SHERI L. MAKI, Employee,
v.
LEISURE HILLS CARE CTR. and AMERICAN COMPENSATION INS., Employer-Insurer/Appellants.
Minnesota Workers Compensation
Workers' Compensation Court of Appeals
February 19, 1999
HEADNOTES
PRACTICE
& PROCEDURE - MATTERS AT ISSUE. Where the dispute
surrounding the employee's termination of employment with
the employer went to proving the second element of the
'qualified employee' definition, that the employee
could not reasonably be expected to return to suitable
gainful employment with the date-of-injury employer, and
where the employer and insurer had repeatedly insisted on the
voluntariness of the employee's resignation as a basis
for denying the rehabilitation benefits at issue, the
compensation judge's suggestion that the employee's
termination from employment might have been less than
voluntary was not subject to vacation for being beyond the
judge's scope of authority.
PRACTICE
& PROCEDURE - MATTERS AT ISSUE. Where the only
issues at hearing were the employee's entitlement to
rehabilitation benefits and certain medical benefits, the 3e
suitability of the employee's job offer from the employer
was not at issue, and the judge's finding that the
employee did not refuse a suitable 3e job offer was modified
to indicate only that the employee's refusal of the job
was not unreasonable.
REHABILITATION
- SUBSTANTIAL EVIDENCE. Where the employer and insurer
did not appeal from the compensation judge's conclusion
that the employee was a "qualified employee" for
rehabilitation purposes, where the employee's
chiropractor had concluded that the employee "will
require a varying degree of care indefinitely for her lower
back pain" and "will likely be limited now and in
the future to light duty type of employment," and where
the chiropractor had noted several physical activities that
currently triggered the employee's pain, the compensation
judge's conclusion that the pain-triggering activities
listed by the chiropractor constituted "permanent"
was vacated, and the the judge's finding was modified to
retain the conclusion that the employee was permanently
precluded from returning to her pre-injury occupation while
eliminating the judge's direct attribution of that
preclusion to the pain-triggering activities specified.
Affirmed
in part and modified in part.
Determined by Pederson, J., Wheeler, C. J., and Wilson, J.
Compensation Judge: Donald C. Erickson
OPINION
WILLIAM R. PEDERSON, Judge
The
employer and insurer appeal from three of the compensation
judge's findings, on grounds that they do not relate to
issues before the judge for determination. We affirm in
part and modify in part.
BACKGROUND
On
January 4, 1995, Sheri Maki [the employee] sustained a
work-related injury to her low back while employed full time
as a nursing assistant with Leisure Hills Care Center [the
employer]. The employee was in her seventh month of
pregnancy at the time of her injury. On January 6, 1995,
the employee saw Dr. Jennifer Cornell regarding the
injury. Dr. Cornell diagnosed low back strain and
released the employee to return to light duty. The
employee's back pain continued, and on January 24, 1995,
she was examined in Dr. Cornell's absence by Dr. T. R.
Edwards. Dr. Edwards took the employee off work for
another week, and the employer and its insurer commenced
payment of benefits.
At the
employee's next appointment, on January 31, 1995, Dr.
Cornell spent half an hour with an agent of the insurer,
ultimately agreeing on a work-hardening plan for the
employee.
1 Under that plan, the employee was
to do no bending or lifting over twenty pounds, was to
alternate between sitting and standing, and was to rest for
fifteen to thirty minutes every two hours. Also under
the plan, the employee was to perform only "[d]uties as
comfortable" and was to "vary work based on how she
feels." Notwithstanding this plan, three days later
the employer placed the employee on maternity leave. Two
months after that, the employee delivered her child. The
employee had planned to return to her job in mid July, but on
July 23, 1995, she resigned from her job to stay home with
her new baby, explaining on her resignation notice that she
did "not want changing shifts on Part time
position."
On
October 9, 1995, the employee commenced treatment for her low
back with chiropractor Dr. Scott McBride, upon recommendation
of her doctors. On April 22, 1996, after treating the
employee for about six months, Dr. McBride completed a Health
Care Provider Report, indicating that the employee had
reached maximum medical improvement [MMI] from her work
injury on March 22, 1996. Dr. McBride also concluded
that the employee was subject to a 3.5% whole body permanent
impairment as a result of her injury, and he released her to
return to work without restrictions.
On
January 6, 1997, the employee filed a Rehabilitation Request,
seeking a consultation for rehabilitation assistance. In
her request, the employee explained that the work plan
devised for her at the end of January 1995 had been
physically intolerable for her. She went on to state
that, when she had indicated that intolerance to the
employer, she
was advised by my employer to either take maternity leave or
lose my job. Rather than lose my job, I took maternity
leave from February 1, 1995 until August, 1995. At the
end of my maternity leave, the employer
...
