JAMES SCHMIDT, Employee/Appellant, v. ARROWHEAD ELECTRIC, and MN RURAL ELECTRIC TRUST/COMPCOST, Employer-Insurer.
WORKERS= COMPENSATION COURT OF APPEALS
MARCH 12, 2004
REHABILITATION - RETRAINING; JOB SEARCH. An employee is not required to conduct a job search outside his or her community as a prerequisite for retraining.
Determined by: Stofferahn, J., Rykken, J., and William R. Pederson, J.
Compensation Judge: Bradley J. Behr
Attorneys: Patrick M. Spott and Jeremy M. Hurd, Orman, Nord & Spott, Duluth, MN, for the Appellant. George W. Kuehner, Jardine, Logan & O=Brien, Lake Elmo, MN, for the Respondents.
DAVID A. STOFFERAHN, Judge
The employee appeals from the determination of the compensation judge that his proposed retraining plan is premature until he expands his job search to the geographic area where the retraining program would take place. We reverse.
James Schmidt, the employee, was born on December 17, 1951. He graduated from Cook County High School in Grand Marais, Minnesota in 1969. Beginning in the fall of 1969, Mr. Schmidt spent two academic years at Vermillion Community College in Ely, Minnesota earning a cumulative GPA of 1.82. The employee then transferred to Mayville State College in Mayville, North Dakota in the winter of 1971 and spent a year there with grades generally in the C and D range. The employee testified at the hearing that he went to college primarily to play football and did not pay much attention to his grades.
After leaving school, the employee obtained a job with Erie Mining Company in Taconite Harbor, Minnesota as a heavy equipment operator. The employee=s job ended when Erie Mining closed in 1982 and the employee then participated in a displaced worker program, going through a retraining program at Dakota County AVTI in Rosemount, Minnesota. The employee was retrained in the electrical line worker program and obtained grades that were either A or A+. The employee explained his improvement in school by noting that he was more mature than he had been at age 20 and that he had family obligations which helped him concentrate on studies.
The employee obtained employment with Arrowhead Electric in Grand Marais in 1985 as a lineman. Working as a lineman, the employee sustained the first of his three work-related injuries to his low back on March 19, 1997, while attempting to move a snowmobile that was stuck in the snow. The employee missed some time from work and shortly after his return to work transferred to a job as a service technician for the employer. His duties consisted of installing and testing meters, doing troubleshooting for customers and assisting in lineman work when extra help was needed. The employee sustained another work injury to his low back on October 3, 2000, when he was involved in a motor vehicle accident. As a result of that accident the employee was no longer able to work as a lineman and perform the duties of climbing poles and lifting associated with the position. In April 2001 he was moved to a warehouse job with the employer to accommodate his back injuries. On August 2, 2001, the employee injured his low back again while sliding some material off a forklift onto a storage pile. Within a few days after reporting the injury, the employee was advised that he was losing his job as part of a financial restructuring of the employer. As part of the consideration for receiving severance pay, the employee agreed not to seek employment with the employer or any of its affiliates. The parties have stipulated that the employee=s weekly wage on the date of his last injury was $929.40.
The employee=s diagnosis is lumbar pain syndrome with sciatica. An MRI showed a disc protrusion with an annular tear at L5-S1 but surgery has not been recommended. The employee=s treating doctor, Dr. Paul Terrill, has placed permanent restrictions on the employee of occasional lifting up to 50 pounds, frequent lifting up to 25 pounds, occasional bending and twisting, and sitting up to four hours a day with the ability to stand and walk frequently.
After his termination from Arrowhead Electric, the employee was assigned a QRC, Jean Anderson. Under the direction of Ms. Anderson the employee commenced a job search in Grand Marais and the surrounding area. Grand Marais is the largest community in Cook County with a population of just over 1,000; there are about 5,000 people in the county. Duluth is approximately 100 miles away.
The employee found a job as a groundskeeper at a local golf course in the summer of 1992. The job paid $8.00 an hour and was intended to be a full-time for 40 hours a week but the employee stated that, because of rain or other weather problems, he usually worked about 30 hours a week. When the golf season ended in October 2002, the employee obtained a part-time job as a school bus driver, a job which paid $13.60 an hour. When school ended in June 2003, the employee went back to work at the golf course and received a $1.00 per hour raise.
The QRC prepared a retraining plan which was filed on January 22, 2003. The plan called for the employee to be retrained as a radiologic technician at Lake Superior College in Duluth in a program lasting 143 weeks. The QRC indicated in the plan that the anticipated economic status of the employee after the program would be $779.20 a week. The employer and insurer objected to the retraining proposal and the employee requested certification of the dispute from the Department of Labor and Industry. The matter was then referred to the Office of Administrative Hearings for a hearing.
Richard VanWagner conducted a vocational evaluation on behalf of the employer and insurer on April 23, 2003 and prepared a report of June 24, 2003. Mr. VanWagner concluded that the retraining plan was inappropriate for the employee. It was his opinion that the employee had not exhausted the labor market in his job search and that he should look for work in a variety of fields in Duluth. Mr. VanWagner also provided an example of what he considered an appropriate job, a utility locator for SM&P Utility Resources.
The employee was also evaluated at the request of his attorney by another vocational expert, Jack Casper, on June 25, 2003. Mr. Casper agreed with the employee=s QRC that retraining was necessary in order for the employee to minimize his loss in economic status following his injuries and that the proposed retraining program was reasonable for the employee. Mr. Casper=s deposition was taken on July 3, 2003, and he commented on Mr. VanWagner=s conclusion that job search in the Duluth area would be appropriate. It was Mr. Casper=s opinion that the types of jobs identified by Mr. VanWagner as existing in Duluth would pay wages in the $8.00 to $9.00 an hour.
The hearing was held on July 10, 2003, before Compensation Judge Bradley Behr. At the hearing, the employee testified as to his employment and medical history as well his understanding of the retraining proposal. In response to questions from his attorney, the employee stated that he would be willing to relocate to Duluth, St. Cloud, Menomonie, Wisconsin, Ashland, Wisconsin, or other areas after the completion of his retraining program.
The employee=s QRC testified and provided her opinion that retraining was necessary to return the employee as close as possible to his pre-injury economic status and that the proposed program would achieve that goal. She testified that the median wage for a radiologic technician in northern Minnesota was $19.48 an hour, with entry-level employment in the field being around $14.00 an hour. She did not believe that employment existed in the Duluth labor market which would pay more than entry-level wages or pay the employee more than he was already earning in Grand Marais. Ms. Anderson also questioned the existence of the utility locator position identified by Mr. Van Wagner, noting that her job developer was always doing labor market surveys in Duluth and he had not identified such a job.
Mr. VanWagner testified at the hearing and objected to the proposed retraining plan on a number of grounds; including the employee=s tested IQ, the employee=s lack of interest in the medical field as shown by his testing results, his prior school experience, and his age. It was Mr. Van Wagner=s opinion that the employee should expand his job search to include Duluth and that, if he did so, he would be able to find a job which would equal his potential earnings after retraining. Mr Van Wagner referred to work as a truck driver or dispatcher which he said would pay in the $12.00 to $14.00 range. Mr. VanWagner discussed at length the utility locator position as support for the opinion that such employment existed in the Duluth area.
In his Findings and Order, served and filed July 30, 2003, the compensation judge concluded that the employee had not proven that the retraining course in radiologic technology was more reasonable than job search and placement in the Duluth area. The compensation judge found the retraining plan was premature and denied the employee=s claim. The employee appeals.
The goal of rehabilitation is to return the employee as closely as possible to the economic status the employee would have enjoyed but for the injury. Minn. Stat. ' 176.102, subd. 1(b). In arriving at that goal, retraining, defined by the statute as a formal course of study in a school setting, may be necessary if it will be likely to restore impaired capacity to earn a livelihood. Siltman v. Partridge River Inc., 523 N.W.2d 491, 51 W.C.D. 282 (Minn. 1994). In considering whether retraining is appropriate, Anecessary@ does not mean Aindispensable@ but rather means that retraining will likely restore the employee=s impaired capacity to earn a livelihood. Leahy v. St. Mary=s Hosp., 339 N.W.2d 265, 36 W.C.D. 253 (Minn. 1983). Retraining is to be given equal consideration with other rehabilitation services. Minn. R. 5220.0750. The reasonable conclusion to be drawn is that in order to obtain retraining, the employee need not prove that retraining is the only rehabilitation option available but, rather, that retraining is an appropriate rehabilitation option.
Generally in considering whether or not retraining is appropriate, this court has applied what have come to be known as the Poole factors: (1) the reasonableness of retraining as compared to job placement; (2) the likelihood that the employee has the abilities and interest to succeed in the proposed formal cause of study; (3) the likelihood that retraining will result in reasonably obtainable employment; and (4) the likelihood that retraining will produce an economic status as close as possible to that which the employee would have enjoyed without the disability.
In the present case the employer and insurer raised a number of objections to the proposed retraining plan. It was argued that testing had not shown the area of radiologic technician to be a field in which the employee had an interest, that the employee=s grades in college were indicative of potential academic problems in the retraining program, that the employee=s age at the anticipated end of the retraining program would make placement difficult, and that the physical demands of being a radiologic technician might be beyond the employee=s physical restrictions. However, the central objection of the employer and insurer was that job placement had not been exhausted as a rehabilitation option. While agreeing that the employee had demonstrated a diligent and successful job search in his community, the employer and insurer argued that the employee=s job search should be expanded to include Duluth-Superior, since it was in Duluth that the employee anticipated attending the retraining program.
In his findings, the compensation judge determined that entry level jobs in radiologic technology in Duluth-Superior did not pay more than jobs in that location for which the employee was otherwise qualified, such as bus driver or utility line locator. Based upon that determination, the compensation judge concluded that retraining was premature until the employee had conducted a job search in the Duluth-Superior area, given the Aunique@ facts in this case. We conclude the compensation judge erred as a matter of law.
The two rehabilitation options presented to the compensation judge for comparison were additional job placement or retraining. If a rehabilitation plan calls for job placement, the employee is then obligated to engage in a diligent search for employment. Minn. R. 5220.0100 subp. 18; Ruppert v. Sandoz/Northrup King, 61 W.C.D. 342 (W.C.C.A. 2001). An employee may not be required to job search outside his or her own community. Fredenburg v. Control Data Corp., 311 N.W.2d 860, 34 W.C.D. 260 (Minn. 1981). The compensation judge=s decision does not compare job search in the employee=s community with retraining but instead compares retraining with a job search obligation which may not be imposed upon the employee. The decision goes far beyond a comparison of two equally favored rehabilitation options.
The employer and insurer cite our decision in Stotts v. Polaris Industries, slip op. (W.C.C.A. Sept. 5, 2003) as authority for the compensation judge=s decision. However, in that case, we affirmed the decision of the compensation judge in denying retraining where the possibility of employment outside the employee=s community was only one of several factors, including lack of a diligent job search in the community, referred to by the compensation judge as grounds for his decision. Those additional factors do not exist in the present case.
The employer and insurer also point out that the compensation judge=s decision does not require the employee to job search in Duluth. While this is technically correct, under the decision, the employee must either decide to accept the limited wages in his local community or, if he wishes to pursue retraining, he will have to amend his retraining plan so that it provides for job placement and, accordingly, a diligent job search in Duluth-Superior. Failure by the employee to do so would not only result in continuing denial of his retraining request but could also lead to discontinuance of his current benefits. Minn. Stat. '176.102 subd. 13.
We disagree that this is a Aunique@ case which calls for this expanded obligation of the employee as a prerequisite for retraining. No findings were made which would indicate why this case is unique. Minnesota is a state with 87 counties, the overwhelming majority of which are non-urban and more than 100 miles away from a metropolitan area. If this decision were affirmed, injured employees in those counties could all face the same conundrum presented to the employee here. Such a result would place a significant burden on the ability of injured workers to receive retraining and would also represent a major change in workers= compensation law in Minnesota.
We believe the practical difficulties inherent in a system which would require the employee to job search in a different geographic area as a prerequisite to retraining are illustrated by the evidence in the present case. The vocational expert for the employer listed a number of possible jobs which were said to be generally available in Duluth-Superior but no actual employers were identified and there was no evidence as to whether or not there were actual job openings for which the employee might be qualified. The only actual job identified was that of a utility locator for SM&P Utility Resources, a job which would pay $12.00 to $14.00 an hour. The compensation judge, referring to this position in both his findings and his memorandum, clearly found the existence of this job significant in his decision. However, while the vocational expert stated the job was in Duluth, the exhibit prepared by the expert clearly stated the job was in Rochester. This discrepancy was not addressed at any point in the hearing or in the findings. Whether or not the job of utility locator actually exists is not clear from the record but it is obviously not substantial evidence or even an illustration of actual employment which would be available to the employee if he were to move to Duluth.
We believe the compensation judge also erred in comparing entry level wages after retraining with the wages available in other jobs without retraining. The goal of rehabilitation is to return the employee as closely as possible to the economic status which he would have enjoyed but for the disability. 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 focus on the entry level wages for radiologic technicians rather than considering the potential for future increase in wages in that occupation is not in accordance with the statute.
We would note also, in this regard, that the employee in this case is limited to 225 weeks of temporary partial disability benefits under Minn. Stat. ' 176.101, subd. 2. A job which pays this employee $13.00 an hour would provide him with little more than half of his pre-injury earnings. While temporary partial disability compensation being paid now may cushion that wage loss, that benefit will soon end for the employee and it seems reasonable to consider which rehabilitation option, retraining or job placement, will minimize the economic loss the employee faces in the very near future.
The compensation judge also determined that the employee did not prove that his claim for housing in Duluth and travel expenses for weekly return trips to Grand Marais was reasonable. While the employee appealed this finding he did not address the issue in his brief and it is considered waived. Minn. Rule 9800.0900 subpart 1.
The compensation judge=s order denying housing and travel expense is affirmed. The order denying approval of the retraining plan is reversed.
WILLIAM R. PEDERSON, Judge
I respectfully dissent. The majority asserts that the compensation judge=s decision imposes an expanded obligation on the employee to search for work outside his home community as a prerequisite for retraining. In this case, they assert, rather than compare the employee=s job search in his community with the retraining proposal, the judge compared retraining with a job search obligation that may not be imposed on the employee. I disagree.
First of all, the judge=s decision does not require the employee to seek work outside his home community of Grand Marais. In evaluating the employee=s retraining plan, however, the judge found it significant that retraining in radiological technology is unlikely to result in reasonably attainable employment within fifty miles of Grand Marais. In other words, neither vocational option, job search or retraining, will produce for the employee the desired Aeconomic status@ in Grand Marais. In order for the employee to arrive at an economic status as close as possible to that he would have enjoyed without disability, he must relocate.
The employee did express a willingness to relocate to the Duluth-Superior area, not only for schooling but to obtain work upon completion of retraining. The judge found it likely that, upon completion of the program, employment would be reasonably attainable in the Duluth-Superior labor market. He found also that the employee currently qualifies for jobs in Duluth that pay a wage comparable to entry level jobs in radiological technology. Recognizing that the reasonableness of the proposed retraining plan must be viewed in the context of a labor market other than Grand Marais, and finding that the employee had not conducted a job search outside a fifty mile radius of Grand Marais, the judge concluded that the employee did not prove that a retraining course in radiological technology is more reasonable than searching for a job in the Duluth-Superior area. Rather than Aexpanding@ the employee=s obligation to look for work, the compensation judge=s decision simply acknowledges that the relevant geographic area in this case is not the employee=s home community.
In his memorandum, the compensation judge noted that it is not clear whether the employee will be able to obtain employment in Duluth that provides an economic status as close as possible to that he would have enjoyed without disability. However, he stated also that Acomparison of placement opportunities in the extremely limited Grand Marais job market with post-retraining opportunities in the significantly larger Duluth market is not a fair or reasonable comparison.@ I agree. It is the employee=s burden to establish the reasonableness of a proposed rehabilitation plan. Under the circumstances of this particular case, where neither job placement activities nor retraining are likely to result in reasonably attainable employment within a fifty mile radius of Grand Marais, the reasonableness of a retraining plan as compared to other job placement activities must be viewed in the context of a geographic area broader than the employee=s home community. I would affirm.
 Poole v. Farmstead Foods, 42 W.C.D. 970 (W.C.C.A 1989).