Employee presented at Premier Health of Plymouth with complaints of pain in the thoracic and lumbar spine as a result of the lifting injury at work. The Employee received restrictions from physical exercise for purposes of gym class at school. The Employee was also given weight lifting restrictions and limitations on bending and squatting. The Employee testified that he continued to work at Sears under these restrictions and would ask for help with lifting, if needed. He received regular chiropractic treatment with noted improvements into November. The employer and insurer admitted the work injury and paid for the Employee’s chiropractic care.
In November 2016, the Employee sought to limit his work schedule to only weekend hours so as to not interfere with his classes and to maintain his grades. He testified that he attempted to negotiate this schedule with Sears and was even looking for alternative employment opportunities that were limited to weekend hours. Because Sears continued to schedule the Employee for weekday hours, the Employee resigned on November 19, 2016. The Employee acknowledged in his testimony that resigning from his employment was not related to his August 4, 2016, work injury.
Shortly before the Employee’s resignation, the insurer’s claims adjuster was contacted with a request for authorization to complete a rehabilitation consultation of the Employee. After some correspondence back and forth, the claims adjuster approved medical management assistance on December 2, 2016. The QRC found the Employee eligible for services, in part, because she was not able to contact Sears to verify whether the Employee’s request for only weekend hours could be accommodated.
Upon receipt of rehabilitation consultation report, the claims adjuster emailed the QRC and the Employee’s attorney, stating that the Employee was not qualified for QRC services and requesting the QRC close her file. QRC acknowledged having received this email, and testified that she understood the insurer was disputing her services and that she was providing services at the risk of not being paid.
On December 30, 2016, a rehabilitation request seeking approval and payment of ongoing rehabilitation services was filed by the Employee, as was a request for certification of dispute. On January 3, 2017, QRC filed an R-2 rehabilitation plan and submitted an initial evaluation report. Therein, she indicated the vocational goal as return to work with Sears and noted her attempts to contact the employer so as to discuss accommodation of the Employee’s restrictions and availability. The following day, the claims adjuster again emailed QRC and reiterated that rehabilitation services would not be paid for as of December 21, 2016.
At the end of January, the Employee started a part-time job as a restaurant chef. This employment lasted for less than one week after the previous full-time chef, whom the Employee had been hired to replace, returned and was rehired. The Employee testified that while he was under work restrictions at that time, his leaving this employment was not related to those work restrictions.
During the short period of time the Employee was employed at the restaurant, his rehabilitation request came on for an administrative conference. The employer and insurer filed a rehabilitation request on the date of the conference, disputing that the Employee was qualified for rehabilitation services. In a decision filed January 31, 2017, the mediator/arbitrator determined that the Employee’s return to work at his new job should be monitored by the QRC for a period of 30 days to determine whether the new employment was suitable, and that at the end of those 30 days, the QRC was to file a plan closure form. However, by the time the decision was filed, the Employee’s new employment had already ended. The employer and insurer filed a request for formal hearing from the January 31, 2017, administrative decision on February 3, 2017. On February 8, 2017, the QRC circulated an amendment to the rehabilitation plan to reflect that the Employee was no longer working, and to add job search training and job development and placement services. Upon receipt of the plan amendment, the employer and insurer filed a rehabilitation request seeking to terminate the rehabilitation plan. The Employee filed a request for formal hearing from the January 31, 2017, administrative decision, as well as a claim petition seeking wage loss benefits, on February 7, 2017. The Employee’s claim petition, the employer and insurer’s rehabilitation request, and both parties’ requests for formal hearing were consolidated for hearing.
On February 21, 2017, Employee was released from physical restrictions by his provider. The QRC then filed a motion to intervene, and submitted a rehabilitation plan closure and report on March 6, 2017.
Lower Court’s Finding:
The consolidated pleadings came on for hearing before a compensation judge on January 10, 2018. At issue was the Employee’s claim for temporary total disability benefits for the time period of less than four weeks between January 29, 2017, when he was laid off at the restaurant, and February 21, 2017, when he was released from physical restrictions. Also at issue was the QRC’s claim for payment for services rendered after December 21, 2016, through the date of her file closure. By Findings and Order dated March 30, 2018, the compensation judge concluded that the Employee was not qualified for rehabilitation services. He denied the Employee’s claim for wage loss benefits and denied the intervention claim submitted by the QRC.
The Employee appeals.
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).
The Employee argues that the adjuster’s initial approval of limited medical management, and the administrative decision approving job monitoring for 30 days, constituted agreement that the employee was qualified for rehabilitation benefits, and therefore, the services rendered by the QRC were required by law and should be compensable. He argues that because he was qualified for services, the employer and insurer must establish good cause to terminate rehabilitation services under Minn. R. 5220.0510 and Halvorson, which they failed to do.
The Court disagreed with the Employee’s premise that he was qualified and eligible for rehabilitation benefits. The compensation judge found that the employee was not a qualified employee. The definition of a qualified employee is set forth in Minn. R. 5220.0100, subp. 22. Not only must the criteria set forth in the rule be met, the criteria must be met as a result of a work-related injury. The compensation judge found that the Employee resigned from his date-of-injury employment to focus on school, a reason unrelated to his work injury. He further found that the employee’s injury and restrictions did not prevent him from continuing his date-of-injury employment. Substantial evidence in the record, including the Employee’s own testimony, supports these findings and the Court agreed with the compensation judge’s determination that the Employee was not a qualified employee under Minn. R. 5220.0100, subp. 22.
The compensation judge went on to conclude that because the Employee was not a qualified Employee, the QRC was not entitled to reimbursement for services rendered after the employer and insurer disputed her determination. Following a rehabilitation consultation in early December 2016, the payment for which is not in dispute, the QRC determined the Employee was qualified. The employer and insurer did not agree with this determination, and while a rehabilitation request objecting to that determination was not immediately filed, the claims adjuster corresponded with the QRC to that effect upon receiving the report. As was cited to by the compensation judge, the QRC testified that she understood that her determination and ongoing services were in dispute. Nonetheless, she continued to render services, including the filing of a rehabilitation plan. The employer and insurer filed a rehabilitation request formally disputing whether the employee was qualified for services on January 24, 2017, the day of the administrative conference. See Minn. R. 5220.0130, subp. 3E. The Employee’s assertion that the adjuster’s initial approval for limited medical management constituted agreement that he was a qualified employee, and that services thereafter would be paid, is not consistent with the evidence in the record.
The Court also disagreed with the Employee’s argument that the QRC’s services dating back to December 2016 should be paid because of a January 31, 2017, administrative decision which approved monitoring the employee’s new job for 30 days. As of the date of administrative decision, the Employee was no longer working, thus there was no new job to monitor for suitability. Instead, the QRC developed and filed an amendment to the plan, which was not provided for in the administrative decision. Again, the QRC was aware that her qualified employee determination and ongoing services were in dispute. She acknowledged in her testimony that she risked not being paid for these services. Under these circumstances, the approach of the compensation judge and his denial of reimbursement for the claimed rehabilitation services were reasonable and supported by substantial evidence in the record. Because the employee was not a qualified employee under Minn. R. 5220.0100, subp. 22, he was not entitled to rehabilitation services, including the development and implementation of the rehabilitation plan. Because services should not have been commenced, there is no need to analyze whether services were properly terminated under Halvorson.
The Employee also appealed from the denial of his claim for temporary total disability benefits for the time period between the termination of his employment at the restaurant on January 29, 2017, and when he was released without physical restrictions on February 21, 2017. In his brief on appeal, the Employee argued that the compensation judge’s finding that the Employee stopped working at Sears for reasons unrelated to his work injury was clearly erroneous. He suggests that continued employment at Sears during the school year at the same or similar schedule as during the summer break was equivalent to a job offer, and that the employee rejected the job offer when he resigned on November 19, 2016. According to the Employee’s arguments, the job was not economically suitable because he could not be expected to work up to 30 hours per week while attending high school, and the job was not physically suitable because he testified that he occasionally asked for help with lifting duties.
The arguments presented by the Employee are only relevant for the time period immediately following his resignation from Sears in November 2016. However, for that time period, no wage loss benefits were claimed, paid, or addressed by the compensation judge. Rather, the Employee claimed entitlement to wage loss benefits for the time period following his termination from the restaurant in January 2017 until his release from restrictions a few weeks later. In his brief, the Wmployee argues that, after January 29, 2017, he is entitled to the recommencement of temporary total disability benefits under Minn. Stat. § 176.101, subd. 1(e)(1). The Court was not persuaded by the employee’s arguments. Benefits that have not been commenced cannot be recommenced.
The compensation judge denied the Employee’s claim for wage loss benefits upon finding that the employee resigned his job at Sears for reasons unrelated to his work injury, that being, his desire to focus on his high school studies. The judge found that the Employee’s employment at the restaurant also ended for reasons unrelated to his work injury, that being, the return and rehire of the previous chef. He found that while the Employee was under work restrictions at the time his employment at the restaurant ended, he was not medically restricted to working only weekend hours. Substantial evidence in the record supports the compensation judge’s findings. The Employee’s desire to limit his employment to part-time weekend hours at Sears, at the restaurant, and with regard to his job search, was motivated by his need to attend and succeed in his high school classes. While this motivation was reasonable for a 17-year-old student, any loss of earning capacity was not related to his work injury and the compensation judge concluded that the Employee was not entitled to benefits under such circumstances.