JOHN P. BIEDERMAN, Employee, v. SB FOOT TANNING CO./RED WING SHOE and CONSTITUTION STATE SERV. CO., Employer-Insurer/Appellants.
WORKERS= COMPENSATION COURT OF APPEALS
FEBRUARY 9, 2006
REHABILITATION - DISCONTINUANCE; REHABILITATION - ECONOMIC SUITABILITY. Where the employee=s earnings at his post-injury job with the employer reflected a significant loss of earning capacity subsequent to the work injury, where that post-injury job was apparently the only one available to the employee at the employer within his restrictions, and where the employee was not yet forty years old, the compensation judge=s approval of the employee=s rehabilitation plan amendment to pursue with a QRC of his own choosing employment with a different employer was not clearly erroneous and unsupported by substantial evidence, notwithstanding the fact that the QRC had not yet conducted her own labor market survey or vocational tests and the employer=s vocational expert had opined that no alternative jobs with better wages and benefits existed in the employee=s labor market.
Determined by: Pederson, J., Wilson, J., and Rykken, J.
Compensation Judge: Kathleen Behounek
Attorneys: Thomas J. Germscheid, Thomas J. Germscheid, LLC, Maplewood, MN, for the Respondent. Krista L. Twesme, Aafedt, Forde, Gray, Monson & Hager, Minneapolis, MN, for the Appellants.
WILLIAM R. PEDERSON, Judge
The employer and insurer appeal from the compensation judge's granting of the employee=s request for amendment of his rehabilitation plan. We affirm.
John Biederman graduated from high school in 1985, attended one year of college on an athletic scholarship, and has had no further formal education. After college, Mr. Biederman [the employee] worked one year as a concrete laborer, and in 1988 he went to work for SB Foot Tanning Company/Red Wing Shoe [the employer], for whom he has worked ever since. On April 6, 2001, Mr. the employee sustained an injury to his low back while operating a leather splitting machine in the course and scope of his employment with the employer. He was thirty-four years old on that date and was earning a weekly wage of at least $768.60. In addition to his wages, he was also receiving, as a union member with seventeen years of seniority with the employer, various benefits including health insurance, short and long term disability coverage, retirement benefits, four weeks of paid vacation annually, and eleven paid holidays each year. The employer and its insurer admitted liability for the injury and commenced payment of temporary total disability benefits as of April 9, 2001.
On April 16, 2001, the employer and insurer informed the employee that, Apursuant to Minnesota Statute Sec. 176.102 Subd. 11, any request for retraining must be filed with the Commissioner of the Department of Labor and Industry before 154 [sic] weeks of any combination of temporary total or temporary partial compensation benefits have been paid.@ On April 23, 2001, the employee underwent an MRI scan of his lumbar spine, which was read to reveal the following: at L5-S1, grade I-II spondylolisthesis due to chronic-appearing L5 spondylolysis, severe bony foraminal stenosis, and a foraminal disc herniation contributing to severe ganglion compression; at L4-5, disc degeneration with a small disc bulge without nerve compression; and at L3-4, moderate disc dehydration with a broad-based disc herniation moderately compressing the L4 nerve sleeves.
On May 10, 2001, the employee was examined by family practice specialist Dr. Mark Rotty for complaints of low back pain with right leg pain and numbness or tingling radiating below the knee. Dr. Rotty diagnosed mechanical low back pain, lumbar degenerative disc disease, deconditioning syndrome, and spondylolisthesis, and he prescribed physical therapy. He indicated also that the employee could return to work on May 11, 2001, restricted from lifting over twenty-five pounds occasionally, from doing work that required static, partially flexed back posture, and from working more than eight hours a day, so long as he could change positions frequently. The employer and insurer paid temporary total disability benefits through May 13, 2001, and on May 14, 2001, the employee returned to a different job with the employer, operating a slow dryer machine. He was evidently unable to continue in that job, however, and as of May 16, 2001, his temporary total disability benefits were reinstated.
The employee=s symptoms continued, and on July 19, 2001, Dr. Rotty recommended a surgical consultation and assignment of a QRC, Aas [the employee] will be unable to return to his previous work activities and there is some question whether he can even return to work with his same employer.@ By August 8, 2001, however, the employee had made Aexcellent progress after completing twenty-one physical therapy sessions, and Dr. Rotty released him to return to work within his earlier restrictions. On August 29, 2001, following a consultation by the employee with surgeon Dr. Timothy Garvey, Dr. Rotty opined that the employee had reached maximum medical improvement [MMI] in his work-related disability, and he rated the employee=s permanent partial disability at 10% of the whole body, as a lumbar pain syndrome under Minnesota Rule 5223.0390, subpart 3C(2). Noting that Dr. Garvey had offered the employee the option of a three-level fusion that the employee was hoping to avoid, Dr. Rotty also recommended a functional capacities evaluation [FCE].
On September 10 and 11, 2001, the employee underwent the recommended FCE, which resulted in a recommendation that he could perform the job at the slow dryer machine after all. Specifically, as documented in a report dated September 18, 2001, the FCE indicated in part that the employee could lift up to fifteen pounds on a regular basis and up to forty-five pounds rarely but most of the time should limit his lifting to about twenty-five pounds and should also limit his elevated work, his static forward bending, his body rotation, his crawling, and his sitting. The employee returned to his job at the slow dryer machine on September 24, 2001, and on September 26, 2001, the employer and insurer discontinued the employee=s temporary total disability benefits and reinstated temporary partial disability benefits. On that same date, the employer and insurer repeated their notification of the employee that any request for retraining must be filed with the Department of Labor & Industry before 154 (sic) weeks of temporary total and/or temporary partial disability benefits have been paid. On October 11, 2001, Dr. Rotty indicated that the employee was able to work within the restrictions noted on his FCE report.
On August 12, 2002, in a letter to the insurer, Dr. Rotty amended his rating of the employee=s permanent partial disability, indicating that, instead of 10%, for a lumbar pain syndrome under Minnesota Rule 5223.0390, subpart 3C(2), as previously rated, the employee=s rating should be 14%, for a lumbar pain syndrome with spondylolisthesis under Minnesota Rule 5223.0390, subpart 3D(2). On September 20, 2002, the employer and insurer commenced payment of permanent partial disability benefits to the employee in the eventual amount of $11,900.00, based on Dr. Rotty=s amended rating.
The employee continued working at his job operating the slow dryer machine until April 2004, when that position was apparently altered by new technology that effectively placed the position outside the employee=s restrictions. On May 5, 2004, Dr. Mark Sprangers, to whom the employee had apparently been referred by the employer, wrote to the employee in follow-up to a telephone consultation with him regarding his employment options. In his letter, Dr. Sprangers stated in part as follows:
Based on [certain medical and rehabilitation] reports, and your previous shoulder surgeries, and inability to tolerate working with Awet@ leather, and based on my understanding of the jobs available at the [employer=s] Tannery, you have very limited options at this point. Your FCE and shoulder problems would prevent you from handling leather sides and throwing them. The considerable lumbar spine changes noted on your MRI scan markedly restrict your ability for repetitive bending, reaching, pushing and pulling, as well as lifting. I believe that the FCE report of 09/18/2001 was a valid representation of your ability to do work activities as of that date.
On May 10, 2004, the employee met with employer-appointed QRC Mary Zlock, who conducted a rehabilitation consultation on May 16, 2004, and concluded that the employee was eligible for rehabilitation services. On May 17, 2004, QRC Zlock completed an R-2 Rehabilitation Plan, in which she indicated that the vocational goal was still to be determined but was essentially to explore a return to work with the employer and possibly to implement vocational activities. Three days later, on May 20, 2004, QRC Zlock reported that she had accompanied the employee to inspection of a job for him with the employer operating a standing forklift, which she concluded appeared to be within the employee=s restrictions. On May 24, 2004, the employee began working at the job, and on June 2, 2004, Dr. Sprangers also approved of the job, restricting the employee only from doing overtime work but recommending nevertheless a new lumbar MRI scan.
On June 14, 2004, apparently discontent with his assistance from QRC Zlock and concerned also about the stability of his job with the employer and his economic future, the employee requested a change of QRC, ultimately obtaining the assistance of QRC Amy Christensen. On June 16, 2004, QRC Christensen completed an R-2 Rehabilitation Plan, in which she indicated as a vocational goal the following: A[The employee] has returned to work with the DOI employer. He is scheduled for an MRI and may have ongoing medical issues that need to be addressed. [He] is working at a significant wage loss in a position that may not be economically suitable for him.@ On June 21, 2004, the employee underwent the lumbar MRI scan recommended by Dr. Sprangers, which revealed little change since the April 23, 2001, MRI scan. On June 24, 2004, the employee=s attorney filed a Request for Retraining and Rehabilitation with the Department of Labor and Industry. According to rehabilitation records for July 1, 2004, Dr. Sprangers saw the employee again on June 29, 2004, reviewed with him his MRI scans, and concluded that surgery would be required in the unspecified future. On August 17, 2004, QRC Christensen completed an R-3 Rehabilitation Plan Amendment, asserting that the employee=s current job with the employer was not an economically suitable position and that he should be given opportunity to search for a more economically suitable position and Apossible skill enhancement.@ On August 30, 2004, QRC Christensen reported that Dr. Sprangers had seen the employee again on August 27, 2004, and had again concluded that the employee would most likely need surgery at some point in the future. In a memo to the employee=s attorney dated September 10, 2004, QRC Christensen indicated that she had updated the employee=s rehabilitation plan to include job placement, vocational testing, and a transferable skills analysis. The R-3 Rehabilitation Plan Amendment completed August 17, 2004, was filed September 24, 2004.
On January 5, 2005, the matter was considered at an administrative conference, where issues included the employee=s entitlement to Ajob search with a different employer and/or on-the-job training and retraining,@ consequent to his work injury on April 6, 2001. By order filed January 6, 2005, the compensation judge approved the rehabilitation plan amendment and awarded payment of the rehabilitation bills at issue. On January 7, 2005, QRC Christensen completed another R-3 Rehabilitation Plan Amendment, indicating that the employee continued to work for the employer within his restrictions but that, Adue to his significant wage loss we will begin job search, transferable skill assessment and exploration of skill enhancement training to try and find a job closer to his wage at the date of injury.@ On January 25, 2005, the employer and insurer filed a request for formal hearing, contesting the award of ongoing rehabilitation services and asserting in part that retraining was not an issue in the case, because the employee was statutorily barred from bringing such a claim by failing to file a retraining plan before 156 weeks of a combination of temporary total and temporary partial disability benefits had been paid. On February 7, 2005, the employee filed a claim petition, asserting entitlement to reimbursement of underpayment of temporary total disability benefits from April 7, 2001, to the present, together with entitlement to certain medical and rehabilitation benefits, attorney fees, and interest and penalties on overdue amounts. Also on that same date, the employee refiled the R-3 Rehabilitation Plan Amendment filed earlier on September 24, 2004, asserting entitlement Ato search for more economically suitable positions and possible skill enhancement,@ although acknowledging that he Amay not be a retraining candidate.@
On March 3, 2005, the employee was examined for the employer and insurer by orthopedic surgeon Dr. Gary Wyard, who diagnosed long-standing grade II spondylolisthesis, multilevel degenerative disc disease, intact neurology, and status post bilateral shoulder surgery. He concluded that the employee was disabled by his condition and should be restricted from repetitive stooping, squatting, bending, twisting, lifting, pushing, and pulling. It was also Dr. Wyard=s opinion, however, that the employee=s degenerative disc disease was congenital and developmental in nature and pre-existed his work injury. He agreed with Dr. Sprangers that the employee=s FCE results continued to be an appropriate measure of his permanent restrictions, and it was his opinion that the employee had reached MMI with regard to his work injury six months after the injury, which he considered a temporary aggravation of the employee=s pre-existing condition. He agreed also that the employee=s permanent partial disability was rateable at 14% of the whole body, but it was his opinion that disability was solely related to the employee=s pre-existing condition and not to his work injury.
On March 9, 2005, certified rehabilitation counselor [CRC] Jan Lowe performed for the employer and insurer an independent vocational evaluation of the employee. Based on an interview, a survey of the employee=s labor market, vocational testing, and a review of the employee=s employment records, CRC Lowe concluded, in a report to the employer and insurer on April 18, 2005, that
it would be difficult, if not impossible, for [the employee] to locate a suitable position which offers higher earnings (and benefits) than those he is currently receiving from his job at [the employer]. The jobs which offer higher earnings are those which do not match [the employee=s] educational qualifications and/or his physical capacities.
Ms. Lowe asserted further that the employee and his QRC had not, moreover, proposed any actual plan that would mitigate or eliminate any lost earnings. On June 20, 2005, vocational rehabilitation counselor Dennis Zolondek, of the Minnesota WorkForce Center, with whom the employee had been pursuing alternative employment, wrote to the employee informing him that that agency was closing its file on the employee, in that, being employed and receiving workers= compensation, he no longer qualified for services Abecause you do not have a substantial impediment to employment.@
The matter came on for formal hearing on July 19, 2005, where the sole issues were the reasonableness of the employee=s proposed amendment to his rehabilitation plan and his entitlement to reimbursement of his outstanding rehabilitation bills for QRC services provided between July 16, 2004, and September 16, 2004. Evidence at hearing included the testimony of QRC Christensen, who suggested in part that the employee would have difficulty matching his current employment benefits package in a new job with a different employer, although she conceded that she had not yet conducted any labor market survey or any vocational testing. By decision filed August 10, 2005, the compensation judge found in part that the employee=s restrictions had not changed since September 2001, that he had been unable to return to his pre-injury job as a result of those restrictions, and that the evidence did not demonstrate that the employee=s current employment produced an economic status as close as possible to that that the employee would have enjoyed without his work-related disability. See Minn. Stat. ' 176.102, subd. 1(b) (the purpose of rehabilitation is to return the injured employee to a job Awhich produces an economic status as close as possible to that the employee would have enjoyed without disability@). On those findings, the judge concluded that the proposed rehabilitation plan amendment to pursue alternative employment opportunities for the employee was reasonable, and she ordered payment of the employee=s outstanding rehabilitation bills in the amount of $1,561.35, for services provided to the employee between July 16, 2004, and September 16, 2004. The employer and insurer appeal.
STANDARD OF REVIEW
In reviewing cases on appeal, the Workers= Compensation Court of Appeals must determine whether Athe 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 (1992). Substantial evidence supports the findings if, in the context of the entire record, Athey 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, A[f]actfindings are clearly erroneous only if the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed.@ Northern States Power Co. v. Lyon Food Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975). Findings of fact should not be disturbed, even though the reviewing court might disagree with them, Aunless 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.@ Id.
At the time of his work injury, the employee was earning, by stipulation of the parties, a weekly wage of at least $768.60, including overtime. The employee currently earns, at his job as a forklift operator, $13.80 an hour - - or about $552.00 a week for a forty-hour week - - the employee being now restricted from working any overtime. In light of this and other evidence, the compensation judge found that the employee=s current employment with the employer did not produce an economic status as close as possible to that that the employee would have enjoyed without disability, and she therefore concluded also that the proposed rehabilitation plan amendment to pursue alternative employment opportunities for the employee was reasonable. Accordingly, the judge held also that the employer and insurer were liable for payment of the employee=s outstanding rehabilitation bills for services between July 16, 2004, and September 16, 2004, which were at issue at the administrative conference from which this formal hearing proceeded.
Noting that the parties are in agreement that the employee=s current position as a fork-lift operator is physically suitable, the employer and insurer assert accurately that the sole dispute in this case is essentially over the economic suitability of the employee=s fork-lift job. They assert further that it is only now that the employee has worked at the job for nearly 225 weeks that the employee is complaining of its economic suitability, and only, they argue, because his entitlement to temporary partial disability benefits is about to expire. They contend, based on the reports of CRC Jan Lowe, that the employee is unlikely to find a job that is both physically suitable and more economically suitable than the one that he has, particularly given the ample employment benefits that he has secured for himself as a long-time employee of the employer. They argue that the employee=s seventeen years of seniority with the employer, together with the substantial insurance benefits and four weeks of paid vacation and eleven days of paid holidays each year that that seniority implies, constitute an important economic value additional to wages, a value that is available to the employee only in his current job. That this value would be unavailable to the employee from any new employer in the employee=s labor market has been conceded, they argue further, by the employee=s own QRC. Nor, they note, has that same QRC, who would be implementing the amended rehabilitation plan, conducted any vocational testing of the employee or any labor market survey to demonstrate any findings contrary to Ms. Lowe=s. We are not persuaded that the compensation judge=s decision was unreasonable.
The employee=s earnings at his current post-injury job with the employer reflect a significant loss of earning capacity subsequent to the work injury. We grant that wages alone are not the only measure of a post-injury job=s economic suitability and that the mere disparity between the post-injury wage and the pre-injury wage is not necessarily determinative of whether or not the post-injury wage or economic status is Aas close as possible@ to the pre-injury wage or economic status. See, e.g., Rogholt v. Knight Electric, 511 N.W.2d 442, 443, 50 W.C.D. 66, 67 (Minn. 1994) (citations omitted); see also Jerde v. Adolfson and Peterson, 484 N.W.2d 793, 795, 46 W.C.D. 620, 624 (Minn. 1992). Further, we grant also that the employee=s employment benefits with the employer appear to be very substantial and most probably not immediately obtainable with any other employer. But the employee in this case is not yet forty years old, and he would appear therefore to have a very substantial working life ahead of him, during which he might well recoup many if not most of the benefits that he has established during his seventeen years with the employer. At any rate, we see no reason to find unreasonable the compensation judge=s decision to allow the employee in these circumstances at least an opportunity to seek, for the first time with a QRC of his own choosing, employment alternative to his current job with the employer, which is apparently the best job available to him at the employer and which pays him what we see as substantially less than his pre-injury job paid him. Nor do we find persuasive the argument that QRC Christensen has not yet conducted her own labor market survey or vocational tests on the employee, she having had no assurance that her continuing work would be compensated.
The suitability of a post-injury job is at any rate a factual matter for a compensation judge to resolve as factfinder. Cf. Schneider v. Arrow Tank & Engineering, 509 N.W.2d 359, 360, 49 W.C.D. 435, 437 (Minn. 1993), citing Jerde 484 N.W.2d at 795, 46 W.C.D. at 624. In these circumstances, given the significant discrepancy between the employee=s pre-injury wage and his post-injury wage, and particularly in light of the employee=s relatively young age, we conclude that it was not unreasonable for the compensation judge to approve of the rehabilitation plan amendment that was at issue at the administrative conference from which the formal hearing before the judge arose. Therefore we affirm that decision of the judge. And, because it was not unreasonable for the judge to approve the rehabilitation plan amendment at issue, we affirm also the judge=s award of payment of the employee=s outstanding bills for rehabilitation services preceding the administrative conference. See Hengemuhle, 358 N.W.2d at 59, 37 W.C.D. at 239.
 This minimum pre-injury wage figure is by stipulation of the parties at the July 19, 2005, formal hearing below. At the time of that formal hearing, the employee was claiming a weekly wage of $805.93 for purposes of a claim petition filed earlier on February 7, 2005, which was never consolidated with the request for formal hearing.
 The statute cited provides that A[r]etraining shall not be available after 156 weeks of any combination of temporary total or temporary partial compensation benefits have been paid@ unless requested prior to expiration of that 156 weeks. Minn. Stat. ' 176.102, subd. 11(c) (underscoring added).
 QRC Zlock was apparently the employee=s third QRC since his April 6, 2001, work injury.
 The compensation judge=s finding to this effect, Finding 7, was nominally appealed from by the employer and insurer, but both the stipulated minimum weekly wage and the current hourly wage are matters in evidence, and the employer and insurer do not brief the basis for their appeal. AIssues raised in the notice of appeal but not addressed in the brief shall be deemed waived and will not be decided by the court.@ Minn. R. 9800.0900, subp. 1.
 These cases both pertain to entitlements under Minn. Stat. ' 176.101, subd. 3e, rather than to rehabilitation benefits, but their analyses of post-injury job suitability in that context nevertheless both apply Aall of those factors typically relevant in rehabilitation matters, such as pre-injury economic status, age, education, skills, disability, etc.@ Jerde, 484 N.W.2d at 795, 46 W.C.D. at 624, citing Minn. R. 5220.0100, subp. 13 (1991).
 Schneider also is technically a Subdivision 3e case.