(dissenting).
I respectfully dissent. In my opinion, the majority patently disregards the plain language of the Workers’ Compensation Act, language which defines the concept of rehabilitation and the expenses for which an injured employee may be compensated on the road to recovery to resume past employment or retrain for new work. Today’s opinion throws an obstacle in that road for this and other similarly situated injured employees who must get well before they can get back to work. This is not the intent of the Workers’ Compensation Act.
The record reveals that the employee was forced to use a knee immobilizer and crutches after his injury. Following each of his four surgeries, the employee took part in physical therapy. At present, the employee is going through physical rehabilitation at the direction of his doctors. Both the treating physician and the independent medical examiner agreed that if some improvement does not occur through the present course of physical rehabilitation, additional surgery may be necessary. None of these facts is disputed, and the parties agree that the employee is unable to work at this time. The question, therefore, is whether the Act affords the reimbursement of the day-care expenses the employee has incurred.
The majority holds that the workers’ compensation system was never intended to allow specific day-care benefits for workers in the process of physical rehabilitation. However, this conclusion disregards the language of the statute and defies common sense.
*39First, the majority claims that employees must be engaged in vocational rehabilitation to recover day-care costs because this has been the history of the Act. However, this ignores the fact that the Act expressly states that the restoration of an injured employee is intended through “physical and vocational rehabilitation.” Minn.Stat. § 176.102, subd. 1 (1990) (emphasis added). In other words, the majority claims that the legislature, in modifying “rehabilitation” with the word “physical”, could not have meant what it said.
It is true that this court has defined “rehabilitation” as “assistance in preparing for or obtaining employment” and that it “encompasses retraining, on-the-job training, and direct job placement.” Majority Op. at 36-37. These definitions certainly apply to vocational rehabilitation. It seems to me, however, that rehabilitation is both physical and vocational. The former is a prerequisite to the latter. Retraining only becomes necessary when an employee cannot return to his or her pre-injury job. Moreover, retraining is only one method of restoring an injured employee to “an economic status as close as possible to that the employee would have enjoyed without disability” after physical rehabilitation has brought the employee to maximum medical improvement. Minn.Stat. § 176.102, subd. 1 (1990); see also Vait v. Merillat Indus., 431 N.W.2d 536, 538 (Minn.1988) (formal retraining “one of many possibilities” for rehabilitation). Indeed, had the employee in this case reached a point where his physical rehabilitation allowed him to go back to work on a limited basis or to begin a vocational retraining program, he would be entitled to custodial day-care benefits under Minn.Stat. § 176.102, subd. 9(c). Even the majority concedes the availability of benefits in this situation. See Majority Op. at 38.
It is my position that the majority puts the cart ahead of the horse by allowing day-care costs to be paid when the employee is in retraining or engaged in a “rehabilitation plan,” but not when that employee is under physical rehabilitation. This rule penalizes employees who are more seriously injured than others. It is a broad, general objective of the statute to rehabilitate physically an injured worker so that the employee may return to his or her original job. See Minn.Stat. § 176.102, subd. 1 (“Rehabilitation is intended to restore the injured employee * * * so the employee may return to a job related to the employee’s former employment.”). The majority’s holding will allow a less seriously injured employee who is able to take part in a vocational rehabilitation plan to receive custodial day-care benefits while denying them to the employee who is not yet well enough to consider retraining or rehabilitation.
In addition, the employee here is already engaged in a rehabilitation plan, albeit not in the formal sense of retraining at an educational facility. However, we rejected such a formalistic approach in Vait, 431 N.W.2d at 538. There, we said that
there is nothing in [Minn.Stat. § 176.-102,] subdivision 9 that limits liability for daycare and travel expenses to “formal” retraining at an educational facility and excludes liability for such expenses when the employee is similarly situated financially while participating in an “informal” on-the-job training program.
Id.
Moreover, even the employer/insurer's attorney, before the compensation judge at the April 11, 1990 hearing, conceded that a formal plan is not always necessary for an employee to receive benefits under subdivision 9. In my view, the employee’s physical rehabilitation in this case is precisely the type of informal program which is aimed at increasing his employability or earning capacity; accordingly, the custodial day-care costs incidental to that rehabilitation should be reimbursed.
The majority’s formalistic approach contravenes other language of the Act as well. Rehabilitation services, through which rehabilitation plans are realized, are services
required to determine an employee’s eligibility as a qualified employee, and service designed to return an individual to suitable, gainful employment by returning the individual to a job with the *40former employer or to a job related to the individual’s former employment. * * * The service may include, but is not limited to, medical evaluation, medically prescribed physical rehabilitation, work evaluation, counseling, job analysis, job modification, job placement, on-the-job training, or retraining.
Minn.R. 5220.0100, subp. 10 (1991) (emphasis added). Here, the employee is employing rehabilitation services in the form of medical evaluation and medically prescribed physical rehabilitation as a means of returning to his pre-injury work status. In my view, the day-care costs necessitated by this rehabilitation are those to which an injured employee is entitled under subdivision 9. In addition, as the employee maintains, the commissioner and the compensation judge have the discretion to “make determinations regarding rehabilitation issues not necessarily part of a plan including * * * determinations regarding whether an employee is eligible for * * * the benefits under subdivisions 9 and 11 to which an employee is entitled.” Minn.Stat. § 176.102, subd. 6 (1990) (emphasis added). Both the compensation judge and the Workers’ Compensation Court of Appeals agreed that the employee was entitled to the day-care benefits under subdivision 9. I would affirm this determination because there is substantial evidence in the record supporting the award.
When an employee is seriously injured, as was the employee in this case, the first step is physical rehabilitation. There is little point in considering retraining if the employee cannot go back to work because retraining becomes a possibility only after some form of physical rehabilitation has taken place. Then it makes sense to develop a plan for vocational retraining or rehabilitation. On the other hand, physical therapy and rehabilitation may not be successful and the employee may remain disabled; at that point, however, the employee’s maximum medical improvement and permanent partial or permanent total disability will determine the type and duration of benefits available.
Finally, the majority states that workers’ compensation “is a statutory scheme estranged from the common law of liability and damages, and it affords benefits only pursuant to specific statutory provision.” Majority Op. at 38 (citing Johnson v. Paul’s Auto & Truck Sales, 409 N.W.2d 506, 509 (Minn.1987)). In my view, there is ample support in the language of the statute for the reimbursement of custodial daycare costs in this case. Rehabilitation may be physical or vocational. Although the majority wishes to characterize the term as “ambiguous,” the legislature cannot be held to have restricted the concept of rehabilitation when it added the word “physical” to Minn.Stat. § 176.102, subd. 1. On the contrary, the legislature has been “significantly expanding” the concept for many years. See Rippentrop v. Imperial Chemical Co., 316 N.W.2d 514, 516 (Minn.1982) (discussing 1979 amendments).
Accordingly, I would affirm the decisions of the compensation judge and the Workers’ Compensation Court of Appeals and hold that custodial day-care costs are reimbursable for an injured employee undergoing physical rehabilitation.