DENNIS B. CASE, Employee/Appellant, vs. KNUTSON CONSTR. and ZURICH/RISK ENTERPRISE MGMT., Employer-Insurer.
WORKERS= COMPENSATION COURT OF APPEALS
JANUARY 14, 2002
IMPAIRMENT COMPENSATION - SUITABLE JOB. Where the compensation judge considered all of the relevant factors, including wage disparity, substantial evidence supports the compensation judge=s finding that the employee=s post-injury employment after retraining was suitable under Minn. Stat. ' 176.101, subd. 3e (repealed 1995).
Determined by: Rykken, J., Wilson, J., and Pederson, J.
Compensation Judge: William R. Johnson
MIRIAM P. RYKKEN, Judge
The employee appeals the compensation judge=s finding that the employee=s job as a mechanical drafter was a suitable job under Minn. Stat. ' 176.101, subd. 3e(b) (repealed 1995), and therefore that the employee was entitled to permanent partial disability benefits paid as impairment compensation rather than economic recovery compensation. We affirm.
On December 12, 1991, Dennis B. Case, the employee, sustained a low back injury while working as an ironworker for Knutson Construction, the employer, which was insured for workers= compensation liability by Zurich/Home Insurance Company, the insurer. At that time, the employee had been employed as an ironworker for twenty-five years, and was employed as a working foreman for twenty of those years. The employee=s weekly wage at the time of injury was $880.00.
Following his injury, the employee remained off work for approximately two months. He was diagnosed with herniated discs at the L4-5 and L5-S1 levels, and received conservative medical treatment, including physical therapy and work-hardening. The employee then returned to work for the employer and worked as an ironworker until he was laid off approximately 14 months later. He obtained other work as an ironworker, but by October 1993 he experienced a flare-up of his symptoms. By March 1994, he underwent a double level lumbar laminectomy. In April 1995, the employee returned to work as a surveyor helper, working within physical work restrictions.
The employer originally provided rehabilitation assistance in 1992, and again between April 1995 and June 1996. By 1996, the employee=s QRC, Marsha Ellingson, investigated retraining as a viable option for the employee. Retraining was approved by the employer and insurer; the employee attended a course in drafting and design at Northwest Technical Institute between July 1997 and October 1998. The employee graduated with honors in October 1998, and began working for Lewis Engineering as a mechanical drafter in November 1998, earning a starting salary of $12.50 per hour plus benefits. At the time of the hearing, the employee was fifty years old and continued to work full-time for Lewis Engineering, earning $14.25 per hour, or $570.00 per week.
On March 6, 2000, the employee filed a claim petition for 16 percent permanent partial disability payable as economic recovery compensation, less impairment compensation previously paid. A hearing was held on March 16, 2001. The employee alleged that he was entitled to permanent partial disability benefits, and that, pursuant to Minn. Stat. ' 176.101, subd. 3e(b) (repealed 1995), those benefits were payable as economic recovery compensation rather than impairment compensation. The employee testified that he accepted the position at Lewis Engineering since it was a full time permanent job which offered job security. He also testified that he liked his work and liked the people working for this employer. He also testified that since he had worked on bridges as an ironworker, his current employer=s bridge design work allowed him to use transferable skills and knowledge. (T. 21-22.)
The employee=s QRC testified that, based on a labor market survey she conducted for this type of position, Lewis Engineering paid less than average, but that some of the other employers were contract houses which did not offer permanent jobs. QRC Ellingson also compared the employee=s current wages, benefits, and earnings potential as a mechanical drafter with his wages, benefits, and earnings potential as an ironworker. (Ee=s Ex. E.) The QRC testified that in 1999, the year for which latest salary statistics were available, an ironworker foreman would earn $28.00 to $30.00 per hour, plus a benefit package of about $11.74 per hour. In 1999, the employee was earning $12.50 per hour with a benefit package of $2.88 per hour as a drafter. The QRC also projected the employee=s estimated earnings over his work life as an ironworker, and contrasted those with his projected earnings as a drafter, concluding that as a drafter he would earn approximately 37 percent less during his career. The QRC testified that the employee=s current job as a drafter was not within economic parity of his pre-injury job as an ironworker.
On cross-examination, the QRC testified that in the rehabilitation plan proposed in 1996, she recommended the drafter retraining program as Aappropriate and a more certain avenue in terms of a vocational plan on this case to return this client as close as possible to the economic status he enjoyed pre-injury, and also to be the most long-term cost-effective approach within a reasonable and probable degree of vocational certainty.@ (T. 55; Er. Ex. 6.)
Ms. Lynn Hjelmeland, QRC, also testified at hearing. At the request of the employer and insurer, she conducted an independent vocational evaluation of the employee in March 1996, and concluded that the employee could benefit from some short-term retraining. In July 2000, Ms. Hjelmeland reviewed the employee=s file again, conducted a labor market survey for the drafting field, and concluded that the employee was working at suitable employment. She testified that the employee has obtained an economic status as close as possible to that he could obtain without the disability. (T. 95-96.)
In Findings and Order served and filed April 25, 2001, the compensation judge found that the employee had obtained a suitable job and therefore was entitled to impairment compensation. The employee 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. 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).
Pursuant to the statute in effect at the time of the employee=s injury, Minn. Stat. ' 176.101, subd. 3e(b) (repealed 1995), permanent partial disability benefits are payable as impairment compensation if, at any time prior to the end of the 90-day period following MMI, the employer furnishes work to the employee or the employee is offered or accepts work from another source that the employee can do in his physical condition and that job Aproduces an economic status as close as possible to that the employee would have enjoyed without the disability.@ Minn. Stat. ' 176.101, subd. 3e(b) (repealed 1995). If the job the employee returns to does not meet the criteria of a subdivision 3e Asuitable job,@ the permanent partial disability benefits are payable as economic recovery compensation. Minn. Stat. ' 176.101, subd. 3p (repealed 1995).
Economic suitability is a question of fact. See e.g., Schneider v. Arrow Tank & Eng'g, 509 N.W.2d 359, 360, 49 W.C.D. 435, 437 (Minn. 1993) ("[w]hether post-injury employment meets the criteria of Minn. Stat. ' 176.101, subd. 3e(b) is for the compensation judge to resolve as factfinder"). Relevant factors in evaluating economic suitability include the disparity between pre- and post-injury wages, the employee's age, general work history, education, interests, aptitudes, and skills, and whether the employee has participated in retraining. See, e.g., Rogholt v. Knight Elec., 511 N.W.2d 442, 50 W.C.D. 66 (Minn. 1994); Jerde v. Adolfson and Peterson, 484 N.W.2d 793, 46 W.C.D. 620 (Minn. 1992). See Minn. R. 5220.0100, subp. 34. In determining the suitability of post-injury employment, Aa disparity between pre- and post-injury wages is not the sole criterion for determining whether the employee=s post-injury employment meets the requirements of a >3e= job. Rogholt, 511 N.W.2d at 443, 50 W.C.D. at 67. AWhether there is reasonable parity between pre-injury and post-injury wages is, however, a factor of more than a passing significance, and its relative significance in any given factual setting is for the trier of fact.@ Id. (citation omitted). A[T]he greater the wage disparity the more closely rehabilitation efforts should be scrutinized in evaluating whether or not a job is suitable under the statute.@ Schmitz v. Transport Leasing, 48 W.C.D. 454, 460-61 (W.C.C.A. 1992), summarily aff=d, (Minn. May 26, 1993).
In this case, the employee contends Athe job is not suitable because it is not anywhere close to economic parity with his former job.@ (Ee. Brief, p. 1) The employee argues that the compensation judge interpreted the statute contrary to the cases cited above, arguing that for post-injury employment to be considered economically suitable, it must place the employee in an economic situation Aas close as possible to that the employee would have enjoyed without the disability.@ The employee contends that the compensation judge applied the statute incorrectly and found that the employee=s job as a drafter was suitable given his work-related disability. We are not persuaded.
In this case, the employer provided rehabilitation assistance and retraining to the employee. The QRC testified that the employee had returned to work at a Asuitable job@ following a successful retraining program. The employee=s QRC assisted the employee with his job search post-retraining; he started his new position as a drafter within a few days of completing his retraining. The QRC completed a rehabilitation closure report at the time the employee was re-employed, characterizing his post-retraining position as Asuitable gainful employment@ which she defined as meaning Agenerally the best the person can get@ based on his skills. (Er. Ex. 5) She also testified that at the time of the employee=s hire, she realized that there would be a wage disparity between the employee=s pre-injury wages as an ironworker and the employee=s current position but that this position was Athe best we could do.@ (T. 58-60).
The compensation judge clearly considered the relevant factors in determining the economic suitability of the employee=s drafter position. The compensation judge specifically acknowledged the significant wage disparity between the employee=s ironworker job and the drafter position in finding that the drafter position produced an economic status Aas close as possible to that the employee would have enjoyed without the disability.@ The compensation judge also considered other relevant factors, including the employee=s age, education, interests, aptitudes, skills and employment history, and found that:
The employee had some academic detriments that he has admirably overcome. However, these did at the time, probably along with his age, place sort of an upper limit on his educational possibilities. This in turn placed limit[s] on his future job opportunities. At the time of the injury he was 41 years old. His job history was 25 plus years as an ironworker. The mechanical draftsman job allowed him to use his 25 plus years of experience as an ironworker to his benefit.
Given the overall evidence, including the employee=s rehabilitation assistance and retraining, and the compensation judge=s thorough consideration of all of the factors affecting the employee=s post-injury job, we conclude that his conclusion, that the employee=s post-injury job produced an economic status as close as possible to that the employee would have enjoyed without his disability, is supported by substantial evidence in the record and is not clearly erroneous. Jerde, 484 N.W.2d 793, 46 W.C.D. 620; Hengemuhle, 358 N.W.2d 54, 37 W.C.D. 235. We therefore affirm the compensation judge=s award of impairment compensation.
 The employee had claimed economic recovery compensation earlier, but in previous litigation, this claim was denied as premature until rehabilitation and retraining were fully explored. The employee appealed, and the Workers= Compensation Court of Appeals and Minnesota Supreme Court affirmed. Case v. Knutson Constr., 56 W.C.D. 230 (W.C.C.A. 1996), summarily aff=d, (Minn. Feb. 27, 1997).
 Minn. Stat. ' 176.101, subd. 3e(b) (repealed 1995) provides, in relevant part, as follows:
If at any time prior to the end of the 90-day period . . . the employer furnishes work to the employee that is consistent with an approved plan of rehabilitation and meets the requirements of section 176.102, subdivision 1, or, if no plan has been approved, that the employee can do in the employee's physical condition and that job produces an economic status as close as possible to that the employee would have enjoyed without the disability, or the employer procures this employment with another employer or the employee accepts this job with another employer, temporary total compensation shall cease and the employee shall, if appropriate, receive impairment compensation pursuant to subdivision 3b. This impairment compensation is in lieu of economic recovery compensation under subdivision 3a . . . .
 The employee also objects to the employer and insurer=s reply brief, arguing that as respondents they are entitled only to submit a responsive brief. Minn. R. 9800.0900, Subp. 3, requires that all respondents= briefs must be filed with the court within 25 days after the appellant=s or cross-appellant=s brief is filed, and that the respondent=s brief may address only issues raised in the brief of the appellant or cross appellant. Minn. R. 9800.0900, Subp. 5, states that reply briefs must be filed within ten days afer the respondent=s brief is filed, and may address only issues addressed in the respondent=s brief. There is no provision in the rules governing workers= compensation practice and procedure for a respondent to file both a responsive brief and a reply brief. Therefore, the court has not considered the respondents= reply brief on appeal.