RYAN JOHNSON, Employee, v. ARCTIC CAT, INC., SELF-INSURED/BERKLEY RISK ADM'RS CO., Employer-Insurer/Appellants.
WORKERS= COMPENSATION COURT OF APPEALS
JANUARY 16, 2004
EARNING CAPACITY; REHABILITATION - RETRAINING. Substantial evidence supports the determination of the compensation judge that the employee sustained an impairment of earning capacity by reason of his work injury and was entitled to have his rehabilitation plan amended to allow exploration of retraining.
Determined by Stofferahn, J., Johnson, C.J., and Pederson, J.
Compensation Judge: Kathleen Behounek
Attorneys: Richard L. Plagens, Lommen, Nelson, Cole & Stageberg, Minneapolis, MN, for the Appellants. Steven Christensen, Attorney at Law, Roseville, MN, for the Respondent.
DAVID A. STOFFERAHN, Judge
The self-insured employer appeals from the decision of the compensation judge ordering an amendment of the employee=s rehabilitation plan to include exploration of retraining. We affirm.
Ryan Johnson, the employee, began working for Arctic Cat, the employer, in June 1993. Initially, the employee worked in the welding department but in December 1993 the employee became a field test driver for the employer. A field test driver was responsible for durability testing of snowmobiles and personal water craft manufactured by the employer.
The employee was injured on July 21, 1994 when another personal water craft collided with the one the employee was driving. The employee sustained injuries to his back, ribs, liver, spleen, and later developed incisional hernias at operative sites. As the result of his injuries, the employee is restricted in his work activity and the parties agree that the employee is not able to return to work as a field test driver.
The parties stipulated that the employee=s weekly wage on the date of injury was $670.20 or just under $35,000.00 per year. A significant part of the income was generated by the overtime available to a field test driver. The employee estimated that between 800 and 900 hours of overtime were worked as a field test driver in a year. In addition, the employee received a bonus, based in part on the number of hours worked in a year.
Immediately after his injury, the employee was off work for about three months before returning to the employer on a light-duty basis and then going back to work as a field test driver in December 1994. He worked in that capacity until June 1998 when he had hernia surgery and his doctors placed restrictions which precluded the field test driver position. Since that time the employee has continued to work at Arctic Cat in a number of positions. The employee worked for about two years as a junior lab technician but the job was not completely within his restrictions and his assignment ended when another employee was selected for the job on a permanent basis in June 2000. The employee then worked as a vehicle supervisor from July 2000 until September 2002. There was some question as to whether this position was physically appropriate and another individual was hired for the job on a permanent basis and replaced the employee. The employee worked on the assembly line doing inspections for one week before his QRC reviewed the job and determined it was physically inappropriate.
The employee then went to work in the machine shop at Arctic Cat as a machine operator. He continued in this position to the date of hearing. In this position he runs a coping machine which modifies piping and tubing to fit other parts. The employee is concerned about the repetitive lifting, twisting and bending associated with the position, but, as of the date of hearing, no doctor had indicated it was beyond his restrictions. As a machine operator the employee earns $13.64 an hour or approximately $545.00 per week or $28,400.00 per year. The hourly rate is $0.60 an hour less than that of field test drivers at the present time and there is no overtime. The employee continues to receive the same benefits as a field test driver.
The employee received a rehabilitation consultation from QRC James Jackson in May 1999. A rehabilitation plan or R-2 was then prepared and filed in June 1999 with the goal of the employee continuing to work with Arctic Cat. Rehabilitation services were closed in July 2000 after the employee accepted the vehicle supervisor position. Services were reopened in February 2002 but a dispute arose over the R-2 prepared by the QRC which identified the goal of continued employment with Arctic Cat but called for other services aimed at possible job search or retraining. The employer objected to these services.
On January 3, 2003, the QRC filed a rehabilitation request with the Department of Labor and Industry seeking an investigation into retraining. An administrative conference on the issue was held on February 4, 2003 and a request for formal hearing followed the decision from the conference. The hearing was held on April 29, 2003 before Compensation Judge Kathleen Behounek. In Findings and Order, filed June 3, 2003, the compensation judge found that the employee=s earning capacity had been impaired by his July 21, 1994 work injury and ordered the rehabilitation plan to be amended to include exploration of retraining. The employer appeals.
The goal of rehabilitation services is to return the employee to employment 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). To achieve that goal, retraining, defined in the statute as a formal course of study in a school setting, is to be given equal consideration with other rehabilitation services. Minn. R. 5220.0750, subp. 1. In considering whether retraining is appropriate, this court applies the factors identified in Poole v. Farmstead Foods, 42 W.C.D. 970 (W.C.C.A. 1989). In the present case, however, the issue is not whether a retraining program for the employee is to be approved but, rather, whether retraining should be explored or investigated as a rehabilitation option. A different standard applies in such a case.
In considering that standard, the court in Siltman v. Partridge River, Inc., 523 N.W.2d 491, 52 W.C.D. 282, 293 (Minn. 1994) stated:
AIn this case, there was a substantial evidentiary basis for the determination that Siltman has an impaired earning capacity and is therefore entitled to evaluation for purposes of developing a retraining plan.@
The question for our review is whether substantial evidence supports the determination of the compensation judge that the employee had an impairment in earning capacity as the result of his work injury.
The employer argues on appeal that there was no evidence that the employee had a loss of earning capacity as the result of his work injury. The argument advanced by the employer is that the employee was an hourly production worker at the time of his injury and was one of a few employees who were able to supplement hourly earnings with the overtime earned as a field test driver. The result, according to the employer, is that the weekly wage of the employee on the date of injury is not a measure of his earning capacity. As authority, the employer cites the decision of Bradley v. Vic=s Welding, 405 N.W.2d 243, 39 W.C.D. 921 (Minn. 1987). We do not find Bradley to be relevant to the pending case. In Bradley, the court found that the weekly wage of the employee should not include overtime which was not regular or frequent throughout the year. In the present case, the employee worked between 800 and 900 hours of overtime in a year as a field test driver. While the employee may have been one of a few employees to be a field test driver, the fact remains that he was in that position when injured and his actual earnings in that position resulted in a stipulated weekly wage of $671.20. An argument that the earning capacity of the employee was not reflected by the employee=s weekly wage was rejected in Jellum v. McGough Construction Co., Inc., 479 N.W.2d 718, 46 W.C.D. 182 (Minn. 1992). We find no authority which would allow a compensation judge to ignore the employee=s weekly wage in considering whether there has been a loss of earning capacity.
In considering whether there has been an impairment of earning capacity, the question is not whether the wage on the date of injury equals the employee=s earning capacity but whether the employee after the injury has the ability to match the earnings reflected in the weekly wage. In the present case, the employee=s wage as of the date of hearing, almost nine years after the injury, is still significantly less than his weekly wage on the date of injury. The employer presented no evidence to rebut the presumption that the post-injury earnings of the employee are not reflective of his post-injury earning capacity. Lehman v. Dakota Growers Pasta Co., slip op. (W.C.C.A. Sept. 30, 2003).
The employer also argues that the compensation judge improperly found an impairment in earning capacity based on what the employee would have continued to earn as a field test driver had he not been injured. While benefits may not be awarded based on potential earnings, it was not error for the compensation judge to note the difference between the current earnings of the employee as a machine operator and the current earnings of a field test driver in considering the issues in this matter. 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).
The employer also appeals from the finding by the compensation judge that the hourly rate for the employee as a field test driver was $14.28 at the time of his injury. From a review of the evidence, it is apparent the compensation judge confused the hourly rate in 1994 with the hourly rate for drivers in 2003. However, this finding does not appear to be a significant factor in the compensation judge=s conclusion and in view of the parties= stipulation as to the weekly wage on the date of injury, this is a harmless error which does not require action by this court.
Much of the objection raised by the employer is centered on its contention that retraining should not be considered because in returning to work with the employer, the employee has already been returned as closely as possible to his pre-injury economic status when the wages and benefits at the employer are considered. We find that argument to be premature. Determination of whether retraining is appropriate to effectuate the goal of rehabilitation and whether a particular retraining program should be approved is to be made when and if the QRC proposes such a plan.
Finding substantial evidence to support the conclusion by the compensation judge that the employee has sustained an impairment in earning capacity due to his injury, the decision of the compensation judge is affirmed.