RICHARD T. KIMBALL Employee/Appellant, v. ST. MARY’S DULUTH CLINIC, SELF-INSURED/BERKLEY RISK ADM’RS, Employer.
WORKERS’ COMPENSATION COURT OF APPEALS
MAY 27, 2009
REHABILITATION - ECONOMIC SUITABILITY; REHABILITATION - RETRAINING. Where, following his work injury, the employee returned to work for the same employer and in the same job classification, where his post-injury job was, like his pre-injury job, a union position with fringe benefits, and where the employee was earning more at the time of hearing than he was earning on the date of injury, substantial evidence supported the compensation judge’s denial of the employee’s request for investigation of retraining.
Determined by: Wilson, J., Rykken, J., and Johnson, C. J.
Compensation Judge: Gregory A. Bonovetz
Attorneys: Russell J. LaCourse, Duluth, MN, for the Appellant. Jeffrey G. Carlson and Kris Huether, Brown & Carlson, Minneapolis, MN, for the Respondent.
DEBRA A. WILSON, Judge
The employee appeals from the compensation judge’s decision denying his request to amend his rehabilitation plan to provide for investigation of retraining. We affirm.
On May 22, 2000, the employee began working as an environmental service employee for St. Mary’s Duluth Clinic [the employer], picking up trash and cardboard throughout St. Mary’s hospital for disposal. He worked the afternoon shift, from 3:00 to 11:30 p.m., and it was a union position, represented by the International Union of Operating Engineers - Local 70. The work was relatively strenuous, requiring the employee to lift from 50 to 100 pounds, to bend on a frequent basis, and to push a cart filled with trash and cardboard. The employee testified that he enjoyed his job and that he considered it his career.
On August 24, 2004, the employee sustained a work-related injury to his low back while employed by the employer. His weekly wage on the date of this injury was $455.36, which included a shift differential.
Following the injury, the employee evidently continued in his usual job until he underwent a two-level lumbar fusion surgery, performed in June of 2006. By this time, he was receiving rehabilitation assistance from QRC Rhonda Ziemski. The QRC provided primarily medical management services until the employee was released to work at the end of December 2006. The employee’s pre-injury job was not consistent with the restrictions necessitated by his back condition, and, after his release to work, the employer provided the employee with temporary, “transitional” work on a part-time basis. The transitional job paid $12.71 per hour, which was apparently the hourly wage payable at that time to environmental service employees under the Operating Engineers union contract. The employer also paid the employee temporary partial disability benefits.
At the end of May 2007, the employee obtained another environmental service job with the employer, this time in the Duluth Clinic. This job, again on the afternoon shift, was full time and was consistent with the employee’s restrictions. While it was also a union position, a different union, United Steelworkers Union - Local 9460, represented environmental service workers employed at the Duluth Clinic, and a different contract governed the terms and conditions of the employee’s employment. As such, while the employee earned a shift differential and fringe benefits comparable to his pre-injury job, his hourly wage was lower than environmental service workers at St. Mary’s hospital were earning under the Operating Engineers union contract. Consequently, employer contributions to the employee’s retirement, which were based on a percentage of earnings, were apparently also lower. Because of these differences, the employee requested amendment of his rehabilitation plan to provide for investigation of retraining. The QRC declined, indicating that retraining was unnecessary given the small disparity between the employee’s pre-injury wage and his post-injury earnings.
The matter came on for hearing before a compensation judge on January 16, 2009, for consideration of the employee’s request to investigate retraining. The employee contended that investigation of retraining was warranted because he was earning less in his job as an environmental service employee at the Duluth Clinic than he would have been earning had he been able to continue in his pre-injury job as an environmental service employee at St. Mary’s. The employer contended that investigation of retraining was unnecessary because the employee’s current wage was higher than his wage on the date of injury, that the current job produced an economic status as close as possible to that the employee would have enjoyed without his disability, and that it was speculative to assume that environmental service workers at St. Mary’s would necessarily continue to have higher hourly earnings than similarly classified workers at the Duluth Clinic. Evidence included testimony from the employee and QRC Ziemski, pay records, rehabilitation records, and documents detailing terms of the Operating Engineers union contract and the United Steelworkers union contract.
In a decision issued on January 26, 2009, the compensation judge concluded that the employee’s current job was both physically and economically “suitable” and that the employee was no longer a “qualified employee” as defined by rehabilitation rules. The employee’s request to amend his rehabilitation plan to provide for investigation of retraining was therefore denied. 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).
At the time of his 2004 work injury, the employee was earning $455.36 per week, including a shift differential, in a union environmental service job that provided various fringe benefits. At the time of hearing, the employee was earning more, $476.00 per week, including a shift differential, in a union environmental service job that provided comparable fringe benefits. The employee argued, however, that investigation of retraining was nevertheless appropriate, despite his higher wage, because he is currently earning less than he would be earning had he been able to stay in his pre-injury job - - which, according to the record, now pays more than $600.00 per week. The compensation judge disagreed, concluding that the employee’s current job was both physically and economically suitable and that the employee was no longer entitled to rehabilitation services, pursuant to Minn. R. 5220.0100, subp. 22.
On appeal, the employee argues that the judge erred in focusing on the employee’s actual post injury earnings, rather than the employee’s loss of earning capacity and that, under applicable case law, the employee is entitled to investigation of retraining “as a matter of law.” We are not persuaded.
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.
Minn. Stat. § 176.102, subd. 1(b). Under rehabilitation rules, an injured worker is a “qualified employee” for purposes of eligibility for rehabilitation services if, because of the effects of the work injury, the worker
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.
Minn. R. 5220.0100, subd. 22. “Suitable gainful employment” is defined as “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. 5220.0100, subp. 34.
As the employee points out, there have been cases in which this court has affirmed a judge’s decision allowing retraining despite the fact that the injured employee was earning more at the time of hearing than he or she had been earning on the date of injury. See, e.g., Custer v. ISD No. 2154, No. WC06-219 (W.C.C.A. Feb. 28, 2007) (where the employee was precluded from working her second job due to the effects of her work injury, the judge’s award of retraining was supported by substantial evidence, even though the employee’s current earnings from one job exceeded her wage from both pre-injury jobs combined); see also Erickson v. City of St. Paul, No. WC06-258 (W.C.C.A. Apr. 16, 2007) (substantial evidence supported the compensation judge’s award of retraining to address the employee’s lost earning capacity, despite the fact that the employee had voluntarily resigned from a post-injury job that paid more than his pre-injury job had paid). At the same time, this court has affirmed a denial of additional rehabilitation services to an employee who was earning $.50 more an hour than she had earned pre-injury, on grounds that the post-injury job was economically suitable, despite the effects of inflation and the absence of a comparable benefit package. Holliday v. REM-MINN, Inc., slip op. (W.C.C.A. Mar. 14, 2003). What these and other rehabilitation cases illustrate is that, contrary to the employee’s argument, whether post-injury employment produces an economic status “as close as possible to that the employee would have enjoyed without disbility” is a question of fact, not law.
We are also unpersuaded by the employee’s contention that the compensation judge improperly focused too exclusively on the employee’s post-injury earnings when evaluating the employee’s claim. In cases considering the question of economic suitability under a previous version of the workers’ compensation act, the Minnesota Supreme Court observed that, “although a disparity between pre- and post-injury wages is not the sole criterion, it is a significant factor in determining the ‘suitability’ of post-injury employment.” Gackstetter v. Johnson/Midwest Coca Cola Bottling, 511 N.W.2d 439, 441, 50 W.C.D. 51, 53 (Minn. 1994). Furthermore, “whether there is reasonable parity between pre-injury wages and post-injury wages is . . . a factor of more than passing significance, . . . and its relative significance in any given factual setting is for the trier of fact.” Rogholt v. Knight Elec., 511 N.W.2d 442, 443, 50 W.C.D. 66, 67 (Minn. 1994). Other factors relevant to the suitability question include the employee’s age, education, interests, aptitudes, skills, whether the employee has participated in retraining, and the employee’s general work history. Gackstetter, 511 N.W.2d at 441, 50 W.C.D. at 53-54; Minn. R. 5223.0100, subp. 22. It is clear from his decision that the compensation judge considered those factors here.
The employee was working as an environmental service employee, a union job with related fringe benefits, on the date of his injury. He testified that he enjoyed the work and that he had considered it to be his career. Following the injury, the employee went back to work for the same employer, in the same job classification, under a union contract with comparable fringe benefits, and he is earning more than he was earning on the date of his injury. Under these circumstances, substantial evidence supports the compensation judge’s conclusion that the employee’s post-injury job produces “an economic status as close as possible[] to that the employee would have enjoyed without disability” and that the employee has not established that investigation of retraining is necessary or appropriate. We therefore affirm the judge’s decision in its entirety.
 This was evidently the second of two low back injuries occurring during the employee’s employment with the employer. The effects of the first injury are not at issue here.
QRC Ziemski began providing services in December of 2005.
 At the time of hearing, the employee was earning $10.41 plus a $1.50 per hour shift differential, or $11.91 per hour, in his job at Duluth Clinic, pursuant to the United Steelworkers union contract for environmental service workers at the clinic. At that time, environmental service workers at St. Mary’s hospital, governed by the Operating Engineers union contract, were earning $14.91 per hour plus a $1.20 shift differential, or $16.11 per hour.
 These cases dealt with economic suitability for purposes of determining whether the employee’s post-injury job met the requirements of Minn. Stat. 176.101, subd. 3e (repealed 1995), a determination dictating the level of benefits then payable for permanent partial disability. See Minn. Stat. § 176.101, subds. 3a, 3b, and 3p (repealed 1995). However, the definition of “suitable” employment was essentially the same under prior statute and rules as it is under the current statute and rules.
 As the supreme court has also noted, absolute precision is not required. Varda v. Northwest Airlines Corp., 692 N.W.2d 440, 65 W.C.D. 92 (Minn. 2005).