JEFFREY P. HANSON, Employee/Appellant, v. SHAW/STEWART LUMBER CO., SELF-INSURED/MEADOWBROOK CLAIMS SERVS., Employer, and FRANK Y. WEI, M.D., FAIRVIEW HEALTH SERVS., BLUE CROSS BLUE SHIELD OF MINN., THERAPY PARTNERS, INC., and MINNESOTA DEP’T OF LABOR & INDUS./VRU, Intervenors.
WORKERS’ COMPENSATION COURT OF APPEALS
NOVEMBER 26, 2008
REHABILITATION - RETRAINING. Substantial evidence, including expert vocational opinion, supports the compensation judge’s finding that the employee does not need additional education to find a job at or above his date of injury wage, and that retraining is not necessary to return the employee to an economic status similar to that which the employee enjoyed prior to his injury.
Determined by: Johnson, C.J., Wilson, J., and Stofferahn, J.
Compensation Judge: Danny P. Kelly
Attorneys: Richard Riemer, Erstad & Riemer, Minneapolis, MN, for the Appellant. T. Michael Kilbury, Peterson, Logren & Kilbury, St. Paul, MN, for the Respondent.
THOMAS L. JOHNSON, Judge
The employee appeals from the compensation judge’s finding that the employee does not need additional education to find a job at or above his date of injury wage and that retraining is not necessary to return the employee to an economic status similar to that which the employee enjoyed prior to his personal injury. We affirm.
Jeffrey P. Hanson, the employee, began working in the architectural millwork department of Shaw/Stewart Lumber Company, the employer, in 2003, making custom cabinetry, doors, trim and molding. The employee’s weekly wage was $634.93. In June 2005, the employee served a claim petition alleging a Gillette-type injury to his low back on or about May 13, 2005, as a result of his work activities with the employer. The self-insured employer through Meadowbrook Claims Services, its claims administrator, denied liability.
Following a hearing in February 2008, the compensation judge found the employee sustained a personal injury while working for the employer, culminating on May 13, 2005; found the nature of the injury was a right L5-S1 disc herniation; and found the injury resulted in permanent restrictions on the employee’s work activities. These findings are unappealed.
The employee initially sought medical treatment at the Fairview Southdale Hospital emergency room on May 15, 2005, complaining of an exacerbation of chronic low back pain increasing over the past two days. The employee was given pain medication and referred to Dr. Frank Wei for further treatment. Dr. Wei diagnosed an acute exacerbation of chronic lumbar pain with radicular symptoms, and took the employee off work. An MRI scan on June 9, 2005, showed a right-sided disc extrusion at L5-S1 resulting in posterior displacement of the right S1 nerve root and degenerative disc disease at L4-5. In August 2005, Dr. Wei released the employee to return to light-duty work subject to restrictions. The employer was unable to provide a job for the employee within these restrictions.
On September 1, 2005, the employee met with Kristel Tvrdik, a qualified rehabilitation consultant (QRC) with the Minnesota Department of Labor and Industry, Vocational Rehabilitation Unit (VRU). Ms. Tvrdik contacted the employer to inquire about a return to work and was told the employee could not return to work unless he was released to work without restrictions. The QRC determined the employee was eligible for rehabilitation services. The employee told the QRC he was most interested in seeking a position within the construction field since most of his previous work history was within that area. He was also interested in exploring occupations in other fields, such as health care. A Job Placement Plan and Agreement was prepared that called for job search in the areas of office manager (construction and architecture), assistant surveyor, assistant project manager, lab technician assistant, assistant estimator, pharmacy technician, medical records clerk, and other areas agreed upon by the parties. The VRU provided the employee with job leads and supervised the employee’s job search. The employee rejected some job leads because of pay considerations, lack of interest or qualifications, or a determination that the job requirements exceeded his physical restrictions. The compensation judge, nonetheless, found the employee cooperated with rehabilitation from August 20, 2005, through April 20, 2006.
In May 2006, the employee advised the QRC that his long-term goal was to attend school to obtain either a bachelor’s degree or a certification in construction management. The employee performed no job search from April 21 through June 11, 2006, staying at home to care for his two small children.
In August 2006, Lynn Hjelmeland, a QRC, met with the employee and performed a vocational assessment. Ms. Hjelmeland administered vocational testing, reviewed the employee’s medical records, and obtained an employment history. Ms. Hjelmeland prepared a report and testified by deposition. Ms. Hjelmeland opined the employee made a diligent effort to find employment within the framework of the rehabilitation plan, but testified she did not agree with the job goals established by the VRU and that the employee was frustrated by the lack of success in his job search. Ms. Hjelmeland concluded the employee had excellent learning capabilities, good academic skills, and related work skills. Accordingly, Ms. Hjelmeland opined the employee would be an excellent candidate for the construction management program at the University of Minnesota. Ms. Hjelmeland testified the employee was provided job leads that paid 30 to 50 percent less than his pre-injury wage and the construction management program would allow him to find a job without wage loss. Ms. Hjelmeland opined retraining was a reasonable alternative for the employee in comparison to the potential for a return to work through direct job placement. Accordingly, she recommended the employee enroll in the construction management program.
The employee enrolled in the certification program in the construction management field at the University of Minnesota in the fall of 2006. The employee completed the fall term with a 3.8 GPA. The cost of the University of Minnesota program was $16,000.00 per year.
The employee suspended his job search from January to April 2007 because he was planning to relocate, with his family, to Denver, Colorado. In February, the employee’s rehabilitation plan was closed due to his impending move. During this time, the employee began researching educational programs in the Denver area equivalent to the one he was attending at the University of Minnesota. The employee identified two programs at the University of Colorado in Denver. One, a certificate program, required a bachelor’s degree and five years of applicable work experience. The alternative program was a master’s degree program which was one year in length but more expensive than the certificate program. The employee did not have five years of applicable work experience and was not qualified for admission to the certificate program.
The employee relocated to Denver, Colorado, in April 2007. He enrolled in the Burns School of Management at the University of Denver in the fall of 2007 in the master’s degree program in real estate and construction management. The employee successfully completed the fall 2007 term with a 3.32 GPA average. The cost of the University of Denver program was $44,000.00 for the year.
In January 2008, placement specialist Gary J. Mylnek performed a labor market survey in the Twin Cities area to assess employment available to the employee with his skills and abilities, within an earning range comparable to his pre-injury wage. In preparation for the survey, Mr. Mylnek met with Alden W. Bjorklund, a QRC retained by the self-insured employer to conduct a vocational assessment of the employee. Mr. Mylnek and Mr. Bjorklund identified eight vocational areas to explore for job openings including millwork, laminate counters, cabinet shops, fire/water damage businesses, design centers, moving companies, furniture and upholstery shops, and window coverings. Mr. Mylnek then compiled a list of potential employers in these employment areas and called them to determine what current or possible openings were available for someone with the employee’s background, education, and experience. Based upon 153 contacts, Mr. Mylnek found five current openings, one past opening and three employers wanting the employee’s resume. All of the positions paid from $15.00 to $20.00 per hour to start. Mr. Mylnek opined that with a diligent and concentrated job search in these employment areas, the employee would have an excellent chance of locating a position in the Twin Cities area at a wage comparable to that which he was earning at the time of his injury.
In February 2008, Mr. Mylnek conducted a labor market survey in Denver, Colorado, targeting the same vocational areas he explored in the Twin Cities in January. Mr. Mylnek made 38 direct contacts and conducted an internet search and found six current openings and two employers who wanted the employee’s resume. These positions paid from $10.00 to $20.00 per hour to start. In addition, Mr. Mylnek found evidence the employee could become an independent contractor in the furniture repair business which he testified would provide the employee with a wage close to his pre-injury wage. Mr. Mylnek again opined that with a diligent and concentrated job search in the specified vocational areas, the employee would have an excellent chance of locating employment using his experience, skills and education, that should result in a job at a wage comparable to his pre-injury wage.
Alden Bjorklund met with the employee in December 2007 and conducted a vocational assessment of the employee. Thereafter, Mr. Bjorklund met with Mr. Mylnek to review the results of his labor market survey, prepared a report and testified by deposition. Mr. Bjorklund stated that from the beginning of the rehabilitation process the employee focused on construction management, a field in which he had minimal experience or related education. Mr. Bjorklund testified the goals of the rehabilitation plan were misguided and the employee should have been directed toward employment consistent with his manufacturing experience and woodworking knowledge. Mr. Bjorklund opined that with the employee’s background and experience in manufacturing and production, particularly in the woodworking and millwork areas, there were a large number of companies in the Twin Cities area and the Denver, Colorado, area where jobs could be found as reflected in the reports of Mr. Mylnek. Mr. Bjorklund concluded the employee was currently employable without the need for retraining.
Ms. Hjelmeland re-interviewed the employee in December 2007 and reviewed Mr. Bjorklund’s vocational report. At that time, the employee was attending the Burns School at the University of Denver, Colorado. Ms. Hjelmeland opined direct job placement would not enable the employee to return to work at his pre-injury wage. Ms. Hjelmeland stated vocational training in construction management at the Burns School was appropriate to enable the employee to return to suitable employment.
The employee filed a claim petition seeking retraining benefits from September through December 2006 while attending the University of Minnesota and from September 2007 through February 2008 while attending the University of Denver. Following a hearing, the compensation judge found the vocational rehabilitation goals identified by the VRU were poorly developed and the rehabilitation plan was flawed because the plan concentrated on areas not within the employee’s experience or training. The judge further found that from the onset of the rehabilitation plan, the employee decided to focus on employment in the construction management field, an area in which he lacked experience and training. Finally, the compensation judge found the employee did not need additional education to find a job at or above his date of injury wage and found retraining was not necessary to return the employee to an economic status similar to that which the employee enjoyed prior to his personal injury. Accordingly, the compensation judge denied the employee’s request for retraining benefits. The employee appeals.
Retraining is defined as “a formal 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. Suitable gainful employment is employment “which is reasonably attainable and which offers 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. 5220.0l00, subp. 34. “Consideration shall be given to the employee's former employment and the employee's qualifications, including, but not limited to, the employee's age, education, previous work history, interests, and skills.” Id.; Minn. Stat. § 176.102, subd. 4(g). Areas of concern in evaluating an employee's entitlement to retraining thus include:
Poole v. Farmstead Foods, 42 W.C.D. 970, 978 (W.C.C.A. 1989). An award of retraining benefits is not automatic, but must be supported by competent evidence. Norby v. Artic Enters., Inc., 305 Minn. 519, 232 N.W.2d 773, 776, 28 W.C.D. 48 (1975).
The parties do not dispute the employee has the ability and interest to succeed in school, do not dispute the requested retraining would likely result in reasonably attainable employment, and do not dispute the retraining would likely produce an economic status as close as possible to that which the employee would have enjoyed without his disability. Rather, the issue in this case involves solely the reasonableness of retraining compared to a return to work through job placement activities.
While the reasonableness of retraining as compared to a return to work through job search is a factor in determining whether retraining is appropriate, it is not necessarily dispositive. Wilson v. Crown Cork & Seal, 503 N.W.2d 472, 49 W.C.D. 51 (Minn. 1993). Here, the compensation judge found the employee’s job search plan was flawed, but concluded its failure did not justify the claimed reasonableness of the retraining program. The compensation judge concluded, “a minimally adequate rehabilitation plan with professional supervision would have resulted in a successful job search returning the employee to work in an economic status as close as possible to that which the employee would have enjoyed without the disability.” (Mem. at 9.)
The employee argues the judge should have considered the rehabilitation services actually provided to the employee and not hypothetical rehabilitation services that could have or should have led to a different result. Minn. Stat. § 176.104 requires the employee be referred to the department’s Vocational Rehabilitation Unit where, as in this case, liability for the employee’s injury was initially denied. The employee asserts he relied upon the services provided by the VRU, cooperated with rehabilitation, and still was unsuccessful in finding employment. The employee notes that, by the time of Mr. Bjorklund’s report, he had been out of work for nearly three years. The employer’s apparent solution, the employee asserts, is to again begin job search and start another cycle of placement efforts. This approach, the employee contends, is not reasonable given that the employee cooperated with his rehabilitation plan and was unsuccessful. Further, the employee contends, the self-insured employer took the risk of denying the claim which deprived the employee of a minimally adequate rehabilitation plan. For these reasons, the employee contends it was reasonable for him to enter a retraining program.
The employee cooperated with rehabilitation but was unable to find suitable employment. We acknowledge, that under these facts, the employee’s enrollment in school may well have been a reasonable decision. Nevertheless, the issue on appeal is whether the compensation judge’s finding and order are “clearly erroneous and unsupported by substantial evidence in view of the entire records as submitted.” Minn. Stat. § 176.421, subd. 1. Ultimately, the question is whether the requested retraining is needed to assist the employee in restoring his impaired earning capacity. See, e.g., Varda v. Northwest Airlines Corp., 692 N.W.2d 440, 65 W.C.D. 92 (Minn. 2005); Wilson v. Crown Cork & Seal, 503 N.W.2d 472, 49 W.C.D. 51 (Minn. 1993); Norby v. Arctic Enters., Inc., 305 Minn. 519, 232 N.W.2d 773, 28 W.C.D. 48 (1975).
Mr. Mylnek conducted labor market surveys in the Twin Cities and Denver and, on the basis of the results of the surveys, opined the employee was employable at or near his pre-injury wage without retraining. Mr. Bjorklund also testified retraining was not necessary and opined the employee was currently employable at or near his pre-injury wage without retraining. Accordingly, there exists substantial evidence that supports the compensation judge’s finding that retraining is not necessary to return the employee to an economic status similar to that which he enjoyed prior to his personal injury. Under this court’s standard of review, this decision must, therefore, be affirmed.
 Gillette v. Harold, Inc., 257 Minn. 313, 101 N.W.2d 200, 21 W.C.D. 105 (1960).
 The employee’s eligibility for non-retraining temporary total disability benefits ended on May 23, 2006, when 90 days post-maximum medical improvement was reached.