Langa v. Fleischmann-Kurth Malting Co.

481 N.W.2d 35, 1992 Minn. LEXIS 38, 1992 WL 24177

Opinions

COYNE, Justice.

Employer Fleischmann-Kurth Malting Company and its insurer Old Republic Insurance Company seek review of a decision of the Workers’ Compensation Court of Appeals affirming an award of custodial day care benefits to employee Richard Lan-ga. At issue is whether Langa is entitled to custodial day care benefits pursuant to Minn.Stat. § 176.102, subd. 9(c) (1990). We reverse.

The facts of this case are not in dispute. On August 16, 1988 Langa sustained a severe compensable injury to his right knee. Despite four intervening surgical procedures intended to restore use of his knee, neither Langa’s treating physician nor the employer’s examining physician was of the opinion that Langa was ready to resume employment as of the time of the compensation hearing or that he had then reached maximum medical improvement. Although Langa does prescribed special exercises daily, his knee has shown little sign of improvement. Langa’s day consists of dressing his three children — who were 4V2 years, 3 years, and 10 months old at the time of the compensation hearing — showering, eating breakfast, exercising, folding laundry when necessary, and reading. Following his doctor’s advice to stay off his feet as much as possible and to lift from a sitting position, Langa remains at home and rests his knee in the hope that it will improve so that he can resume his preinju-ry lifestyle.

After Langa had lost 60 days of work time because of his knee injury, he selected a qualified rehabilitation consultant. The Q.R.C. gave him an interest test, which he took at home. Once or twice a month Langa and the Q.R.C. have spoken over the telephone about his physical condition, but his interaction with the Q.R.C. has never taken him out of his house.

Because Langa has not received medical approval for the resumption of any work activity, Langa’s Q.R.C. has never formulated a rehabilitation plan for him. Nevertheless, Langa initiated this proceeding by filing a medical request claiming entitlement to custodial day care benefits pursuant to Minn.Stat. § 176.102, subd. 9(c) (1990). Prior to his injury, Langa and his wife had arranged their work schedules to accommodate child-rearing obligations. Langa had taken care of their three small children during the morning and early afternoon hours and worked from 3:30 p.m. to 11:30 p.m. Mrs. Langa had worked from 6:30 a.m. to 2:30 p.m. and taken care of the children during the late afternoon and evening. Until Langa’s injury, then, the Langas did not require the services of a day care provider; but although Langa dresses the children in the morning, since Langa’s injury the children have been placed in day care. The parties have stipulated that Langa’s work-related injury has rendered him unable to tend adequately to his children’s needs and that the expense incurred for custodial day care is reasonable. A rehabilitation and medical specialist ruled that Langa was not entitled to recover custodial day care costs. Minn. Stat. § 176.106 (1990). Langa then requested a formal hearing; the compensation judge awarded custodial day care benefits pursuant to Minn.Stat. § 176.102, subd. 9(c) (1990), on the ground that medical treatment and convalescence constituted “physical * * * rehabilitation” within the meaning of Minn.Stat. § 176.102, subd. 1; and the WCCA affirmed.

As we have previously noted in respect of the predecessor of Minn.Stat. § 176.102 (1990), the statute itself is hardly a model of clarity:

It speaks of ‘vocational rehabilitation,’ ‘rehabilitation,’ ‘rehabilitation under a plan,’ and ‘rehabilitation program’ without defining those terms and without clear indication of the purpose for which they were used.

Rippentrop v. Imperial Chemical Co., 316 N.W.2d 514, 516 (Minn.1982). In 1983 the ambiguity was deepened by the insertion in subdivision 1 of the word “physical” so that section 176.102, subdivision 1 now refers to “physical and vocational rehabilitation.” ¹ Nevertheless, we have consistently concluded that rehabilitation fundamentally means assistance in preparing for or obtaining employment. Vait v. Merrillat Industries, 431 N.W.2d 536, 538 (Minn.1988); Hanmer v. Wes Barrette Masonry, 403 N.W.2d 839, 840 (Minn.1987); Graves v. Glen Lake State Sanitarium, 277 N.W.2d 196, 197 (Minn.1979); Norby v. Arctic Enterprises, Inc., 305 Minn. 519, 521, 232 N.W.2d 773, 775 (1975). The purpose of rehabilitation is to arm injured workers who are disabled from returning to their preinjury jobs with the skills required to return them to jobs related to their former employment or to jobs that produce an economic status as close as possible to that which the employee would have enjoyed without disability and also to encourage injured workers to increase their employa-bility by acquiring such skills through training or retraining. E.g., Graves, 277 N.W.2d at 197. We have also said that, as used in the context of workers’ compensation, “rehabilitation” encompasses retraining, on-the-job training, and direct job placement. Vait, 431 N.W.2d at 538.

At the time of the compensation hearing the employee’s injury was still under medical management; his physician was supervising and monitoring his convalescence. Traditionally, the primary purpose of medical care and treatment is to return the employee, as nearly as possible, to his or her preinjury state of wellness. That medical care and treatment may return the employee to his or her preinjury employment is surely a desirable outcome, but it is secondary to the primary purpose. Here both treating and examining physicians were of the opinion as of the time of the compensation hearing that the employee was not ready to resume employment and that he had not reached maximum medical improvement. As is usually the case, the employee’s Q.R.C. deferred formulation of any rehabilitation plan until the employee’s level of medical stabilization became known, contenting herself in the meantime with occasional telephone inquiries regarding the employee’s condition. The absence of a rehabilitation plan — i.e., “a written document completed by a qualified rehabilitation consultant and which describes the manner and means by which it is proposed that a qualified employee² may be returned to suitable, gainful employment through the use of rehabilitation service”— is significant. Minn.R. 5220.0100, subp. 9 (1991). A rehabilitation plan is not prepared in every case in which an employee has sustained a compensable injury but only in those cases in which the Q.R.C. determines that rehabilitation would significantly reduce or eliminate the decrease in employability. Minn.R. 5220.0400, subp. 1 (1991). Of course, the determination that rehabilitation would significantly reduce or eliminate any decrease in employability and any decision about the kind of rehabilitation services which would be useful in achieving that end cannot be made until the employee’s condition stabilizes sufficiently that the nature and extent of permanent disability and its effect on the employee’s employability are known. Once the Q.R.C. decides that a rehabilitation plan would be useful, the rehabilitation plan must not only be in writing, it must be agreed upon by the Q.R.C., the employee, and the employer and submitted to the commissioner of the department of labor and industry before implementation and be approved by the commissioner. Minn.R. 5220.0400 (1991). An employer is responsible for rehabilitation expenses pursuant to Minn. Stat. § 176.102, subd. 9 (1990), only in those cases in which a rehabilitation plan is in existence, and in those cases the employer’s liability is limited to those rehabilitation services, such as custodial day care, set out in the plan or necessary for its implementation. In contrast, an employer is liable in every case for medical services necessitated by a compensable injury, but the workers’ compensation act makes no provision for the cost of custodial day care incurred while the employee is under medical care. See Minn.Stat. § 176.135 (1990). Therefore, although physical therapy directed particularly to enhancing the employee’s employability — specifically, to returning the employee “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 (1990) — and incorporated into a plan of rehabilitation may fall within the purview of section 176.102, subdivision 9, convalescence alone does not.

In the present case the employer is paying for the medical services provided the employee pursuant to Minn.Stat. § 176.135 (1990), which contains no provision for the payment of the cost of custodial day care. Until the employee has healed sufficiently that intelligent decisions can be made with respect to the necessity for and the nature and content of any rehabilitation plan, there is no basis for imposing liability on the employer pursuant to section 176.102, subdivision 9, for the reasonable cost of custodial day care or any other of the rehabilitation costs enumerated there. Unquestionably, the employee has sustained damages by reason of his inability to perform his preinjury child care duties. Workers’ compensation, however, is a statutory scheme estranged from common law liability and damages, and it affords benefits only pursuant to specific statutory provisions. Johnson v. Paul’s Auto & Truck Sales, 409 N.W.2d 506, 509 (Minn.1987). Because the act does not provide for the payment of the cost of custodial day care except for that incurred by reason of the implementation of rehabilitation, whether the provision of custodial day care is specified in the plan or only implicit in its terms, the cost of custodial day care during an employee’s convalescence prior to the initiation of a plan of rehabilitation is not reimbursable.

Reversed.

Footnotes

1

. Minn.Stat. § 176.102, subd. 1 (1990) reads in relevant part as follows:

176.102. REHABILITATION.

Subdivision 1. Scope. Rehabilitation is intended to restore the injured employee, through physical and vocational rehabilitation, 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. Rehabilitation to a job with a higher economic status than would have occurred without disability is permitted if it can be demonstrated that this rehabilitation is necessary to increase the likelihood of reemployment. Economic status is to be measured not only by opportunity for immediate income but also by opportunity for future income.

It is instructive, although hardly dispositive, to note that in 1991 a consolidated effort was made to rid subdivision 1 of the word "physical.” The authors of three independent bills that comprehensively amended the Workers’ Compensation Act struck “physical” from subdivision 1. See S.F. No. 596, 77th Leg. (1991); S.F. No. 1073, 77th Leg. (1991); and S.F. No. 1248, 77th Leg. (1991). S.F. No. 1248 was adopted by the legislature but vetoed by the governor.

2

. Minn. Rule 5220.0100, subp. 4 reads:

Subp. 4. Qualified employee. "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:

A. is permanently precluded or is likely to be precluded from engaging in the usual and customary occupation or position in which the individual was engaged at the time of injury; and

B. can reasonably be expected to benefit from rehabilitation services which could significantly reduce or eliminate the decrease in employability.