CHRISTINE A. HAMREN RINE, Employee/Appellant, v. CITY OF MINNETONKA, SELF-INSURED/BERKLEY RISK ADM’RS CO., Employer.
WORKERS’ COMPENSATION COURT OF APPEALS
OCTOBER 21, 2008
REHABILITATION - REHABILITATION PLAN. Substantial evidence supported the compensation judge’s denial of the employee’s request to amend her rehabilitation plan to explore retraining as a French interpreter, where direct job placement and job search called for in the plan had not been initiated and there was expert testimony that the employee’s best opportunity for employment was a full-time job search in vocational areas that would use her past work experiences.
Determined by: Johnson, C.J., Rykken, J., and Stofferahn, J.
Compensation Judge: Cheryl LeClair-Sommer
Attorneys: Kenneth N. Potts, Attorney at Law, Minnetonka, MN, for the Appellant. Thomas M. Peterson, League of Minnesota Cities, St. Paul, MN, for the Respondent.
THOMAS L. JOHNSON, Judge
The employee appeals the compensation judge’s denial of her request to amend her rehabilitation plan to include the exploration of retraining. We affirm.
Christine A. Hamren Rine, the employee, sustained a personal injury on May 24, 2001, in the nature of an atrial fibrillation condition. Following a hearing before a compensation judge, the City of Minnetonka, the self-insured employer, was found liable for the employee’s personal injury. The employee was awarded temporary total disability benefits and the self-insured employer was ordered to provide the employee with a rehabilitation consultation.
As a result of her personal injury, the employee was advised to avoid stress and physical exertion at work. Initially, the employee returned to work for the employer but the employer had no long term light-duty positions available. The employee’s last day with the employer was January 5, 2002. Thereafter, the employee withdrew from the active labor market for five years.
In February 2007, Kerri Schwandt, a qualified rehabilitation consultant (QRC), met with the employee for a rehabilitation consultation. The QRC reported the employee received a bachelor of arts from St. Olaf College in 1975. Thereafter, the employee worked as a police dispatcher from 1975 through 1978. In 1978, the employee became a police officer for the City of Edina. In 1997, the employee began working as a police officer for the City of Minnetonka where she remained employed until January 2002. The QRC concluded the employee was eligible for rehabilitation services. In March 2007, the employee, the QRC, and a representative of the self-insured’s claims administrator agreed to a rehabilitation plan that called for job seeking skills training and direct job placement. The QRC then instructed the employee to commence an exploration of possible vocations using the internet, networking, and informational interviewing to gather information about potential employment. In an April 2007 vocational report, Ms. Schwandt noted the employee had completed her vocational exploration and had chosen employment as a French interpreter as an initial vocational target. In a June 2007 report, Ms. Schwandt stated she would attempt to negotiate with the parties an amendment to the rehabilitation plan. Ultimately, a rehabilitation plan amendment was drafted which stated the employee had decided to pursue employment as a French interpreter. The amendment called for an assessment of the employee’s French language capabilities, vocational counseling services, vocational testing, a labor market survey to gather information about employability for French interpreters, and an exploration of retraining. The employee and the QRC signed the amendment in October 2007. The claims administrator refused to sign the amendment insisting the employee conduct a job search before the plan was amended.
The employee filed a Rehabilitation Request seeking approval of the rehabilitation plan amendment. The self-insured employer objected to the employee’s request and the matter was heard before a compensation judge at the Office of Administrative Hearings. In a Findings and Order, the compensation judge denied the employee’s request to change the rehabilitation plan because the evidence failed to establish the objectives of the original rehabilitation plan were not likely to be achieved. The employee appeals.
It is undisputed the employee has restrictions and cannot return to work her job as a police officer, a job in which she earned over $50,000 a year. The employee has not worked since January 2002, and her entire work history has been in law enforcement. Ms. Schwandt testified the employee’s bachelor of arts degree in psychology is of little benefit in the current job market and the employee has no computer skills. She further opined an exploration of retraining was appropriate. Accordingly, the employee contends her rehabilitation plan should be amended to permit exploration of retraining as a French interpreter. The self-insured employer argues the employee did not comply with the rehabilitation plan because she did not search for work. Further, the respondent argues there is no evidence the existing rehabilitation plan cannot be successfully completed. Accordingly, the respondent asserts the compensation judge’s decision should be affirmed.
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 the disability.” Minn. Stat. § 176.102, subd. 1(b). Subdivision 8 of the statute provides:
Plan modification. Upon request to the commissioner or compensation judge by the employer, insurer, or employee, or upon commissioner’s own request, the plan may be suspended, terminated, or altered upon a showing of good cause, including:
(a) a physical impairment that does not allow the employee to pursue the rehabilitation plan;
(b) the employee’s performance level indicates the plan will not be successfully completed;
(c) an employee does not cooperate with a plan;
(d) that the plan or its administration is substantially inadequate to achieve the rehabilitation plan objectives;
(e) that the employee is not likely to benefit from further rehabilitation services.
An employee may request a change in a rehabilitation plan once because the employee feels ill-suited for the type of work for which rehabilitation is being provided. If the rehabilitation plan includes retraining, this request must be made within 90 days of the beginning of the retraining program.
Minn. R. 5220.0750 provides that retraining “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.” In Seglem v. Northland Foods, 53 W.C.D. 46 (W.C.C.A. 1995), this court affirmed a compensation judge’s denial of the employee’s request to investigate retraining options, concluding the request was premature pending additional formal job placement assistance. The affirmance was based on testimony of a QRC that the employee had transferable skills and that it would be premature, pending additional job placement efforts, to conclude the employee would be unable to find a job paying close to her pre-injury wage. In Makela v. Spancrete Midwest, slip op. (W.C.C.A. Mar. 25, 1999), this court affirmed a compensation judge’s approval of an amendment to the employee’s rehabilitation plan to include an exploration of retraining. In that case, the affirmance was based upon the testimony of a QRC that the employee’s return to work with the employer had not been successful, and that in the six years since the employee’s injury, the employee was nowhere close to an economic status as close as possible to that which the employee would have enjoyed without the disability.
Maureen Ziezulewicz, a qualified rehabilitation consultant, was retained by the respondent as an expert vocational witness. Ms. Ziezulewicz reviewed the reports of Ms. Schwandt, the employee’s medical records, prepared a report and testified at the hearing. Ms. Ziezulewicz opined the employee possessed transferrable job skills which she acquired through her education and her job experiences. Considering the employee’s work restriction of avoiding stress and physical exertion, Ms. Ziezulewicz opined there were jobs available to the employee in the areas of dispatcher, customer service work, community education, protective services and various clerk and administrative-type positions. Ms. Ziezulewicz concluded the employee’s best opportunity for employment was to perform a full-time job search in the areas which would use her past work experience. The compensation judge found the testimony of Ms. Ziezulewicz reasonable and accepted her opinions. Although Ms. Schwandt disagreed, it is the compensation judge’s function, as the trier of fact, to select between conflicting expert opinion. See Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985).
The issue in this case was whether the employee established good cause, as required by Minn. Stat. § 176.012, subd. 8, to amend the rehabilitation plan. The employee’s rehabilitation plan called for job seeking skills training and direct job placement. To date, the employee has not performed any job search beyond informational interviews regarding foreign language interpretation services. Apparently, no Job Placement Plan and Agreement was prepared and there is no evidence the employee was provided with job seeking skills training or job leads. Admittedly, the employee had a high weekly wage which, in the opinion of Ms. Schwandt, may be difficult to replace. But, based upon the record before us, there simply is no evidence the current plan is substantially inadequate to achieve the rehabilitation plan objectives. Rather, Ms. Ziezulewicz concluded the employee’s best opportunity for employment was a full-time job search in areas which would use her past work experiences. Based upon this evidence it was reasonable for the compensation judge to conclude that amending the rehabilitation plan was premature. Substantial evidence supports the compensation judge’s decision and that decision is affirmed.
 The compensation judge’s Findings and Order were affirmed by this court by decision dated January 7, 2007.