KAREN DROUILLARD, Employee, v. ST. MARY=S MED. CTR./DULUTH CLINIC, SELF-INSURED, adm=d by GALLAGHER BASSETT, Employer/Appellant.
WORKERS= COMPENSATION COURT OF APPEALS
SEPTEMBER 4, 2003
REHABILITATION - RETRAINING. The compensation judge properly applied the areas of concern set forth in Poole v. Farmstead Foods, Inc., 42 W.C.D. 970 (W.C.C.A. 1989), in evaluating the proposed retraining to obtain a Bachelor of Nursing degree, and substantial evidence supports the compensation judge=s findings and award of retraining benefits as outlined in the plan.
Determined by Johnson, C.J., Wilson, J. and Stofferahn, J.
Compensation Judge: Gregory A. Bonovetz
THOMAS L. JOHNSON, Judge
The self-insured employer appeals from the compensation judge=s Findings and Order approving the employee=s proposed retraining plan leading to a four-year Bachelor of Nursing degree. We affirm.
The underlying facts in this case are largely undisputed. Karen Drouillard, the employee, was 43 years old as of the date of hearing. She graduated from high school in 1977 and then worked briefly as a waitress, short order cook, grain inspector and housekeeper. In the late 1970s, the employee completed an eight-week program at Wisconsin Indianhead Technical School leading to certification as a Certified Nursing Assistant (CNA). The employee has held employment exclusively in the nursing/medical field since that time.
In 1987-88, the employee returned to school, earning a degree as a Licensed Practical Nurse (LPN) through the Duluth Vocational-Technical Institute. The employee obtained employment as an LPN at Park Point Manor nursing home in Duluth and then at the Cloquet Memorial Hospital nursing home. In both instances, she worked the night shift and was in charge of one floor, supervising three or four nurse=s aides, as well as providing direct patient care.
In January 1990, the employee began working as a staff LPN in the oncology unit for St. Mary=s Medical Center/Duluth Clinic, the self-insured employer. As part of this job, she supervised nursing assistants and was paired with nursing students demonstrating and providing instruction in patient care. In about June 1990, the employee sustained a personal injury to her low back. She eventually underwent two surgeries, including a decompression from L3 to L5 and a bilateral fusion from L4 to the sacrum with internal fixation rods on November 30, 1993.
The employee continued to work as an LPN following the injury, but was taken off work sometime in 1992 and remained off work following the surgeries. While off work, the employee, on her own, enrolled in school and obtained a two-year associate degree as a Registered Nurse (RN) through Duluth Community College. The employee returned to work for the employer in 1994, in the mail room, as part of a Awork hardening@ process. In 1996, she transferred to the medical-surgical float pool at St. Mary=s Medical Center, first as an LPN and then as an RN. The employee was assigned to different floors and units as needed, working with and supervising nursing assistants and student nurses, and later LPNs, in addition to direct patient care. The employee returned to the oncology unit in 1998 as a staff RN.
On June 14, 2000, the employee reinjured her low back while assisting a patient. At that time, the employee was earning an hourly wage of $19.96 and working an average of 32 hours a week. The employee, as a member of the nurses= union, also had a benefits package including dental and medical insurance, overtime pay, sick and vacation leave and a savings plan. On January 25, 2001, the employee underwent surgery to remove the rods from the previous surgery. The surgery helped somewhat but did not entirely eliminate the employee=s pain and symptoms.
Following the surgery, the employee was unable to return to direct patient care in the oncology unit. With the assistance of St. Mary=s Medical Center personnel, the employee looked for other work within the St. Mary=s/Duluth Clinic system. In October 2001, the employee was offered a position as a medical-surgical RN at St. Mary=s Medical Center in Superior, Wisconsin. The employee obtained her Wisconsin license and began working as a staff nurse in January 2002. The work aggravated her back condition, and on January 24, 2002, the treating physician assigned new permanent restrictions, including no lifting over 10 pounds, change of position as necessary, bending only rarely, occasional squatting, no climbing, and no rotating (night) shifts. The employee was unable to continue working as a staff nurse within these restrictions. She initiated a new job search, with the assistance of a qualified rehabilitation counselor (QRC). The employee again sought work within the employer=s hospital and clinic system and the job search was expanded to include medical-related jobs with a broad range of employers in the Duluth-Superior area. There is no dispute the employee conducted a diligent and persistent search for positions within the medical community but received no offers of employment.
On April 5, 2002, the employee=s QRC, Nadine Hoven, filed a Rehabilitation Plan Amendment (R-3), including a Labor Market Survey and investigation of retraining. The employer objected to the R-3, and the employee then sought approval of the retraining plan as submitted. The retraining plan proposed completion of a Bachelor of Nursing (BA) degree through the College of St. Scholastica. It was anticipated the training would take approximately 80 weeks at a cost of $30,415.00. The employee has been accepted into the program. Following an administrative conference on July 26, 2002, although the retraining plan was approved, the employee expanded her job search to include jobs outside the health care field.
The employer and insurer appealed the administrative decision and order, and the matter was heard by a compensation judge at the Office of Administrative Hearings on November 22, 2002. In a Findings and Order, served and filed February 20, 2003, the compensation judge found the proposed retraining plan would materially assist the employee in restoring her impaired earning capacity, and ordered the employer to provide the retraining benefits as outlined in the plan. The self-insured employer appeals.
The self-insured employer asserts the compensation judge failed to properly apply the standards enunciated in Poole v. Farmstead Foods, Inc., 42 W.C.D. 970 (W.C.C.A. 1989), in evaluating the proposed retraining, and that the retraining plan proposed by the employee does not satisfy the Poole criteria. We disagree.
The purpose of retraining is to return the injured employee to suitable gainful employment through a formal course of study in a school setting. Minn. Stat. ' 176.011, subd. 23. Suitable gainful employment is employment which is reasonably attainable and which produces an economic status as close as possible to that which the employee would have enjoyed without disability. Minn. Stat. ' 176.102, subd. 1(b); Minn. R. 5220.0100, subp. 34 (2000). Areas of concern in evaluating proposed retraining thus include: (1) the likelihood the employee has the interest and ability to succeed in the proposed course of study; (2) the reasonableness of retraining as compared to returning to work with the employer or other job placement activities; (3) whether retraining is likely to result in reasonably attainable employment; and (4) whether retraining is likely to produce an economic status as close as possible to that which the employee enjoyed without the disability. Poole, 42 W.C.D. at 978. Whether retraining is appropriate is a question of fact for the compensation judge. Norby v. Arctic Enters., 305 Minn. 5l9, 232 N.W.2d 773, 775, 28 W.C.D. 48 (1975).
1. Ability to succeed in the proposed course of study. The employee has demonstrated on three previous occasions her interest in and ability to complete formal schooling in the nursing field. Most recently, the employee successfully completed college-level course work, obtaining an associate degree as an RN from Duluth Community College. The employee has shown persistence and has appropriately obtained assistance when needed for her learning disability. Testing conducted by the employer=s vocational expert, Mr. VanWagner, indicated the employee is capable of reading and understanding post-secondary level textbooks, materials and manuals and has a strong interest in medical related fields. (Er Ex. 2.) While considering the employee=s prior grade point average Aborderline@ as an indicator of success, he conceded he could not rule out successful completion of the four-year degree program. (T. 156-57).
2. Reasonableness of retraining as compared with further job search. The employer argues, relying on the report and testimony of its vocational expert, that job placement services provided by the employee=s former QRC, Nadine Hoven, were inadequate, and that retraining is inappropriate and premature in the absence of more effective placement services and an expanded job search outside the health care field. In Mr. VanWagner=s opinion, typically retraining should not be considered until all opportunities to return the employee to work through a job search have been exhausted. (T. 143.) Retraining, however, Ais 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.@ Minn. R. 5220.0751, subp. 1 (2000). Further, while the reasonableness of retraining as compared to a return to work with the employer or other job placement is an area of concern, Ait is not necessarily dispositive,@ and an injured worker is not necessarily required to affirmatively exhaust all other possibilities before turning to retraining. Wilson v. Crown Cork & Seal, 503 N.W.2d 472, 49 W.C.D. 51 (Minn. 1973). Rather, the question is whether retraining is necessary, which does not mean Aindispensable@ but Ashould be found necessary if it appears that the retraining will materially assist the employee in restoring [her] impaired capacity to earn a livelihood.@ Norby at 775, 28 W.C.D. at 50.
In this case, Mr. VanWagner agreed the employee did her best to find employment with the employer and performed a diligent and exhaustive job search for medical-related work in the Duluth-Superior area. (T. 146, 190, 201.) The employee=s QRC as of the date of hearing, John Witzke, observed the employee had approximately 20 years of experience in the health care field, thus her job search drew upon her experience, training and transferable skills in this area. He further testified that, in his opinion, the employee was not likely to replace her pre-injury earnings and benefits by job search alone, especially outside the medical profession. AIf there were jobs out there unrelated to her experience and skills, they would be entry level positions and she=s not likely to come close@ to her pre-injury wage. (T. 121.) Mr. Witzke further testified he believed the employee had done a very thorough and diligent job search, and that it was unlikely that anything would be accomplished with continued job search. (T. 138.) The compensation judge accepted the testimony of Mr. Witzke, finding that despite a very extensive job search in the medical community the employee had been unsuccessful in finding employment, and concluding that without retraining the employee was unlikely to obtain suitable gainful employment. (Findings 23, 24,25, 30.) There is substantial evidence in the record as a whole to support this conclusion.
3. Likelihood retraining will result in reasonably attainable employment. The employer contends the compensation judge failed to consider this factor, applying instead a standard of whether the employee will have improved employment options with a four-year degree. The employer additionally argues the employee lacks the managerial and supervisory experience necessary to obtain nurse manager positions identified in the labor market survey. We are not persuaded.
The employer=s vocational expert, Mr. VanWagner, testified the labor market survey does not demonstrate the employee would get hired upon completion of a four-year Bachelor of Nursing degree. In his opinion, the jobs identified would instead go to applicants with substantial management and supervisory experience, and the employee has no such experience. Mr. VanWagner agreed, however, the labor market survey and other vocational evidence indicated there were job openings for RNs with a four-year degree with various medical employers in the Duluth area. He acknowledged he had not done a labor market survey of his own, and had not contacted any of the employers included in Ms. Hoven=s survey, and conceded that he did not know what these particular employers meant by Asupervisory@ experience. (T. 188, 196-97.)
Both the employee and her QRC, Mr. Witzke, conducted further investigation of opportunities for RNs with a BA degree. Their results were consistent with the information obtained by Ms. Hoven in the labor market survey. That is, that the employee will be able to apply for a number of jobs now unavailable to her because of her lack of a four-year degree; that such jobs are reasonably available; and that these jobs are typically less physical, require less lifting, and are more likely to accommodate the employee=s physical limitations. Personnel at the College of St. Scholastica indicated they have an extremely high rate of placement and that opportunities are likely to continue into the future for nurses with a Bachelor of Nursing degree. There can be no requirement that employment be guaranteed upon completion of retraining, and the evidence in this case is sufficient to support the conclusion that employment is likely reasonably attainable upon obtaining a BA degree.
4. Produce an economic status as close as possible to that enjoyed without disability. The employer argues there is no reason to believe the employee will be hired as a nurse manager upon completion of a BA degree, thus retraining will do little to improve her economic circumstances. The labor market survey indicates that nursing-related jobs requiring a four-year degree generally pay a wage and have benefits similar to that which the employee enjoyed prior to her injury. Thus, the compensation judge could conclude that retraining is more likely to result in employment producing an economic status Aas close as possible@ to the employee=s pre-injury earnings than the employee=s present circumstances.
Taken as a whole, we conclude the compensation judge properly applied the Poole factors, and that substantial evidence supports the compensation judge=s findings and his award of retraining benefits as outlined in the proposed retaining plan. We, accordingly, affirm.