DANIEL GEHRT, Employee/Appellant, v. GENETIPORC USA and ATLANTIC MUT. INS. CO./RISK ENTER. MGMT., Employer-Insurer.
WORKERS’ COMPENSATION COURT OF APPEALS
MAY 7, 2008
REHABILITATION - RETRAINING. Where the record reasonably supported the judge’s conclusion that additional placement efforts might result in higher-paying work, and where factors such as the employee’s past expressed reluctance to consider work compensated by commission called into question a plan calling for retraining in sales and marketing, it was not unreasonable for the judge to deny the retraining request.
Determined by: Wilson, J., Pederson, J., and Rykken, J.
Compensation Judge: Jennifer Patterson
Attorneys: Deanna M. McCashin, Schoep & McCashin, Alexandria, MN, for the Appellant. Kyle T. Kustermann, Erstad & Riemer, Bloomington, MN, for the Respondents.
DEBRA A. WILSON, Judge
The employee appeals from the compensation judge’s denial of his request for retraining in sales and marketing. We affirm.
The employee is a high school graduate who has a two-year technical degree in meat cutting and sausage making. He worked as a meat cutter at a locker plant and then at a slaughtering plant for two years before developing Guillain Barre syndrome and encephalitis, which he testified “laid [him] up for two or three years.” Medical records indicate that the employee may have some resulting residual weakness and atrophy in the muscles of his hands, but there is no evidence that doctors have imposed any specific restrictions on the employee’s activities as a result of his hand condition.
After recovering from the Guillain Barre syndrome and encephalitis, the employee worked at a gas station for about five years, drove a truck for a gravel company for three years, and drove a truck and performed common labor for an asphalt sealing company. Some of this work was seasonal, and, during the off-season, the employee worked part time as a bartender.
The employee commenced employment with Genetiporc USA [the employer] in April of 2001, cleaning hog trailers using high pressure hoses. About a year later, he was promoted to a position as a working supervisor, overseeing 10 to 12 other employees. On November 8, 2003, and March 10, 2004, he sustained work-related injuries to his low back, and he was unable to return to his job following the second injury. His weekly wage at the employer for workers’ compensation purposes was $592.72.
The employee underwent two-level lumbar fusion surgery, to treat his work injuries, on February 23, 2005. A few months later, he was released to work with significant restrictions, and he began receiving rehabilitation assistance from QRC Ione Tollefson. Job placement services were instituted in July 2005 by placement specialist Brent Larson.
The employee lives in Herman, Minnesota, a town of about 300 located 22 miles from Morris, Minnesota, and about 45 miles from both Alexandria and Fergus Falls, Minnesota. Placement efforts were directed primarily toward finding the employee employment in that general labor market. He is permanently restricted to light work as a result of his low back condition, needing to change positions every 30 minutes, to avoid carrying and lifting more than 20 pounds at waist level, to avoid lifting more than 5 pounds from the floor, and to avoid pushing and pulling more than 20 pounds.
In January of 2006, QRC Tollefson recommended exploration of retraining. Shortly thereafter, on January 30, 2006, the employee began full-time work as a counter salesperson at an auto parts business called Sturdevant’s. This job paid $7.90 per hour, and, because the employee was working at a substantial wage loss, the QRC indicated that rehabilitation assistance should continue.
In April of 2006, the employee sustained injuries in a nonwork-related automobile accident. His blood alcohol content at the time of the accident was above the legal driving limit, and his driver’s license was suspended for thirty days. He was off work, due to injuries sustained in the motor vehicle accident, for about six months. When he was finally able to work again, his job at Sturdevant’s had been filled.
On September 18, 2006, the parties attended an administrative conference to resolve the issues of the employer and insurer’s liability for mileage reimbursement related to the employee’s attendance at Adult Basic Education [ABE] classes in Alexandria and the employer and insurer’s liability for the cost of a labor market survey. According to a letter dated September 22, 2006, an agreement was reached at the conference, whereby the employer and insurer agreed to pay for the disputed mileage and for a labor market survey, to include the City of St. Cloud, and the employee in turn agreed to look for work in St. Cloud. The employee and the QRC were also to discuss additional cities to which the employee would be willing to relocate, with the idea that those cities could, if the employer and insurer agreed, be added to the labor market survey. Despite his agreement, the employee never sought employment in St. Cloud. QRC Tollefson subsequently testified that the placement specialist had identified no suitable jobs for the employee in that city.
The employee began part-time work as a bartender at the Herman Liquor Store in October of 2006, earning $7.10 an hour. In December of 2006, he took another part-time job, this time as a cook at an American Legion Club in Wheaton, Minnesota. The employee’s pay from both jobs combined remained substantially less than he had earned in his job with the employer. After he left his job at the American Legion over a dispute with the manager there, he obtained yet another part-time job at a convenience store in Herman, earning $8.50 per hour. Between his jobs at the Herman Liquor store and the convenience store, the employee worked 35 to 40 hours a week, again, however, at a substantial wage loss. As a result, placement efforts continued.
The employee completed ABE classes in January of 2007, improving his reading and math skills substantially enough to pass the entrance examination at Alexandria Technical College. He was initially interested in pursuing a degree in business administration but later settled on the field of sales and marketing, and QRC Tollefson prepared a retraining plan calling for the employee to obtain a two-year degree in that field at Alexandria Technical College. The employee hopes to use the degree to obtain a job in business-to-business sales, otherwise known as “outside” sales, in the food industry.
Rehabilitation records indicate that the Alexandria Technical College sales and marketing program has a 100% job placement rate. A labor market survey conducted by Mr. Larson disclosed seven job openings out of the twelve employers contacted about outside sales jobs. Five of these openings were in the food industry. According to college and labor market survey sources, salary estimates range from $28,000 to $42,000 per year, depending in part on bonuses and commissions. Relocation would likely be necessary, but the employee has expressed a willingness to relocate for suitable employment, with or without retraining.
The employer and insurer objected to the proposed retraining plan, and the matter came on for hearing before a compensation judge on October 18, 2007. At that time, the parties agreed that “the work the employee seeks to be retrained for would be physically appropriate and within his restrictions” and that a market exists for graduates of the sales and marketing program. Issues listed by the compensation judge were whether the employee had made a diligent search for economically suitable work, whether the proposed retraining program was academically appropriate, and whether sales and marketing jobs would be economically suitable. Evidence included the testimony of the employee and QRC Tollefson, employee’s rehabilitation records and certain medical records, and the deposition testimony and report of David Berdahl, the employer and insurer’s vocational expert.
In a decision issued on November 19, 2007, the compensation judge concluded that the proposed retraining plan was academically suitable. However, the judge also concluded that the employee had not exhausted job placement possibilities and that the proposed retraining plan was not appropriate given the employee’s narrow focus on outside food sales and his past reluctance to consider work paid in whole or in part by commission. The judge therefore denied the employee’s request for approval of the proposed retraining plan. The employee appeals.
STANDARD OF REVIEW
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 (2008). 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). 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, findings of fact should not be disturbed, even though the reviewing court might disagree with them, “unless they are clearly erroneous in the sense that they are manifestly contrary to the weight of evidence or not reasonably supported by the evidence as a whole.” Northern States Power Co. v. Lyon Food Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975).
Areas of concern in evaluating a proposed retraining plan include (1) the reasonableness of retraining as compared to job placement activities; (2) the likelihood of the employee succeeding in a formal course of study given the employee’s ability and interests; (3) the likelihood that retraining would result in reasonably attainable employment; and (4) the likelihood that retraining would produce an economic status as close as possible to that which the employee would have enjoyed without the disability. Poole v. Farmstead Foods, 42 W.C.D. 970, 978 (W.C.C.A. 1989). Whether retraining is appropriate is generally 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).
In the present case, the compensation judge concluded that the proposed retraining was “academically suitable” for the employee, that is, that it was likely that the employee would succeed in completing the sales and marketing program specified by the plan, and the judge’s conclusion to this effect is undisputed on appeal. The judge also concluded, however, that the reasonableness of retraining, as opposed to job placement efforts, had not been established. In this regard, the judge focused on the testimony of Mr. Berdahl regarding other employment options and the nature of the employee’s job search so far, finding as follows:
The facts that: the employee made very few job contacts per week in 2006 and 2007; did not follow up on all leads given to him by his placement vendor; his alcohol-related accident in 2006 rules out driving jobs that he was interested in seeking out in 2005 because the alcohol offense prevents obtaining a commercial license for a number of years in Minnesota; the employee’s expressed reluctance to look for factory jobs based on hand limitations even though it is not clear what his hand limitations are (and he was working at a job that involved grasping power hoses with a substantial amount of force when he was hurt, showing that his diminished grip strength does not rule out all jobs that exist in factories requiring hand strength), and the opinion of QRC Berdahl that there are a number of kinds of jobs including those in the hospitality and tourism industries that the employee has not applied for or looked into, together support the legal conclusion that the employee has not exhausted possibilities for finding work within his physical restrictions likely either to restore his date-of-injury earnings or to come closer to restoring those earnings than his present two part-time jobs, particularly if he actually looks for work in St. Cloud as he agreed to do in September 2006.
In her memorandum, the judge further discussed the employee’s hand condition and alleged need for hand-related restrictions; the employee’s failure to follow up on some job leads supplied by Mr. Larson, particularly in sales; evidence concerning the employee’s child care responsibilities (and possible unavailability for second or third shift jobs); the employee’s failure to look for work in St. Cloud, despite his agreement to do so; and the effects of the employee’s alcohol-related driver’s license suspension. In conclusion, the judge determined that, especially given the employee’s failure to look for work in St. Cloud, a much larger labor market, the employee had “overly restricted his job search.”
On appeal, the employee makes numerous arguments challenging the judge’s analysis and conclusions on this issue, contending, for example, that the judge erred in relying on Mr. Berdahl’s opinion regarding the employee’s employability, in that Mr. Berdahl had used the wrong lifting restrictions when evaluating potential employment options for the employee. We are not persuaded. In his deposition, Mr. Berdahl acknowledged that he had used a general 20-pound lifting restriction for the purposes of his labor market analysis, when the employee can actually lift from waist level and carry 20 pounds but can only lift 5 pounds from floor level. However, the employee did not submit any evidence to establish that this arguable difference in applicable restrictions would have changed Mr. Berdahl’s opinion as to the employee’s employability at higher-paying work, particularly in the St. Cloud labor market.
The employee also contends that the judge erred by stating, in reference to the employee’s hand condition, that “an employee’s testimony alone is not sufficient to support a legal finding on the nature and extent of restrictions arising out of either a work-related condition or a non-work-related condition.” It is true that, pursuant to case law, a compensation judge may rely on an employee’s testimony, alone, in determining whether an employee is physically capable of performing any given job. See, e.g., Brening v. Roto-Press, Inc., 306 Minn. 562, 563, 237 N.W.2d 383, 385, 28 W.C.D. 225, 226 (1975). However, viewed as a whole, the judge’s decision reflects that the judge in fact accepted evidence indicating that the employee may have restrictions related to his hand condition; she was merely unconvinced, absent medical opinion, as to the precise nature and extent of those restrictions. We cannot say that the judge erred in this regard, especially given the extremely minimal medical evidence concerning the employee’s hand condition, and we would note that even the employee’s own testimony does not establish just what the employee can and cannot do with his hands. The judge may well have questioned the effectiveness of placement efforts rendered without clear understanding of the employee’s physical restrictions and capabilities.
The employee also maintains that the compensation judge erred by focusing on the employee’s failure to look for work in St. Cloud, when the employer and insurer had failed or neglected to pay mileage expenses in a timely fashion, causing financial hardship for the employee, and QRC Tollefson testified that there was no economically suitable work for the employee in that city in any event. However, whether mileage reimbursement delays justified the employee’s failure to look for employment in St. Cloud, in breach of his agreement to do so, was for the compensation judge to weigh. Moreover, the compensation judge was entitled to accept the opinion of Mr. Berdahl, regarding job opportunities in St. Cloud, over the opinion of Ms. Tollefson. See Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985). The remainder of the employee’s arguments regarding job search and employment options are similarly unpersuasive and provide inadequate grounds to reverse the judge’s conclusion that the employee had not established the reasonableness of retraining as opposed to further job placement efforts.
The judge also concluded that, “[a]s supported by the opinion of Vocational Expert Berdahl, the employee’s reluctance to consider a sales job when earnings are based primarily or exclusively on commissions from sales makes the two-year marketing and sales course at Alexandria Technical College vocationally inappropriate for him because it rules out too many sales jobs.” In her memorandum, the judge further explained her conclusion on this issue as follows:
As supported by the testimony of Vocational Expert Berdahl, better paying positions tend to involve compensation primarily, or exclusively, by commissions on sales. QRC Tollefson on cross-examination also agreed that many of the better paying sales jobs involve compensation primarily or exclusively by commission.
When working with Placement Specialist Larson, the employee repeatedly declined to consider jobs where his earnings would be based on commission from sales because he was uncomfortable working for a commission. He also ruled out selling cars and furniture, in part because he does not know a lot about the details of cars and furniture and was not interested in learning the specifics, and in part because people who sell cars and furnitures are often compensated primarily or exclusively by commissions on sales. The employee testified he would rather sell on the business-to-business level than to ultimate consumers, ruling out many sales positions. . . . Although Dr. Lynn did not express an opinion on the length of time the employee can drive before taking a break to stretch and change position, he did suggest that the employee sit no more than 30 minutes before changing postures and stretching. Whether or not Dr. Lynn would restrict the employee from a job that involved long hours of driving even with opportunities to take a break every 30 minutes, cannot be determined from the evidence of record.
The employee’s reluctance to work [in] a job where he would be compensated primarily or exclusively by commissions on sales, and the opinion of Vocational Expert Berdahl, support the conclusion that a two-year training program in marketing and sales is not vocationally appropriate for the employee. The employee’s preference for not selling to consumers, but rather at the business-to-business level, limits the number of sales positions available to him. His preference for working in the food or food products area further limits the number of sales positions potentially available to him. By limiting his career goal to commercial sales of food and food products only, the employee overly restricts his opportunities to work in the sales and marketing field, with or without the two-year degree.
The employee’s numerous arguments to the contrary notwithstanding, we cannot disagree with the judge’s analysis: the propriety of a $40,000 retraining plan in sales seems particularly questionable for an employee who has repeatedly expressed reluctance to consider employment compensated by commission, especially when that employee is only interested in a very limited category of sales jobs. We are aware that the employee testified that he is now less concerned about compensation by commission, but the compensation judge was entitled to evaluate that testimony in light of the employee’s past concerns.
It is clear to us that the compensation judge considered the evidence in great detail and that she based her ultimate denial of retraining on numerous factors. While we may have some concerns about some portions of the compensation judge’s rationale, we are satisfied that the record as a whole reasonably supports the judge’s decision. We therefore affirm the judge’s denial of the proposed retraining plan.
 The employee testified that he was paid $13.19 per hour and worked regular overtime.
 Before taking the ABE classes, the employee’s test scores were too low to qualify for degree programs at that school.
 The employee’s hand condition and resulting restrictions, if any, were relevant to the judge because the employee’s QRC and placement vendor apparently ruled out certain factory jobs on that basis.
 And we note in this regard that, according to rehabilitation records, some of the delay may have been occasioned by the placement vendor’s failure to submit the employee’s mileage claim to the insurer.
 The employee argues that, because the parties stipulated that sales and marketing jobs would be physically appropriate, the judge erred in speculating that some sales and marketing positions might not be. We are not persuaded that the parties’ agreement should be construed as meaning that all potential sales jobs would be physically suitable.
 For example, the judge’s comments about the employee’s alcohol-related driver’s license suspension seem misplaced.