CAROL TOLLEFSRUD, Employee, v. MINNESOTA DIVERSIFIED INDUS. and MINNESOTA NONPROFIT EMPLOYER’S WORKERS’ COMP. FUND/BERKLEY RISK ADM’RS CO., Employer-Insurer/Appellants.
WORKERS’ COMPENSATION COURT OF APPEALS
SEPTEMBER 22, 2009
REHABILITATION - RETRAINING. The compensation judge properly considered the factors enunciated in Poole v. Farmstead Foods, Inc., 42 W.C.D. 970 (W.C.C.A. 1989), in evaluating the proposed retraining plan, and substantial evidence supports the judge’s determination that retraining to obtain a bachelor of science degree in applied psychology: human services, to be completed in three years, was appropriate for the employee.
Determined by: Johnson, C.J., Wilson, J., and Stofferahn, J.
Compensation Judge: Gregory A. Bonovetz
Attorneys: Thomas R. Longfellow, Longfellow Law Office, St. Paul Park, MN, for the Respondent. Gina M. Uhrbom and Kris Huether, Brown & Carlson, Minneapolis, MN, for the Appellants.
THOMAS L. JOHNSON, Judge
The employer and insurer appeal from the compensation judge’s Findings and Order approving the employee’s proposed retraining plan leading to a bachelor of science degree in Applied Psychology: Human Services, to be completed in three years. We affirm.
Carol Tollefsrud, the employee, sustained a personal injury on February 13, 2001, while performing assembly work for the employer, Minnesota Diversified Industries, then insured by the Minnesota Nonprofit Employer’s Workers’ Compensation Fund administered by Berkley Risk Adminstrators Company. The employee began working for the employer, in Hibbing, Minnesota, in 1995, and at the time of the injury was earning $320.00 per week. The employee resides near Bear River in northeastern Minnesota, about 20 miles from Cook, Minnesota, and about 37 miles from Hibbing.
The employee received treatment from Dr. Patric Iammatteo who diagnosed an acute back sprain and released the employee to return to light duty work. The employee worked light-duty for the employer for the next two and one-half years while continuing to treat with Dr. Iammatteo. She experienced persistent difficulty performing the light duty work assigned by the employer and, in October 2003, requested rehabilitation assistance through Mesabi Rehabilitation Services. The employer and insurer objected, asserting the employee was capable of working without restrictions and was not a qualified employee. Discontinuance of rehabilitation services was allowed in an administrative decision filed February 19, 2004.
The employee experienced ongoing pain and discomfort and, in the summer of 2004, requested a leave of absence. The employee did not return to work following a one month leave that began July 22, 2004. Following her resignation, the employee was seen in November 2004 by Dr. Iammatteo who diagnosed chronic pain syndrome and clinical depression.
The employee filed various claims seeking rehabilitation assistance, temporary total disability benefits, and payment of medical benefits. In a Findings and Order served and filed April 3, 2006, Compensation Judge Bonovetz determined that the employee sustained a permanent injury, that the employee needed additional care and treatment and had not reached maximum medical improvement, and that the employee had ongoing limitations as a result of the work injury and was entitled to a rehabilitation consultation. This decision was not appealed.
The employee met with a qualified rehabilitation consultant (QRC) from Mesabi Rehabilitation Services in April 2006, who concluded the employee was eligible for rehabilitation assistance. The employee did not have current work restrictions, and in June 2006, her treating physician, Dr. IntVeld, referred the employee for a functional capacities evaluation (FCE). The doctor also recommended a chronic pain program evaluation. The FCE was performed on July 12 and 13, 2006. On August 7, 2006, Dr. IntVeld released the employee to begin a job search with sedentary work restrictions, that is, exerting up to 10 pounds of force occasionally, sitting most of the time, and walking or standing for brief periods of time. A job placement plan (JPPA) was completed on August 8, 2006, a placement specialist was assigned to work with the employee, and a formal job search was initiated.
In late October 2006, the employee was offered a cashier position with Up North Sundries in Chisholm, Minnesota. The position was part-time, one to two days a week, and paid $5.40 an hour. The employee attempted the job one day and resigned the following day, reporting she was required to stand the entire shift and do a considerable amount of bending. The employee continued to search for work with the assistance of her placement specialist and QRC.
On November 9, 2006, the employee was seen by Dr. Thomas Elliot at the Duluth Clinic. Dr. Elliot noted chronic low back and left lower extremity pain, and recommended a pain management program including physical therapy, psychotherapy, occupational therapy, patient education, development of a home exercise program, optimal body mechanics, and a care plan to deal with pain without drugs. Participation in the program was deferred pending authorization for the treatment.
On November 11, 2006, the employee was examined by Dr. Thomas Jetzer at the request of the employer and insurer. In a report dated November 14, 2006, Dr. Jetzer stated there were no objective findings on examination to support any ongoing orthopedic problem. In his opinion, the employee suffered a non-work-related, temporary low back strain on February 13, 2001. The doctor additionally noted long-standing depression with some anxiety and possible somatization. In a supplemental report, Dr. Jetzer opined the employee had reached maximum medical improvement (MMI) on July 12, 2006, the date of the FCE.
The employee entered the pain management program at the Duluth Clinic on January 16, 2007, on an outpatient basis, attending two days a week through March 15, 2007, and once a week beginning on March 27. The employee continued her job search during her involvement in the pain program, driving the 200 mile round trip to and from Duluth on the days she participated in the program and actively searching for employment within a 50 mile radius of her home on the days she was not in the program. The employee completed the 16 week pain program on May 18, 2007, with excellent results.
Based on Dr. Jetzer’s report, the employer and insurer denied liability for wage loss benefits and denied payment for the pain clinic program. Following a hearing on May 10, 2007, Compensation Judge Bonovetz issued a Findings and Order on June 27, 2007, finding the employee conducted a diligent search for employment and fully cooperated with return to work efforts from August 8, 2006, through the date of hearing. The judge found that except for a one-day trial of work at Up North Sundries -“a job which proved physically overtaxing” - the employee had been unsuccessful in finding suitable employment, and was entitled to temporary total disability benefits. The judge additionally found the pain clinic program was reasonable and necessary treatment, and that the employee had not reached MMI as of the date of hearing. The Findings and Order were not appealed.
The employee’s QRC conducted vocational testing in the early spring, and in July 2007, the QRC noted investigation of retraining had been authorized. She further recommended the employee attend computer classes offered through the Virginia, Minnesota, WorkForce Center, as she believed computer skills would be necessary for the employee in pursuing retraining. The employee began taking computer classes, one or two days a week, in August 2007.
On July 17, 2007, the employee attempted a part-time front desk position at the Hibbing Park Hotel, paying $6.50 an hour. The following day, the employee advised her QRC that she was required to stand throughout the shift and had resigned as she could not physically tolerate the job.
In a progress report dated September 22, 2007, the employee’s QRC reported the employee wished to explore retraining as a counselor. The QRC observed the employee and the placement specialist had done an exhaustive job search within her geographic search area without success. It was decided that while retraining was being pursued, the employee would conduct a self-directed job search. A Rehabilitation Plan Amendment (R-3) was prepared and signed by the QRC and the employee, and by the insurer’s claims representative on October 5, 2007. The plan recited that “a job search was conducted and this agency and Ms. Tollefsrud made 2,722 employer contacts. . . . Ms. Tollefsrud will begin a self-directed job search. This R-3 is developed to monitor [the employee’s] medical condition, her self-directed job search, [and] continue the investigation of retraining. (Pet. Ex. U.) The employee continued to search for work on her own in Virginia, Hibbing, Grand Rapids, Cook and surrounding communities, primarily through local newspaper ads and job postings at the Virginia and Hibbing WorkForce Centers. She continued to take computer classes at the Virginia WorkForce Center.
A Rehabilitation Plan Amendment was completed on December 14, 2007, and was forwarded to the insurer on January 24, 2008, proposing retraining through an Applied Psychology: Human Services bachelor of science degree program offered through the Arrowhead University Consortium and Bemidji State University, to be completed in three years. The employee would take required coursework through Hibbing Community College (HCC). Previous associate degree (AA) coursework completed at HCC would transfer and apply toward her degree requirements. The plan included vocational testing results and a labor market survey encompassing the job market within a 60 mile radius of the employee’s home as well as jobs located in Duluth, Minnesota.
Independent vocational evaluations were completed by Maureen Ziesulewicz on February 15 and August 11, 2008, at the request of the employer and insurer. Ms. Ziesulewicz recommended a return to formal job placement assistance, concluding there were jobs within the employee’s restrictions within 50 miles of the employee’s home that the employee could do. She opined the employee had job retention issues, as evidenced by her one day work attempts at Up North Sundries and the Hibbing Park Hotel, and would benefit from monitored volunteer work experience. She further recommended the employee complete her AA degree and focus on enhancing computer skills in combination with a renewed job search. Ms. Ziesulewicz reviewed the proposed retraining plan and concluded that while the employee would likely be able to handle the academic demands of the program, given her poor record of job retention, she was concerned about the employee’s ability to consistently attend classes. Further, in Ms. Ziesulewicz’s opinion, the labor survey did not support a conclusion that the employee would likely obtain employment in the proposed field and was not reasonable as the proposed retraining would keep the employee out of the job market until her late 50s.
The employer and insurer filed a notice of intention to discontinue benefits (NOID) on November 6, 2007, asserting the employee was at MMI following completion of the pain clinic program and that the employee had sabotaged her employment prospects by quitting two jobs after one day without first contacting her QRC to see if the job could be modified. Following an administrative hearing, a compensation judge issued a decision finding the employee was at MMI as of October 4, 2007, and there were no other reasonable grounds to justify a discontinuance of benefits. The judge ordered that temporary total disability benefits be reinstated and paid through 90-days post-MMI.
In February 2008, the employee interviewed for a part-time position with Home Instead Senior Care, with an hourly wage of $8.75. She had an interview with a potential client on February 25, 2008, but the family chose not to hire her. The QRC stated the employee had been hired by Home Instead, and if clients became available in her area, they would contact her.
On April 28, 2008, the employer denied approval for the retraining plan. The insurer had agreed to pay for a class at HCC so the employee could complete the one credit she needed to obtain an AA degree. The employee began attending class at HCC, three afternoons a week, in June. She completed the class and obtained her AA degree in July 2008. In January 2009, a Rehabilitation Plan Amendment was completed, reinstating a formal job search, focusing on employment that might be available to the employee due to completion of her AA degree. Formal job searching began again in February 2009.
A hearing was held before Judge Bonovetz on February 26, 2009. The judge found (1) the employee performed a very diligent search for employment and, fully cooperating with return to work efforts, did her utmost to attempt to find suitable, gainful employment; (2) the employee continued to make substantial efforts and availed herself of various tools to assist in her job search after entering into a self-directed job search in September 2007; and (3) both prior to and subsequent to the start of her self-directed job search the employee had numerous interviews and did in fact obtain employment, but the jobs obtained proved inappropriate in light of the employee’s physical restrictions. Addressing the proposed retraining plan, the judge concluded that: (1) the employee made a diligent search for work but job searching activities failed to result in suitable employment and that, as of the date of hearing, the retraining option was more viable; (2) the employee was likely to succeed in the formal retraining program; (3) although, given the nature of the employee’s viable employment area, the potential job openings after completion of retraining would be limited, there were likely employment opportunities both within 50 miles of the employee’s residence and in the Duluth area; (4) with completion of the retraining program, any employment obtained would equal or exceed the economic status the employee enjoyed as of the date of injury; and (5) with a bachelor of science degree, the employee would more likely have success in obtaining suitable gainful employment. The employer and insurer appeal.
The employer and insurer contend that in evaluating the proposed retraining plan the compensation judge failed to properly balance the factors enunciated in Poole v. Farmstead Foods, Inc., 42 W.C.D. 970 (W.C.C.A. 1989) and that the judge’s findings and order are clearly erroneous and unsupported by substantial evidence in the record. We are not persuaded.
The purpose of retraining is to return the injured employee to suitable gainful employment through a formal course of study in a school setting. Minn. Stat. § 176.011, subd. 23. Suitable gainful employment is employment that is reasonably attainable and that produces an economic status as close as possible to that which the employee would have enjoyed without the disability. Minn. Stat. § 176.102, subd. 1(b); Minn. R. 5220.0100, subp. 34 (2000). In evaluating proposed retraining, consideration is given to: (1) the likelihood the employee has the ability and interest to succeed in the proposed course of study; (2) whether retraining is likely to produce an economic status as close as possible to that which the employee enjoyed without the disability, (3) the reasonableness of retraining as compared to other job placement activities; and (4) whether retraining is likely to result in reasonably attainable employment. Id. at 978. Whether retraining is appropriate is a question of fact for the compensation judge. Norby v. Arctic Enters., 305 Minn. 519, 232 N.W.2d 773, 775, 28 W.C.D. 48 (1975).
1. Ability and interest to succeed in the proposed course of study. There is no dispute the employee is intellectually capable of completing the retraining program. The employer and insurer argue, however, the employee may not be physically capable of the regular commute to Hibbing or sitting for hours at a time in the classroom. The employee has demonstrated an ability to drive, on a regular basis, to take classes and search for work in Hibbing, an approximately 37 mile drive, and Virginia, a drive of about 50 miles, as well as driving to Duluth, about 100 miles from her home, to participate in the pain clinic. The employee further testified that she was not concerned about sitting in the classroom, stating she can sit for long stretches at a time and it was her experience that she can get up and move between classes. This is consistent with the employee’s sedentary restrictions.
The employer and insurer also assert the employee’s interest in the applied psychology field is questionable, maintaining the QRC failed to perform objective interest testing. There is no requirement that a formal interest inventory be conducted. The QRC testified it was her experience that she can obtain the same kind of information by sitting down and talking to her clients. The QRC believed the employee’s interest in counseling was genuine, and stated the employee had never waivered in her desire to find work that would benefit people as she was benefited by her participation in the pain clinic program. We cannot say, given the record in this case, that the compensation judge’s finding the employee is likely to succeed in the proposed retraining program is clearly erroneous and unsupported by substantial evidence and must, therefore, affirm.
2. Economic status. There is substantial evidence that employment in the applied psychology field would likely provide an economic status that would equal or exceed the economic status the employee enjoyed without the disability.
3. Reasonableness of retraining as compared with job placement activities. The appellants argue, relying on the report and testimony of their vocational expert, that renewed formal job searching focusing on the employee’s completed AA degree, augmented by enhanced computer and job retention skills, would move the employee back to work more quickly at less expense. The employer and insurer assert the employee failed to make a reasonably diligent search for work during her self-directed search, has not made an adequate job search since attaining her AA degree, and that she failed to retain or follow through with employment offers she obtained. They contend the proposed retraining is, accordingly, unreasonable.
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.” Minn. R. 5220.0750, subp. 1. While the reasonableness of retraining as compared to job placement efforts is an area of concern, “it is not necessarily dispositive,” and an injured worker is not necessarily required to exhaust all other possibilities before turning to retraining. Wilson v. Crown Cork & Seal, 503 N.W.2d 472, 49 W.C.D. 51 (Minn. 1973). Rather, the question is whether retraining is “necessary,” which does not mean “indispensable” but “should be found necessary if it appears that the retraining will materially assist the employee in restoring [her] impaired capacity to earn a livelihood.” Norby at 775, 28 W.C.D. at 50.
The record in this case supports the conclusion that a thorough search for employment was conducted within the employee’s geographic community for nearly two years prior to seeking approval for retraining. During her self-directed job search, the employee continued to participate in computer classes at the Virginia WorkForce Center, drove to Hibbing and Virginia to review the on-line Minnesota Works and bulletin board notices, reviewed employment ads in 10 local newspapers, responded to job leads provided by her QRC, and expanded her job search to include Grand Rapids, a town about 60 miles from her home. The QRC pointed out the employee had seven job interviews during her self-directed search. The QRC testified she believed the employee had exhausted the local job market, and did not believe further searching focusing on the employee’s AA degree was likely to achieve a better result. The QRC explained that the labor market on the Iron Range was shrinking and that a general AA degree does not necessarily open up job opportunities. Employers, she stated, are looking for more specialized degrees. The QRC further disagreed that the employee had problems following through or job retention issues. Instead, she testified, the employee has exhibited great fortitude and has a demonstrated ability to complete activities she has undertaken. There is, moreover, evidence that the jobs attempted by the employee at Up North Sundries and the Hibbing Park Hotel were not within the employee's sedentary restrictions, nor likely to restore the employee to her pre-injury economic status.
We acknowledge there is evidence to the contrary. However, 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. There is evidence to support the compensation judge’s findings that the employee made a diligent search for work, that job search activities have failed to return the employee to work, and that, as of the date of hearing, retraining appeared to be the more viable option. We, accordingly, affirm.
4. Likelihood the proposed retraining will result in reasonably attainable employment. The appellants contend the record supports only a finding that after completing retraining, the employee is unlikely to find employment with an applied psychology degree. They point out the employee will be in her late 50s when she completes the proposed three-year program, and assert the labor market survey prepared by the employee’s QRC failed to identify jobs that would be reasonably attainable by the employee within her geographic area upon completion of the program.
The employer and insurer maintain the labor market survey identified eight jobs, only one of which was within a 50 mile radius of the employee’s home, and that most of the jobs required experience which the employee would not have upon graduation. The QRC disagreed, pointing out that 12 jobs were identified in the labor market survey, six of which were in Duluth and six of which were within the geographic area in which the employee had previously searched. The QRC, in her report and testimony, noted there is a broad spectrum of jobs potentially available with an applied psychology degree, that employment of counselors is expected to grow in Minnesota, and that about 75% of the Bemidji State University applied psychology graduates had found employment in the field within one year of graduation. The employee testified that although she did not want to relocate, she is willing to extend job search with an applied psychology degree to include Duluth and would be willing to commute to Duluth if she got a job with the degree. The QRC further testified that, based on her interviews during the survey, employers are willing to hire individuals with a degree, even though lacking preferred experience, and pointed out that internships, required by the program, provide experience and often lead to employment or employment leads.
The compensation judge acknowledged that “by the very nature of the employee’s viable employment area the potential job openings after completion of retraining are limited,” but concluded that the proposed bachelor of science degree would likely materially assist the employee in obtaining suitable gainful employment. (Findings 12, 13.) While the evidence with respect to this factor is not particularly strong, we note there can be no guarantee that a retraining program will produce the desired results. Having carefully reviewed the record, we conclude the evidence is sufficient to support the compensation judge’s determination that the proposed retraining plan is appropriate for this employee in these circumstances, and we, accordingly, affirm.
 The appellants cite Varda v. Northwest Airlines Corp., 692 N.W.2d 440 (Minn. 2005), for the proposition that a cost analysis must be performed in evaluating a retraining proposal, asserting the cost of the plan must be weighed against other less expensive alternatives. While the cost of proposed retraining may be a consideration in evaluating the appropriateness of a plan, Varda involved a comparison of two proposed retraining plans. In Varda, the Supreme Court stated that “when the employer and its insurer propose an alternative training plan, the compensation judge is to compare the plans by evaluating each plan in light of the Poole factors, considering the duration of the programs and the relative costs and effectiveness of each in returning the employee to an economic status as close as possible to that which would have been enjoyed without the disability.” Id. at 444.