WADE M. PATERSON, Employee, v. HAUENSTEIN & BURMEISTER and CNA/TRANSCONTINENTAL INS. CO., Employer-Insurer/Appellants.
WORKERS= COMPENSATION COURT OF APPEALS
NOVEMBER 28, 2005
REHABILITATION - RETRAINING. Substantial evidence supports the compensation judge=s findings with respect to the four factors set forth in Poole v. Farmstead Foods, 43 W.C.D. 970 (W.C.C.A. 1989), and his award of a four-year retraining plan with the goal of obtaining a bachelor=s degree in health information management.
Determined by: Johnson, C.J., Rykken, J., and Stofferahn, J.
Compensation Judge: Bradley J. Behr
Attorneys: Russell J. LaCourse, LaCourse Law Office, Duluth, MN, for the Respondent. Philip C. Warner, Law Offices of Joseph M. Stocco, Edina, MN, for the Appellants.
THOMAS L. JOHNSON, Judge
The employer and insurer appeal the compensation judge=s award of a four-year retraining plan in health information management. We affirm.
Wade M. Paterson, the employee, sustained an injury to his right shoulder on September 29, 2000, while working for Hauenstein & Burmeister, the employer. The employer and its insurer, CNA/Transcontinental Insurance Company, admitted liability for the employee=s personal injury. The employee earned a weekly wage of $751.27 on the date of his injury and received health and dental insurance, sick pay, vacation pay and retirement benefits, and participated in a 401(k) plan.
Following the injury, the employee underwent two surgical procedures, the last of which was a rotator cuff repair and carpal tunnel surgery. The employee has permanent physical restrictions as a result of his injury that include no overhead lifting and no lifting over 45 pounds on an occasional basis. In an unappealed finding, the compensation judge found these restrictions preclude the employee from returning to his pre-injury job or the kind of physical work he performed before the personal injury. (Finding 3.)
The employee returned to work for the employer until May 2001, when a strike occurred. The employee was not called back after the strike. Prior thereto, the employee sold his home in Minneapolis and relocated to Kerrick, Minnesota, approximately 40 miles from Duluth. The employee found a job at Diamond Brands in Cloquet, Minnesota, as an entry level machine operator, earning $9.66 an hour. He was laid off in January 2002 and then went to work for Darrel Klocke Construction in Askov, Minnesota, in July 2002. The employee performed general labor until March 2003, when Klocke Construction terminated the employee because they had no work available within his restrictions.
John Witzke, a qualified rehabilitation consultant (QRC) with Mesabi Rehabilitation Services, met with the employee on May 22, 2003, and completed a rehabilitation consultation. The QRC concluded the employee was eligible for rehabilitation services and prepared a rehabilitation plan with a goal of a return to work with a different employer. A job placement plan and agreement was signed by the employee on July 29, 2003. The employee then began working with Theresa Lerol, a placement specialist with Mesabi Rehabilitation Services, with all activities monitored by Mr. Witzke.
On September 24, 2003, the employee began a full-time job as a security guard at Black Bear Casino in Carlton, Minnesota, earning $7.60 per hour. In November 2003, the employee obtained a new job with Terra Tek in Cloquet, Minnesota, performing clerical work, data entry, invoices, billing and bookkeeping, purchasing, and customer service and sales. The employee continued to search for higher-paying employment. On the date of the hearing, the employee was earning $9.00 an hour at Terra Tek, with no benefits, for just under 40 hours of work a week. QRC Witzke opined the employee=s job with Terra Tek did not achieve the goal of rehabilitation since it did not return the employee to the economic status he had prior to his injury.
In August 2003, the QRC administered vocational tests that showed the employee was reading at post-high school level, his spelling and math skills were at high school level and his IQ composite scores fell within the average to above average range. In February 2004, the employee and his QRC began investigating retraining. Mr. Witzke and the employee eventually settled on a program in health information management at the College of St. Scholastica in Duluth, Minnesota. Mr. Witzke then ordered a labor market survey which he stated demonstrated it was likely the employee could locate employment within the health information management field that would restore the employee to his prior economic status.
Mr. Witzke recommended the employee obtain a two-year degree at Fond Du Lac Tribal and Community College and then transfer to St. Scholastica to complete the bachelor=s degree program which, Mr. Witzke opined, the employee could complete in 156 weeks. The QRC further opined a job in health information management was within the employee=s physical restrictions, and he testified the employee had the ability and interest to succeed in the proposed course of study. The projected cost of the retraining plan, excluding wage loss benefits, was $74,684.00. Including wage loss benefits, the estimated cost of the plan was in excess of $180,000.00.
L. David Russell, a rehabilitation consultant, performed a vocational evaluation of the employee on September 23, 2004, at the request of the employer and insurer. Mr. Russell reviewed the vocational rehabilitation reports and vocational testing completed by Mesabi Rehabilitation Services and conducted additional vocational testing. Mr. Russell concluded the employee=s tests demonstrated average reading, vocabulary, spelling and arithmetic abilities in the 39 to 55 percentile with well-balanced vocational abilities and relative strength in mechanical reasoning, spatial relations, verbal reasoning and use of hands with weakness in language usage. Mr. Russell reviewed the proposed retraining plan and concluded it was almost a certainty the employee could not graduate within the time frame of the proposed plan, and opined the anticipated plan costs were grossly underestimated. Mr. Russell further concluded the job outlook for placement as a medical records administrator was poor in the northern Minnesota area. Finally, based on the employee=s low C grade-point average in high school, he concluded there was a high risk the employee would not complete the proposed retraining. Mr. Russell further opined that placement efforts by Mesabi Rehabilitation Services were not well structured and lacked sufficient targeted jobs. The 1,089 employer contacts made by the placement specialist, Mr. Russell testified, resulted in only four interviews of which two were with the current employer. In Mr. Russell=s opinion, additional job placement efforts should be made with clear performance criteria for both the placement provider and the employee.
In May 2004, QRC Witzke prepared a Retraining Plan and Rationale and forwarded the plan to the insurer for approval. The insurer did not respond, and on August 9, 2004, Mr. Witzke filed a Rehabilitation Request seeking approval of the proposed retraining plan. The employer and insurer filed a response denying the request. Following a December 11, 2004, administrative decision and order denying the rehabilitation request, the employee filed a timely Request for Formal Hearing. The case was heard by a compensation judge at the Office of Administrative Hearings on April 14, 2005. The judge issued a Findings and Order on May 9, 2005, approving the employee=s request for retraining at Fond du Lac Tribal and Community College and St. Scholastica for a four year bachelor=s degree in the field of health information management. The employer and insurer appeal.
The employer and insurer assert the employee failed to sustain his burden of proof and has not satisfied the requirements for approval of retraining set forth in Poole v. Farmstead Foods, 43 W.C.D. 970, 978 (W.C.C.A. 1989). We are not persuaded.
The purpose of retraining is to return an 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 the disability. Minn. Stat. ' 176.102, subd. 1(b); Minn. R. 5220.0100, subp. 34 (2000). Whether retraining is appropriate is a question of fact for the compensation judge. Norby v. Arctic Enters., 305 Minn. 519, 232 N.W.2d 773, 28 W.C.D. 48 (1975). Areas of concern in evaluating proposed retraining include: (1) the reasonableness of retraining as compared to job placement activities; (2) the likelihood the employee has the interest and ability to succeed in the proposed course of study; (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.
1. Reasonableness of retraining as compared to further job search. The employer and insurer argue, relying on the report and testimony of their vocational expert, L. David Russell, that the job placement plan was deficient and that the employee has not yet engaged in a reasonably diligent job search for alternative employment. The compensation judge, however, accepted the testimony of the employee=s QRC, finding the employee had fully cooperated with rehabilitation efforts and had conducted a reasonable and diligent job search from August 2003 through the date of hearing. While Mr. Russell criticized the employee=s job search as ineffective and lacking focus, the judge accepted QRC Witzke=s testimony that there are a limited number of manufacturing or production jobs in the Kerrick and Duluth-Superior area, and that a broad range of jobs was included in the search to identify any employment possibilities that might approach the employee=s date-of-injury wage and benefits. Mr. Witzke further testified that, in his opinion, a job search would be unlikely to restore the employee=s pre-injury economic status. A trier of fact=s choice between experts whose testimony conflicts is usually upheld unless the facts assumed by the expert in rendering his opinion are not supported by the evidence. See Nord v. City of Cook, 360 n.W.2d 337, 342-43, 37 W.C.D. 364, 273-73 (Minn. 1985). There is adequate foundation for Mr. Wiztke=s opinions, and the compensation judge did not err in accepting them.
The employer and insurer additionally argue there are alternative and less expensive retraining options available to the employee. The only evidence regarding alternatives was the testimony of Mr. Russell who suggested the employee could look into acquiring additional computer skills or consider a technical medical records program. No information was provided regarding any specific program or course of study that the judge could compare to the employee=s proposed retraining plan. Compare, e.g., Kunferman v. Ford Motor Co., 55 W.C.D. 464 (W.C.C.A. 1996). Further, Mr. Russell admitted that these alternatives Awould not replace his earnings.@ (Resp. Ex. 2 at 34-35.) Unlike the employee in Rovinsky v. Paulson=s Super Value, slip op. (W.C.C.A. Oct. 20, 1993), the employee in this case has suffered a very substantial loss of earnings. While the cost of the proposed four-year retraining program is unquestionably high, there was competent evidence that without retraining the employee is unlikely to regain his lost earning capacity.
2. Ability to succeed in the proposed formal course of study. The employer and insurer assert the employee=s high school grades, vocational testing, the interest tests administered by Mr. Russell, and the fact the employee has been out of school for over 22 years, requires the conclusion the employee has neither the ability or interest to succeed in the course of study proposed in the retraining plan. We disagree.
Once again, there is a conflict in vocational expert testimony on this point. The employee=s QRC, Mr. Witzke, testified that although the vocational testing was given after the employee had been out of high school for many years, he scored at the post-high school level in reading and at high school level in spelling and math. Further, according to Mr. Witzke, the intelligence testing showed the employee was in the average to above average range. The QRC stated the testing did not raise red flags, but Agave me green lights,@ and he was satisfied the employee was capable of learning and mastering new material, being competitive with other students and succeeding in obtaining a bachelor=s degree. (T. at 109.) Mr. Witzke additionally testified that, in his experience, interest testing was not particularly useful, and he believed employee=s demonstrated commitment, initiative and motivation in pursuing information about the program and careers in health information management was a better measure of current interests. Finally, since high school, the employee has successfully learned and mastered a number of new skills, including building and programming robotic machines, knowledge about computer software programs, operating systems, hardware and networking, supervisory skills, and clerical and business-related skills.
While there is clearly evidence to the contrary, there is also substantial evidence to support the compensation judge=s finding that the employee has the capacity, interest and motivation to successfully complete the proposed retraining program.
3. Likelihood retraining will result in reasonably attainable employment. The employer and insurer, relying on the testimony and report of Mr. Russell, assert the prospects for jobs in health information management in the Duluth-Superior area are very small and that it is a small occupation nationally. They further assert the employee is not likely to be willing to relocate, and argue the retraining plan is, therefore, not likely to result in employment.
The employee=s QRC obtained a labor market survey and opined that, based on the survey, there are likely to be jobs available to the employee in the health information management field, locally, in the midwest and nationally. The labor market survey included review of the Occupational Outlook Handbook and Minnesota Careers, a search of current Minnesota job bank listings, internet searches, contact with the placement office at St. Scholastica and six direct employer contacts. The employee testified he would be willing to relocate upon graduation and the judge accepted his testimony. There can be no requirement that employment be guaranteed upon completion of retraining, and the evidence in this case is sufficient to support the compensation judge=s conclusion that the employee presented sufficient evidence that health information management is a growing field and that employment in the field is likely to be reasonably attainable upon completion of the retraining program.
4. Likely to produce an economic status as close as possible to that enjoyed without disability. Finally, the employee and insurer argue, again based on the testimony of Mr. Russell, that there is substantial evidence the retraining plan is not likely to produce an economic status as close as possible to that enjoyed by the employee at the time of the injury. The evidence indicated the anticipated starting salary for graduates of the St. Scholastica health information management program was $28,000 to $35,000. As noted by the compensation judge, this is substantially more than the employee=s present earnings of about $18,000 to $19,000 per year. QRC Witzke testified that jobs in health fields generally included generous benefits packages. While the employee may not achieve a wage equivalent to his pre-injury wage of approximately $39,000.00 a year upon graduation, evidence was presented of opportunities for advancement in the field with significantly higher salaries. There is substantial evidence that employment in the health information management field is likely to produce an economic status Aas close as possible@ to that which the employee enjoyed at the time of his work injury.
Taken as a whole, although this is a close case, we conclude there is substantial evidence to support the compensation judge=s findings and his award of retraining benefits as set forth in the proposed retraining plan. Accordingly, we must affirm.