CINDY WEME, Employee, v. INDEPENDENT SCHOOL DIST. # 94, SELF-INSURED/BERKLEY ADM=RS, Employer/Appellants.
WORKERS= COMPENSATION COURT OF APPEALS
OCTOBER 13, 2000
REHABILITATION - RETRAINING. Substantial evidence supports the compensation judge=s findings that the Poole factors were met and the award of a retraining program.
Determined by: Rykken, J., Johnson, J., and Pederson, J.
Compensation Judge: Gregory A. Bonovetz
MIRIAM P. RYKKEN, Judge
The employer and insurer appeal from the compensation judge=s determination that the employee is eligible for retraining benefits pursuant to Minn. Stat. ' 176.102. We affirm.
Cindy Weme, the employee, worked in the school kitchens for the self-insured employer, Independent School District #94-Cloquet, between 1983 and 1997. When initially hired in 1983, the employee worked irregular hours as a substitute. By 1988, the employee began working in the kitchen three and a half hours per day, five days per week, earning between $6.00 and $7.00 per hour. In 1989, the employee was promoted to a head cook position, which involved menu preparation, food preparation, supervision of employees and general oversight of the preparation of foods to send out to the satellite schools in the district. (Ee. Ex. H.). By 1997, the employee worked 35 hours per week, earning $11.32 an hour, and receiving employee benefits, including paid holidays, sick leave, health and life insurance and retirement benefits. (T. 58.)
The employee sustained two work-related injuries while employed by the employer. On February 11, 1993, the employee sustained an admitted work-related injury to her left Achilles tendon. That injury has left her with physical work restrictions on her left foot, requiring that she avoid stair climbing and that she stand on her feet no more than ten minutes per hour. On February 24, 1997, the employee sustained admitted injuries to her right shoulder, in the nature of a rotator cuff tear, and her right elbow, in the nature of median neuropathy syndrome. The employee underwent surgery to her right shoulder in August 1997, and ultimately was released to return to work in February 1998. She continues to experience pain in her right arm. Her current restrictions relative to her right arm are avoiding repetitive flexion and extension of her right arm, elbow and shoulder, and avoiding lifting and carrying over ten pounds. The parties stipulate that the employee is physically able to work 40 hours per week, as long as she maintains those left foot and right upper extremity restrictions.
Since her injury in 1997, the employer has not offered the employee any work within her restrictions. (Finding No. 13.) In May 1997, the employer provided the employee with rehabilitation assistance, and assigned Carol Anderson, qualified rehabilitation consultant (QRC) to assist her. The QRC determined that the employee would be unable to return to her pre-injury work; by February 1998, the employer determined that it had no work available for the employee within her physical work restrictions. (T. 244.) Placement assistance was therefore commenced in February 1998. Ms. Anderson worked in conjunction with David Law, placement vendor, to assist the employee with searching for alternative employment. The employee met with Mr. Law on a weekly basis and targeted positions including desk clerk, parking lot attendant and cafeteria work.
The employee continued to work with Carol Anderson as QRC until June 1998. During that time, the employee received two job offers from Spirit Mountain Lodge. The first was part-time work as a night auditor, sixteen hours per week, paying $5.15 to $5.50 per hour. The employee testified that the employer agreed to the employee accepting this position only if she continued with a full-time job search. (T. 69.) During follow-up discussions between Spirit Mountain, the employee and the QRC, the employee was offered additional work hours, up to 32 hours per week, but, purportedly due to a delay in approval from the insurance administrator, the response to Spirit Mountain was not timely made and the position was filled by another applicant.
The employee continued working with Ms. Anderson and Mr. Law until June 1998. Even though she had worked with the placement vendor for only four months, the employee apparently refused to sign a rehabilitation plan amendment which extended job development and placement, due to her frustrations with the course of job placement activities, and opted to continue job search on her own. As a result, statutory vocational rehabilitation services were placed on hold, although Ms. Anderson continued to provide medical management services. Thereafter, the employee continued to search for jobs on her own in the Duluth, Superior, Cloquet and Moose Lake areas. In October 1998, the employee requested and was granted approval for a change in QRC to Nancy Hoss, a QRC intern. Ms. Hoss worked under the direct supervision of Jim Jackson, licensed QRC with Mesabi Rehabilitation Services, in a supervising arrangement allowed by Minn. R. 5220.1400, Subp. 3. In November 1998, Ms. Hoss submitted a rehabilitation plan that called for investigation of retraining in addition to continued job search. Pending approval of the revised rehabilitation plan, the employee continued to conduct a job search independently of Ms. Hoss. Although the revised plan was contested by the insurer, the revision was approved by the Department of Labor and Industry in January 1999. Ms. Hoss provided both rehabilitation services and job placement assistance, commencing in February 1999.
In April 1999, the employee received a job offer from North Shore Scenic Railroad, in the customer service area, which paid $6.00 per hour. The employee rejected that position as it involved being on her feet and required repetitive hand movements that she believed would not be within her physical work restrictions. (T. 75-76, 99, 150.) In May 1999, the employee received a job offer from the Radisson Hotel for housekeeping supervisor, paying $7.00 per hour. The employee rejected that position as it involved almost constant walking, cleaning rooms, changing bed linens and pushing or pulling linen carts, tasks which the employee believed would not be within her physical work restrictions. (T. 75-76, 99, 151.)
On May 17, 1999, the employee filed a Rehabilitation Request for approval of a retraining plan. The employee=s goal was to obtain a bachelor of science in social work, which required two years of course work at Fond du Lac Community College, Cloquet, Minnesota, and two years at the University of Wisconsin-Superior. A retraining proposal was developed by Ms. Hoss, and was supported by a labor market survey conducted in the Duluth, Superior and Cloquet areas, which demonstrated potential employment opportunities in both private and government positions with annual salaries ranging between $25,000 and $30,000. (T. 171-173.) Ms. Hoss provided the employee=s treating physicians, Drs. Holt and Deegan, with a written description of the physical requirements of a social worker position; they approved the position from a physical standpoint. The retraining plan was also supported by vocational test results from testing administered by Ms. Hoss.
The employee continued to conduct a job search, but received no job offers within her physical work restrictions until approximately July 1999. In July or August 1999, the employee received an offer for part-time work with the City of Duluth for approximately 10 to 12-1/2 hours per week, at an hourly wage rate of $7.00. She also received an offer for part-time work with the Center Against Sexual and Domestic Abuse (CASDA) in Superior, Wisconsin. The employee chose to accept the work at CASDA. In part due to funding cuts and a delay in CASDA=s program funding, the employee did not commence working until October 1999, approximately eight hours per week, earning $5.15 per hour. The employee also testified that her starting date at CASDA was delayed approximately one month while she was restricted from work due to a change in her prescribed medication.
An administrative conference was held on July 29, 1999, to address rehabilitation and medical issues. On August 24, 1999, a representative of the Commissioner of the Minnesota Department of Labor and Industry issued a Decision and Order pursuant to Minn. Stat. ' 176.106, approving the proposed retraining plan and agreement under Minn. Stat. ' 176.102. The representative concluded that the employee required retraining to restore her economic status to that which she held at the time of her injury. She considered the permanent nature of the employee=s two work-related injuries and the fact that the employee had not found replacement employment. The representative also relied upon the employee=s physical work restrictions and her intellectual capabilities, evidenced by testing results, and concluded that the employee was able to complete the course work and function as a social worker. The representative also concluded that the insurer=s reference to the employee=s age was not a persuasive challenge to the course of retraining or its duration.
According to an additional Decision and Order pursuant to Minn. Stat. ' 176.106, served and filed August 24, 1999, the Commissioner=s representative denied the employer=s request that the rehabilitation plan be amended to assign Nichols Placement Services as the employer=s choice of job placement vendor. She concluded that the employee Agave substantial effort with the assistance of the QRC and the insurer=s choice of job placement vendors to no avail@ and was therefore entitled to explore other options such as retraining. She also concluded that further job search would be fruitless and therefore denied the self-insured employer=s request to choose the placement vendor.
A third Decision and Order pursuant to Minn. Stat. ' 176.106 was served and filed August 24, 1999, in which the Commissioner=s representative ordered the self-insured employer to pay for claimed medical expenses related to prescription medication. She concluded that the employee=s work-related injury substantially contributed to the employee=s need for the disputed prescription treatment and that such treatment was reasonable and necessary. The self-insured employer requested a formal hearing or Commissioner review conference, to address these rehabilitation and medical issues.
On November 4, 1999, the employee underwent a vocational consultation with Richard Van Wagner, at the request of the self-insured employer. In his reports dated December 2 and 13, he identified positions which the employee has the capacity to perform, as long as those positions do not include keyboard work, constant standing or much lifting: receptionist, customer service representative or order taker, selected desk clerk positions, paraprofessional in a social service setting, or teacher=s aide. Mr. Van Wagner determined that the employee=s post-injury earning capacity ranges between $7.00 - $11.00 per hour, primarily in the $7.00 range. (Van Wagner Depo., p. 9-10.) He also determined that the employee could earn $8.50 to $14.00 per hour after completion of the proposed retraining plan, with a projected annual income in the Alow to mid-20's.@ (Van Wagner Depo., p. 15.)
Mr. Van Wagner asserted that the documentation supporting the Labor Market Survey is insufficient, in that it did not include adequate medical information as to the physical suitability of the retraining plan, and it did not include any on-site job analyses of the employee=s classroom setting and potential social worker positions. (Van Wagner Depo., p. 17-18, 20.) He also asserted that the employee=s inability to take class notes would be an obstacle to the employees=s synthesis and organization of the course work information. (Van Wagner Depo., p. 22.) Mr. Van Wagner also testified that the employee=s intellectual capacity might place her lower on a public employee evaluation system, the Minnesota Merit System listing, which could deny her access to the better-paying jobs in social work with St. Louis or Carlton County. (Van Wagner Depo., p. 42) However, he did admit that the employee has the aptitude to complete the proposed retraining program. (Van Wagner Depo., p. 71.)
Hearing was held on December 16, 1999. By Findings and Order, served and filed February 11, 2000, the compensation judge determined that the employee is physically precluded from returning to her date-of-injury employment as head cook. The compensation judge found that the employee had conducted a diligent job search, independently and also with the assistance of rehabilitation professionals, but had been unable to find Aanything approaching suitable gainful employment.@ The compensation judge determined that the proposed retraining plan was appropriate, reasonable and necessary, and ordered payment for proposed retraining costs, but denied the employee=s claim for the prescription medication. The employer appeals.
STANDARD OF REVIEW
On appeal, the Workers' Compensation Court of Appeals must determine 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 (1992). Substantial evidence supports the findings if, in the context of the entire record, "they are supported by evidence that a reasonable mind might accept as adequate." Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 59, 37 W.C.D. 235, 239 (Minn. 1984). Where evidence conflicts or more than one inference may reasonably be drawn from the evidence, the findings are to be affirmed. Id. at 60, 37 W.C.D. at 240. Similarly, findings of fact should not be disturbed, even though the reviewing court might disagree with them, "unless they are clearly erroneous in the sense that they are manifestly contrary to the weight of the evidence or not reasonably supported by the evidence as a whole.@ Northern States Power Co. v. Lyon Food Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975).
Eligibility for Retraining Benefits
The compensation judge approved the employee=s proposed four-year retraining plan for retraining as a social worker. The employer and insurer argue that the employee is capable of sustained gainful employment without retraining, that she did not cooperate with rehabilitation, and that she is not physically and mentally capable of handling the retraining plan. The employer and insurer also argue that the compensation judge committed a legal error in evaluating the employee=s claim for retraining and in approving the plan, as the proposal did not meet the requirements of Minn. R. 5220.0750, subp. 2.
Vocational rehabilitation, including up to 156 weeks of retraining; Minn. Stat. ' 176.102, subd. 11; "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 produces an economic status as close as possible to that the employee would have enjoyed without disability." Minn. Stat. ' 176.102, subd. 1(b). See also Jerde v. Adolfson & Peterson, 484 N.W.2d 793, 795 n.2, 46 W.C.D. 602, 622 n. 2 (Minn. 1992). As outlined in Minn. R. 5220.0750, subp. 1, A[t]he purpose of retraining is to return the employee to suitable gainful employment through a formal course of study. Retraining is to be given equal consideration with other rehabilitation services, and proposed for approval if other considered services are not likely to lead to suitable gainful employment.@
The Minnesota Supreme Court has held that, although retraining is necessary "if it will materially assist the employee in restoring an impaired earning capacity," an award of retraining benefits is not automatic but must be supported by competent evidence. Norby v. Arctic Enters., Inc., 305 Minn. 519, 522, 232 N.W.2d 773, 776, 28 W.C.D. 48, 50 (1975). Factors to be considered in making a determination as to whether retraining is appropriate include:
1. the reasonableness of retraining versus return to work through alternate rehabilitation methods;
2. the likelihood of success in the retraining program;
3. the likelihood that the retraining will result in employment; and
4. the likelihood that the job returned to will produce an economic status as close as possible to that which the employee would have enjoyed without the disability.
Poole v. Farmstead Foods, 42 W.C.D. 970 (W.C.C.A.1989); see Minn. Stat. ' 176.102, subd. 1; see also Stiffler v. Suburban Auto Body, slip op. (W.C.C.A. Nov. 15, 1994).
The Poole factors were addressed through vocational testimony, rehabilitation reports and medical records included in the hearing record. In regard to the first Poole factor, Ms. Hoss, working as the employee=s QRC intern, compared retraining to both outside job search and continued employment with the employer. The employer had no work available for the employee within her restrictions and had not offered the employee any position since her second injury. As outlined in the retraining plan, Ms. Hoss noted that since commencing her job search in February 1998, the employee has made more than 1,000 employer contacts, has participated in 23 interviews and has not secured employment within her restrictions. (Ee Ex. C.) Mr. Van Wagner reviewed the employee=s job logs and determined that the employee did not engage in a diligent job search, in that she did not follow-up on applications and she did not apply to larger employers in her geographical area. In his opinion, the employee=s job logs were Apadded,@ as they included numerous entries of merely reviewing newspaper advertisements. He found the job logs to include Aexcessive, redundant entries that mask a job search that is not reasonably diligent.@ (Er. Ex. 1.)
The determination of whether or not an employee=s job search is diligent is a question of fact for the compensation judge to resolve. Bauer v. Winco/Energex, 42 W.C.D. 762, 768 (W.C.C.A. 1989). The compensation judge determined that the employee had engaged in a diligent job search for employment within her restrictions, both independently and with the assistance of rehabilitation professionals, and that her diligent search resulted in no employment. (Findings No. 14 and 15.) That finding is adequately supported by the record, including the employee=s job logs and testimony presented by Ms. Hoss that the employee had conducted a thorough and diligent job search. (T. 140.)
Those jobs which had been offered to the employee in 1998 and 1999 were either outside the employee=s physical work restrictions or were limited to part-time work at an hourly wage well below her pre-injury hourly rate of $11.32 and her weekly wage of $396.20. Although the employee=s initial QRC, Carol Anderson, testified that the employee could expect to earn $6 to $7 per hour in today=s market, with her current skills, and absent any retraining (T. 257), that wage is still well under her pre-injury wage of $11.32 per hour. Even if the employee were to coordinate her current CASDA job, which pays approximately $41.00 per week, with the potential job at the City of Duluth, which paid a wage of $70 - $87.50 per week, the employee would still be working only part-time, earning a weekly wage less than her pre-injury wage. Mr. Van Wagner admitted that such a combination of jobs would not have restored the employee to her pre-injury earning capacity. (Depo. P. 76.) Ms. Hoss concluded that additional job search would not be successful in locating suitable gainful employment for the employee, in view of the employee=s physical work restrictions, her limited work history, and her lack of transferable skills. This first Poole factor was adequately addressed in the record.
To address the second Poole factor, Ms. Hoss also testified as to the probability of the employee=s success in the retraining program based in part on the vocational testing completed by the employee. The employee underwent a vocational evaluation at Arrowhead Economic Opportunity Agency in March 1998 and additional vocational testing in February 1999. The compensation judge found that the series of tests the employee underwent Arevealed that the employee is very interested in the social work profession, and that the tests also very clearly reveal the employee has the intellectual capacity to succeed in the retraining program.@ (Finding No. 20.) Ms. Hoss and Mr. Van Wagner agreed that the social services area is a Agood fit@ for the employee from the standpoint of her interests, and that the employee has the IQ and aptitude to complete the four-year college program. (Finding No. 20.) Although in its brief the employer cites testimony by Mr. Van Wagner that the employee will have Avery serious@ issues with her performance in an educational setting given her physical limitations and merely average intellect, the testimony must be reviewed in its proper context. Mr. Van Wagner testified that note-taking would be a Avery serious issue in the educational setting.@ (Er Ex. 11, p. 21.) He regarded the employee=s limitation on taking notes an Aobstacle to adequately organizing the information@ from her classes. (Er. Ex. 11, p. 22.) Mr. Van Wagner also testified that the employee has Aaverage intelligence and . . . the capacity on paper certainly to participate in a two to four-year program@ (Er Ex. 11, p. 23), but was concerned about the employee=s ability to overcome her note-taking and organizational obstacles.
The employer and insurer also argue that the employee=s physical work restrictions will restrict her from succeeding in the proposed retraining program, due to her limitations on driving and limitations relating to writing and typing. The employee testified that she continues to experience pain, fatigue, trouble gripping, and decreased strength in her right arm, and that she can write only about one-half page before her arm becomes tired and fatigued. (T. 61, 111.) However, according to information included in the retraining plan, tape recorders are available, on loan, from the Fond du Lac College to allow students to record lectures. Alternatively, the employee could purchase her own tape recorder. Based on discussions the employee and the QRC intern had with college personnel, both colleges will provide the employee with cost-free transcription of notes, papers and essay exams. In addition, the employee has available to her voice activated/generated computer software to assist with transcription of notes. The employee also testified that she would be able to tolerate the necessary driving, one and a half miles one-way to Fond du Lac Community College and 25 miles one-way to Superior, Wisconsin.
The compensation judge found that the employee has not only the intellectual capacity but also the physical capability to succeed in the retraining program. (Finding No. 21.) The compensation judge reasonably reached those conclusions, based upon the evidence of record and on testimony from both the employee=s QRC and the employer=s vocational expert, and satisfactorily addressed the second Poole factor.
The third Poole factor was addressed by the compensation judge as well. He found that the proposed retraining plan Ais appropriate, reasonable and necessary and is likely to result in the employee obtaining suitable, gainful employment which returns her to the economic status which she enjoyed prior to the work injury.@ (Finding No. 27.) The self-insured employer argues to the contrary. The employer asserts that if the employee stays in the Cloquet, Minnesota area, positions there for social workers are limited to two potential employers, St. Louis County and Carlton County. The employer points to Ms. Hoss=s testimony that St. Louis County currently has a freeze on hiring social workers and that Carlton County has only one open social worker position. (T. 172, 251.) The employer disputes Ms. Hoss=s testimony that the employee would be able to obtain a social work job, as there is only a predicted increase in social work positions over the next ten years. (T. 175-177.) By contrast, the labor market survey, conducted by placement specialist Jodi Hensley, demonstrates that private and public employers do have social work positions and that there is a demand in the employee=s labor market for social workers. Ms. Hoss testified that St. Louis County employs 170 social workers, and that one-half to two-thirds of those can be expected to retire within the next ten years, with hiring to begin as early as this year. (T. 172-173.) She cited to various projections in her labor market survey indicating that the area of social work is likely to continue expanding in the future. (T. 77.)
The employer and insurer also assert that the employee has, at most, only marginal physical capability of performing as a social worker in view of the employee=s limited abilities for driving and note-taking, two requirements of a social worker position. The employer argues that Ms. Hoss did not perform an on-site job analysis of a social worker job, did not follow up on whether those physical limitations could be accommodated by potential employers, and did not adequately seek the review of such positions with the employee=s treating physicians. They argue that the employee is only hypothesizing that she could use a tape recorder to take notes and that employers would be willing to accommodate her needs. The employer points to the employee=s rejection of the customer service job with North Shore Scenic Railroad because of the required handwriting.
The compensation judge addressed this specific concern and found that a preponderance of the evidence reveals that Aas with the technological aids available to the employee in effectively participating in the prerequisite classwork, such aids are also available >in the field.=@ (Finding No. 24.) In addition, the retraining plan was supported by the employee=s treating physicians, Drs. Holt and Deegan, as being physically appropriate. The compensation judge=s finding that the retraining program would result in reasonably attainable employment, both from a physical and economic standpoint, is supported by the record, and satisfies the third Poole factor.
As to the fourth Poole factor, the compensation judge found that the proposed retraining program will return the employee to the economic status which she enjoyed prior to the work injury. (Finding No. 27.) In his memorandum, the compensation judge cited the vast preponderance of the evidence which establishes that there is a need for individuals with degrees in social work and that this need will in fact be increasing. He stated that Anot only public but private entities are experiencing a demand for trained professionals in the social work area. As such upon completion of a retraining program the employee will in all probability attain employment in the social work area.@ The compensation judge also cited to the evidence which establishes that entry-level salaries for an individual with a bachelor=s degree in social work will equal that which the employee was earning on the date of her injury, and that by the very nature of the public and private entities employing social workers, there is a high likelihood that a benefits package would be available in addition to a reasonable salary. (Memo. p. 8.)
The employer asserts that the employee=s potential wage upon beginning an entry level social worker position would be $6.00 to $7.00 per hour, comparable to what the employee could earn in the current labor market without retraining. Ms. Hoss testified that based upon the labor market survey results, the employee would be able to secure entry level social work after retraining which would pay between approximately $25,000 to $30,000 per year. (T. 171.) Mr. Van Wagner confirmed this in his testimony, testifying that starting positions for social workers would pay $9.00 to $13.00 per hour or in the Alow to mid 20s@ with or without benefits, depending upon location. (T. 72-73.) AEconomic status is to be measured not only by opportunity for immediate income but also by opportunity for future income.@ Minn. Stat. ' 176.102, subd. 1(b). Based on the information obtained from the rehabilitation professionals, the compensation judge could reasonably conclude that the retraining program would produce an economic status as close as possible to that the employee would have enjoyed without her disability, a requirement articulated by the fourth Poole factor.
Based upon the rehabilitation reports in the record, the results from vocational testing completed on two occasions by the employee, and the testimony provided by both Ms. Hoss, the employee=s QRC intern, and by Mr. Van Wagner, the employer and insurer=s vocational expert, substantial evidence exists to support the compensation judge=s determination that the employee is eligible for the claimed retraining benefits. The propriety of a proposed retraining plan is a fact issue for the compensation judge. See Anderson v. Metropolitan Mechanical Contractors, slip op. (W.C.C.A. Oct. 19, 1999). It is clear that the judge considered the evidence in light of established case law factors, and he was entitled to accept the opinion of Ms. Hoss over the opinion of Mr. Van Wagner. See, e.g., Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985). In view of substantial evidence in the record to support the compensation judge=s decision, we affirm.
Employer=s Request for Assignment of Job Placement Vendor
The self-insured employer requested that a job placement vendor of its own choosing be assigned to work with the employee in a continued job search. The employer asserted that it is statutorily entitled to assign the vendor. In its request for formal hearing, the employer also asserted that the current job placement vendor routinely works with the employee=s attorney=s law firm and therefore has an established bias and could not work in an objective manner as required by the workers= compensation statute.
The compensation judge found that amending the present rehabilitation plan to provide additional assistance of a placement vendor is not appropriate. (Finding No. 26.) The compensation judge also found that:
Having undergone the QRC/vendor/extensive job searching rehabilitation mode not once but twice, having immersed herself in extensive job searching for a substantial period of time and having obtained no effective results, a third immersion in the QRC/placement vendor/job searching rehabilitation mode would be futile. Pursuing formal retraining at this time is not premature.
(Finding No. 25.)
The employer argued that the compensation judge failed to assign a job placement vendor as requested by the employer. Since we have affirmed the award of a retraining plan, no assignment of a placement vendor is needed at this point, and so we also affirm the compensation judge=s denial of the employer=s request that its choice of placement vendor be assigned.
 The employee cross-appealed the denial of payment for claimed prescription medication. By order served and filed by this court on June 15, 2000, that cross-appeal was denied as being untimely filed under Minn. Stat. ' 176.421, subd. 3a, so we do not address that issue herein.