DAVID R. ERICKSON, Employee, v. CITY OF ST. PAUL, SELF-INSURED, Employer/Appellant.
WORKERS= COMPENSATION COURT OF APPEALS
APRIL 16, 2007
REHABILITATION - ELIGIBILITY; REHABILITATION - RETRAINING. The employee=s resignation from a job which paid a wage the same as or more than his pre-injury wage does not terminate his entitlement to rehabilitation services, where, as a result of his work-related injuries, he is permanently precluded from engaging in his usual and customary occupation held at the time of his injury. The employee=s proposed retraining plan is appropriate, when considering the Poole factors.
Determined by: Rykken, J., Johnson, C.J., and Wilson, J.
Compensation Judge: Carol A. Eckersen
Attorneys: John J. Horvei, Roseville, MN, for the Respondent. Mary E. Kohl and Steven E.
Sullivan, Johnson & Condon, Minneapolis, MN, for the Appellant.
MIRIAM P. RYKKEN, Judge
The self-insured employer appeals the compensation judge=s finding that the employee is a qualified employee for rehabilitation and the approval of the employee=s proposed retraining plan. We affirm.
On October 5, 1998, David Erickson, the employee sustained an admitted work-related injury to his neck while he was working as a firefighter/EMT for the fire department of the City of St. Paul, which was self-insured for workers= compensation liability. At the time of his injury, the employee was 42 years old, and earned a weekly wage of $987.81. The employee initially was able to continue working as a firefighter/EMT but, by December 1999, his treating physicians advised him that he no longer could work as a firefighter/EMT. In December 1999, Dr. Bruce Bartie, D.O., St. Croix Orthopaedics, examined the employee concerning his ongoing problems with his neck and arms. On examination, Dr. Bartie found that the employee=s right arm was atrophied and that his cervical range of motion was Afair at best.@ He diagnosed a C6-7 disc herniation centrally and on the right side, resulting in radiculopathy and atrophy on the right side; underlying mild to moderate carpal tunnel syndrome; and severe limitation of cervical range of motion, with a history of his neck locking in position. Dr. Bartie restricted the employee from active firefighting and paramedic work, and advised that he could perform light duty work with moderate restrictions. Dr. Bartie also suggested that the employee undergo a trial of epidural steroid injections in the neck, and recommended a C6-7 anterior discectomy and fusion if the employee obtained no symptomatic relief from the epidural injections.
On December 9, 1999, the employee returned to light-duty work at the employer=s headquarters; he was transferred to an office position at the fire department=s Emergency Medical Services department. On December 27, 1999, the employee awoke with sharp pains in his chest and sought emergency medical treatment. A biopsy later confirmed the diagnosis of sarcoidosis, a chronic condition that later was judicially determined to be related to the employee=s inhalation of toxins while working as a firefighter. The employee=s symptoms from sarcoidosis have included chest pain, decreased breathing stamina from a loss of 25% of lung capacity, fatigue, a dry cough, skin nodules, and nodules in his chest. The employee testified that Dr. Bartie refused to perform the proposed fusion surgery because of the tumors discovered in the employee=s lungs at the time of his pre-operative physical examination. According to Dr. Bartie=s chart note of April 11, 2000, the employee=s cervical spine symptoms persisted, including restricted range of motion and radicular symptoms extending into his right arm, and headaches. Evidently the proposed cervical fusion surgery was never performed.
By mid-2000, the employee posted for one of two positions as a training officer assistant at the firefighter training academy. He completed a test required for that application, qualified for the position based on his test results, but was not offered the assistant position due to his physical restrictions. On September 5, 2000, the St. Paul fire chief offered the employee a light-duty job as an EMS coordinator, at the same pay and grade level as the training officer assistant position for which he had applied. After the EMS chief retired in March 2003, the employee was asked to perform both his EMS coordinator job duties and the duties previously performed by the EMS chief, and did so for the following 16 months. According to the employee=s testimony, the combined duties required extra hours, which affected his neck and arm symptoms.
As of May 16, 2000, the employee was found to be permanently totally disabled from his work as a firefighter, by the Public Employees Retirement Association (PERA). He continued working, however, for the St. Paul Fire Department, until June 30, 2004, when he resigned from that position. According the employee, his resignation from that position was prompted both by what he considered to be the tenuous status of his position with the St. Paul Fire Department and by a statutory change related to the PERA, which was to become effective July 1, 2004. Even though the employee had continued to pay union dues, his job as an EMS coordinator was not within either the firefighters= or fire supervisory administrators= unions, but was funded out of other budgets. In addition, the proposed statutory revision to PERA required that in order to qualify for lifetime disability benefits, available due to his injury sustained as a firefighter in the line of duty, he had to either elect disablement by June 30, 2004, or forfeit a significant portion of his disability income and related benefits. As a result of this change, if the employee had not left his position with the employer as an EMS coordinator before the statutory changes went into effect, he would have lost his lifetime PERA benefits, including medical benefits at a lower premium and survivor benefits at no cost. The employee determined that the economic benefits of the EMS coordinator position had changed significantly and that he had to accept disability benefits from the position to avoid adverse effects and risks resulting from the statutory change. The employee began receiving PERA disability benefits of $3,280.00 per month.
As of July 1, 2004, the employee sought replacement work in the public safety field. Recognizing the need for additional education in order to work in that field, the employee returned to school in July 2004, and obtained an associate of science degree in emergency health services in December 2004. The employee sought rehabilitation assistance; the employer objected, arguing that no rehabilitation consultation was needed, because the position that the employee held at the time of his voluntary termination was at a wage commensurate with the wage he earned at the time of injury. Following an administrative conference and related litigation, the employee eventually was granted a rehabilitation consultation. Robert Brezinski, qualified rehabilitation consultant (QRC), conducted a rehabilitation consultation on July 25, 2005, and determined that the employee was eligible for rehabilitation services. He proposed an R-2 rehabilitation plan for the employee to conduct a job search and to complete his bachelor=s of science degree in business, which the employee later completed, by January 2006.
In January 2006, the QRC filed a rehabilitation plan amendment indicating the employee=s intent to begin a master=s program and the QRC=s intent to draft a retraining program; a representative of the employer=s insurance administrator approved and signed the plan amendment. In April 2006, the QRC proposed a retraining plan which included approval of the employee=s past course work completed to attain his associate of science degree in emergency health services, as well as his bachelor=s of science degree in business and a master=s degree in public safety administration. The employer objected to the retraining plan; the employee=s rehabilitation request was denied in June 2006 by an administrative specialist. The employee filed a request for formal hearing on the retraining issue; in the meantime, the employee began his course work required for a master=s degree in public safety administration, which he is scheduled to complete in 2007.
In August 2006, the employer requested that rehabilitation assistance be suspended during the pendency of the litigation on the retraining issue. By a decision and order served and filed on September 1, 2006, however, an administrative specialist denied the employer=s request to terminate rehabilitation services. A placement supervisor began providing job placement services, and the employee investigated positions as an emergency medical services coordinator, insurance adjuster, accountant, auditor and loan officer. The employee has attended interviews for positions in the public safety area, but has received no job offers. For example, the employee applied for two Homeland Security positions, but did not obtain an interview, as only applicants with a master=s degree were interviewed. He had earlier applied for a job as an EMS coordinator for the City of Maplewood, but was determined to be ineligible due to his physical restrictions.
The employee=s claim for retraining was addressed at a hearing on September 12, 2006. Issues addressed at the hearing included whether the employee was entitled to approval of a retraining plan, with subissues including whether the employee was an appropriate candidate for retraining and whether the proposed plan was appropriate. In her findings and order served and filed on October 12, 2006, the compensation judge determined that the employee had shown that his work injuries and resulting work restrictions substantially contributed to his inability to return to work. She found that the employee did not withdraw nor retire from the labor market when he resigned from his position as an EMS coordinator, and that he was an appropriate candidate for rehabilitation assistance. The compensation judge approved the proposed retraining plan, concluding that the proposed retraining was reasonable and appropriate, to return the employee to an economic status as close as possible to that which he would have had without his work-related injuries.
The self-insured employer appeals.
The employer argues that the employee is not qualified for rehabilitation assistance since he worked post-injury at a position that paid more than his pre-injury wage, and left that position because he wanted to retain eligibility for PERA disability benefits. The employer contends that the compensation judge issued no direct finding or analysis concerning the employee=s eligibility for vocational rehabilitation, but concedes that this court can review that issue de novo. "[A] decision which rests upon the application of a statute or rule to essentially undisputed facts generally involves a question of law which [the Workers' Compensation Court of Appeals] may consider de novo." Krovchuk v. Koch Oil Refinery, 48 W.C.D. 607, 608 (W.C.C.A. 1993), summarily aff=d (Minn. June 3, 1993).
ARehabilitation is intended to restore the injured employee so the employee may return to a job related to the employee=s former employment or to a job in another work area which produces an economic status as close as possible to that the employee would have enjoyed without disability.@ Minn. Stat. ' 176.102, subd. 1(b). In order to be eligible for rehabilitation assistance, an injured employee must satisfy the requirements of Minn. R. 5220.0100, subp. 22, which provides as follows:
Subp. 22. Qualified employee. AQualified employee@ means an employee who, because of the effects of a work-related injury or disease, whether or not combined with the effects of a prior injury or disability:
A. is permanently precluded or is likely to be permanently precluded from engaging in the employee=s usual and customary occupation or from engaging in the job the employee held at the time of injury;
B. cannot reasonably be expected to return to suitable gainful employment with the date-of-injury employer; and
C. can reasonably be expected to return to suitable gainful employment through the provision of rehabilitation services, considering the treating physician=s opinion of the employee=s work ability.
Regarding the first factor listed in the rule, there is no dispute that the employee is permanently precluded from returning to his position with the employer as a firefighter/EMT. As to the third factor, the employee earlier demonstrated his ability and desire to return to work within his restrictions by working in the EMS coordinator position, and vocational evidence shows that the proposed retraining will provide the employee with requisite qualifications for positions in public safety administration.
The factor at issue in this case, from the employer=s perspective, is the second factor - - that the employee Acannot reasonably be expected to return to suitable gainful employment@ with his date-of-injury employer. The City of St. Paul argues that the employee cannot return to suitable gainful employment with the City solely because he voluntarily resigned, and therefore he should not be considered as qualified for rehabilitation services. We note that the employee qualified for the PERA benefits because of his disability, not because he resigned. In addition, whether an employee is employed, voluntarily terminates his employment, retires, or relocates does not terminate his or her entitlement to rehabilitation services. This court has specifically noted that there is Ano language in the statute which precludes [an employee from] retraining as a matter of law if the employee has returned to employment.@ Hallam v. Potlatch Corp., slip op., WC05-279 (W.C.C.A. Aug. 18, 2006); see also Kurrell v. National Con Rod, Inc., 32 W.C.D. 76, 322 N.W.2d 199 (Minn. 1982) (employee=s relocation was not a bar to rehabilitation services). The employee=s ability to return to work and the wage potential of that employment are factors considered by the compensation judge in determining whether retraining is reasonable. See Poole v. Farmstead Foods, 42 W.C.D. 970 (W.C.C.A. 1989).
Here, the compensation judge found that the employee had shown that he had not withdrawn from the labor market when he left his position with the employer. She concluded that
The employee=s testimony was credible that the economic status of his temporary light-duty position as EMS coordinator changed significantly with the changes in PERA. There was no job security in this non-union position and he would not be able to Abump@ back to other positions within the Fire Department due to his physical restrictions. The employee has shown that he did not withdraw from the labor market when he left employment with the City in June 2004. The employee has diligently sought to return to gainful employment. He has looked for work, filed applications and interviewed without success. He has shown that his work injuries, and resulting permanent restrictions, remain a substantial contributing cause of his inability to return to work. The employee did not withdraw from the labor market or retire and is an appropriate candidate for rehabilitation.
(Memo., p. 5.)
The employer also argues that retraining is not appropriate in this case. Whether retraining is appropriate is a question of fact for the compensation judge. Drouillard v. St. Mary=s Medical Center, 63 W.C. D. 671, 674 (W.C.C.A. 2003), citing Norby v. Arctic Enterprises, Inc., 305 Minn. 519, 232 N.W.2d 473, 28 W.C.D. 48 (1975). On appeal, the Workers' Compensation Court of Appeals must determine whether "the 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 (2006). Substantial evidence supports the findings if, in the context of the entire record, "they 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). Based on the record as a whole, including the medical records, rehabilitation records, vocational testimony and records and the employee=s testimony, which the compensation judge found to credible, we conclude that substantial evidence supports the compensation judge=s finding that the employee is qualified for rehabilitation services.
Retraining is a Aformal course of study in a school setting which is designed to train an employee to return to suitable gainful employment.@ Minn. Stat. ' 176.011, subd. 23. Retraining an injured worker in another occupation may be appropriate if the retraining Awill materially assist the employee in restoring his impaired capacity to earn a livelihood.@ Norby, 305 Minn. at 521, 232 N.W.2d at 775, 28 W.C.D. at 50. ARetraining is 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. 5220.0750, subp. 1. Pursuant to Minn. Stat. ' 176.102, subd. 1(b),
Rehabilitation is intended to restore the injured employee so the employee may return to a job related to the employee=s former employment or to a job in another work area which produces an economic status as close as possible to that the employee would have enjoyed without disability. Rehabilitation to a job with a higher economic status than would have occurred without disability is permitted if it can be demonstrated that this rehabilitation is necessary to increase the likelihood of reemployment. Economic status is to be measured not only by opportunity for immediate income but also by opportunity for future income.
AThe purpose of retraining is to return the employee to suitable gainful employment through a formal course of study.@ Minn. R. 5220.0750, subp. 1. ASuitable gainful employment@ is employment that is reasonably attainable and Aoffers an opportunity to restore the injured employee as soon as possible and as nearly as possible to employment which produces an economic status as close as possible to that which the employee would have enjoyed without disability.@ Minn. R. 5220.0100, subp. 34. An employee=s Aage, education, previous work history, interests, and skills@ are relevant in determining whether employment qualifies as suitable gainful employment. Id.
The employer argues that rehabilitation or retraining is not necessary here because the employee has sustained no loss of earning capacity as a substantial result of his injuries. The employer argues that because the employee=s wage that would be available to him, had he not resigned from his position as EMS coordinator, was more than his pre-injury wage, he is not qualified for rehabilitation assistance. The employer also argues that, as a matter of law, because the employee=s decision to terminate his employment was based on economic ramifications associated purely with the change in PERA law and was not causally related to his work injury, he has not suffered a loss of earning capacity. We disagree.
A loss of earning capacity is not synonymous with a loss of actual earnings. See Jerabek v. Teleprompter Corporation, 255 N.W.2d 377, 29 W.C.D. 612 (Minn. 1977); see also Siltman v. Partridge River, Inc., 523 N.W.2d 491, 51 W.C. D. 282 (Minn. 1994); Custer v. I.S.D. No. 2154, slip op., WC06-219 (W.C.C.A. Feb. 28, 2007). Even though the employee=s wage as an EMS coordinator was close to or may have exceeded his pre-injury wage, the employee=s injury-related restrictions have resulted in an overall loss of earning capacity. Those restrictions preclude him from returning to a career as a firefighter or paramedic and limit his future employment opportunities. To replace his lost earning capacity and to enable him to return to a career in the field of public safety administration, the employee requested retraining. Under these circumstances, the compensation judge reasonably concluded that the employee is entitled to retraining benefits to restore his lost earning capacity.
The compensation judge found that the proposed retraining plan was appropriate. When retraining is proposed, relevant considerations include: (1) the likelihood the employee will succeed in a formal course of study given his or her abilities and interests; (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 would have enjoyed without the disability. Poole v. Farmstead Foods, Inc., 42 W.C.D. 970 (W.C.C.A. 1989). The propriety of a proposed retraining plan is a fact issue for the compensation judge. See Anderson v. Metropolitan Mechanical Contractors, slip op. (W.C.C.A. Oct. 19, 1999).
As to the initial factor articulated in Poole, there is no dispute that the employee has the ability and interest to succeed in the proposed retraining program. He has demonstrated his ability and interest by completing his bachelor=s of science degree in the field of public safety administration, with a 3.917% grade point average, and by a 4.0% grade point average attained thus far in the master=s degree program he is currently pursuing.
In reference to the second factor outlined in the Poole decision, which entails a comparison of retraining to resuming work with the employer or engaging in other job search activities, we note that the employee has conducted a job search in public safety positions and has attended interviews for these positions, but has received no job offers. The importance of the requested retraining became evident during the employee=s job search. For example, he testified that often the postings for job openings would not list a master=s degree as being required, but that he later learned that only candidates with a master=s degree were interviewed. Information in the record, including the QRC=s labor market survey and a statement provided by the director for the St. Mary=s University public safety administration program, confirms the necessity of a master=s degree to qualify for a position in public safety administration.
Concerning the third Poole factor, whether retraining is likely to result in reasonably attainable employment, expert vocational testimony indicated that obtaining a master=s degree in public safety administration would open up more opportunities that those available to the employee solely with his experience and undergraduate degree. That vocational testimony also satisfied the issue addressed in the fourth Poole factor, that is, whether retraining is likely to produce an economic status as close as possible to that which the employee would have enjoyed without the disability. According to vocational testimony and related records, positions available to individuals with a master=s degree would pay significantly more and are more likely to return the employee to the economic status he would have enjoyed without the disability.
The employer also argues that the employee=s PERA disability income should be considered when determining what jobs are economically suitable for the employee. The employee=s QRC indicated that the employee would be capable of earning $600 to $800 per week without the retraining program. The employer argues that in view of the employee=s PERA income, and his earning capacity as estimated by his QRC, he currently is able to work at a position paying more than his pre-injury wage. We find, however, that there is no basis in the statute to consider disability income when determining an employee=s eligibility for retraining assistance. Substantial evidence supports the compensation judge=s finding that the proposed retraining program is reasonable and appropriate, and we affirm.
 Sarcoidosis is defined as a chronic, progressive, systemic granulomatous reticulosis (abnormal increase in cells) of unknown etiology, characterized by hard tubercles in almost any organ or tissue, including the skin, lungs, lymph nodes, liver, spleen, eyes, and small bones of the hands and feet. In the case of cardiac sarcoidosis, lesions can range from a few asymptomatic, microscopic granulomas to widespread infiltration of the myocardium by large masses of sarcoid tissue, often leading to arrhythmias, heart block, mitral regurgitation, or sudden death. Dorland=s Illustrated Medical Dictionary, 1565, 1599 (29th ed. 2000).
 See Findings and Order of Compensation Judge LeClair-Sommer, served and filed March 12, 2004. The compensation judge found that the employee had sustained a work-related injury as of December 27, 1999, and that his work activities as a firefighter for the City of St. Paul represented a substantial contributing factor in the development of his sarcoidosis. The parties stipulated that the employee earned a weekly wage on December 27, 1999, of $1,205.50.
 See Keaveny v. Henn. Co., slip op. (W.C.C.A. June 1, 2000); Mielzarek v. Source Tech. Corp., slip op. (W.C.C.A. March 6, 1997); see also Bulau v. Douglas Truck Lines, 45 W.C.D. 322 (W.C.C.A. 1991); Wessling v. Briggs Transportation, 38 W.C.D. 304, 305 (W.C.C.A. 1985); Emmons v. Control Data Corp., 34 W.C.D. 540, 541 (W.C.C.A. 1981).
 It is not clear from the record what the employee earned at the time he resigned on June 30, 2004. According to information provided by QRC Brezinski in documents accompanying his proposed retraining plan, the individual who held the position of EMS coordinator as of April 2006 earned an annual salary of $98,000, or an average weekly wage of $1,884.61.