JAMES E. LARDANI, Employee, v. LARDANI STUCCO and AUTO-OWNER’S INS. GROUP, Employer-Insurer/Appellants.
WORKERS’ COMPENSATION COURT OF APPEALS
OCTOBER 18, 2010
REHABILITATION - RETRAINING. Substantial evidence supports the determination of the special master that the retraining plan was appropriate for the employee.
Determined by: Stofferahn, J., Johnson, C.J., and Wilson, J.
Special Master: Peter J. Pustorino
Attorneys: Raymond R. Peterson, McCoy, Peterson & Jorstad, Minneapolis, MN, for the Respondent. Laura L. Myslis and Brock P. Alton, Gislason & Hunter, Minneapolis, MN, for the Appellants.
DAVID A. STOFFERAHN, Judge
The employer and insurer appeal from the decision of the special master approving the employee’s requested retraining plan. We affirm.
Jerome Lardani sustained an injury to his low back on July 31, 2006, while he was working as a union plasterer and estimator for his family’s business, Lardani Stucco. The employee later had fusion surgery as the result of his injury and the parties agree he is unable to return to his pre-injury employment.
The employee was born on October 31, 1963, and graduated from high school in St. Paul in 1981. After high school, he attended the Minnesota School of Business and obtained an associate’s degree in electronics. He worked in that field for about a year and then went to work in the family business. He worked there until his injury in 2006. The parties stipulated that the employee’s weekly wage on the date of injury was $1,160.00. That figure does not include benefits which he received as a union member, including pension as well as medical and dental insurance.
Qualified Rehabilitation Consultant [QRC] James Reinhardt was assigned by the workers’ compensation insurer to begin working with the employee in 2006. Under Mr. Reinhardt’s direction and with the assistance of a placement vendor, the employee engaged in job search. The employee was successful in finding a job and began working at the Cottage Grove store of Home Depot in September 2007.
The employee began working for Home Depot as a pro accountant sales associate earning $17.50 an hour. His job generally was to work with contractors who might need help in planning a project and then to sell to those contractors the materials needed for the project. His job at the Cottage Grove store ended in 2008 when the store closed. The employee transferred to a Home Depot store in Inver Grove Heights in December 2008 performing the same job duties. Since then the employee has become a supervisor, in charge of two employees in pro account sales.
The wage records from Home Depot from December 22, 2008, through February 14, 2010, were placed in evidence. The records show that the employee’s weekly wage during that time varied between $594.84 and $877.09 with the average weekly wage being about $700.00. Medical coverage is available at Home Depot but he described the cost as being too expensive and he has opted for medical coverage through his wife’s employment.
The employee testified that there was little likelihood of a promotion at Home Depot. The next step up from his present position would be into store management and the employee stated he does not have the financial or management training or education to do those jobs.
The QRC prepared a retraining plan that is the center of the dispute in this case. The plan calls for training the employee in construction project management at Dunwoody Institute. The training program is for a period of ninety-two weeks. The employee testified that a project manager is responsible for overseeing the work on a construction project including scheduling subcontractors to make sure the project is progressing on schedule. The retraining plan identified an anticipated weekly wage after the program as being between $869.00 to $1,000.00. The QRC also provided a retraining rationale as part of the proposed plan. The QRC structured the rationale following what he referred to as the Poole factors.
In considering the reasonableness of retraining versus job search or other return to work activities, the QRC noted that the employee had been successful in his job search efforts but still had an ongoing wage loss of more than $400 per week. The QRC concluded from vocational tests taken by the employee that he was capable of completing the proposed program. In reviewing the likelihood that retraining would result in employment, the QRC referred to conflicting information. The labor market survey done in February 2009 found a poor labor market in construction and the QRC concluded that on the basis of the survey, the likelihood of finding employment as a project manager was slim. On the other hand, Dunwoody identified an 82% placement rate for graduates of this program in 2008.
The employer and insurer opposed the retraining plan and presented the report and testimony of David Berdahl. Mr. Berdahl did not disagree with the QRC’s opinion that the employee was capable of completing the proposed program. Mr. Berdahl concluded, however, that there was little likelihood of successful employment after retraining because of the depressed labor market in construction. He also concluded that because of the depressed labor market the employee would not be able to reach the weekly wage suggested in the retraining plan. He stated that starting wages in construction project management would not be any better than the earning available to the employee as an assistant store manager or store manager at Home Depot. Mr. Berdahl’s opinion was that the employee should remain at Home Depot where Mr. Berdahl believed there might be an opportunity for advancement at some point in time.
The employee’s claim was heard by Special Master Peter Pustorino on March 10, 2010. In his findings and order of March 19, 2010, the Special Master awarded the employee’s requested retraining. The employer and insurer appeal.
In Poole, the court stated that in considering a retraining claim, “areas of concern include: 1) reasonableness of retraining as compared to returning to work with the employer or other job placement activities, 2) the likelihood that the employee has the ability and interest to succeed in a formal course of study in a school, 3) whether retraining is likely to result in reasonably attainable employment, and 4) whether retraining is likely to produce an economic status as close as possible to that which the employee would have enjoyed without disability.” 42 W.C.D. at 978.
There are a number of issues in this matter which are not in dispute. The employee’s work injury to his low back has resulted in restrictions which preclude a return to work with his pre-injury employer or in his pre-injury occupation. The employee has engaged in a diligent job search resulting in employment and further job search is not likely to reduce the continuing economic impact of his injury. The employee has the ability to successfully complete the proposed retraining program. The employee is physically able to perform the duties of a construction project manager.
The primary dispute in this matter is whether the proposed retraining program is likely to result in employment. At the hearing and again on appeal, the employer and insurer have argued that, “because of the current state of the economy, retraining which aims at employment in the construction industry is inappropriate.” The employer and insurer contend that the better course of action for the employee would be to remain at Home Depot. They refer to the opinion of their vocational witness that a manager at Home Depot earns as much as a beginning construction project manager because wages for that position have also been adversely affected by the economy. The employer and insurer claim that the special master failed to properly apply the Poole factors and erred in his award of retraining.
This court has found application of the Poole factors to be a convenient way to analyze retraining cases. See Rowbottom v. LTV Steel Mining, slip op. (W.C.C.A. Jan. 27, 2003); Yvonne v. Super One Foods, 63 W.C.D. 303 (W.C.C.A. 2006); Erickson v. City of St. Paul, 67 W.C.D. 516 (W.C.C.A. 2007). It must be noted, however, that in Poole and in subsequent cases, this court has said that factors in retraining cases include the factors identified in Poole. The Poole factors are not meant to be exclusive in considering whether or not a retraining program is appropriate.
The Poole factor that the employer and insurer argue has not been met is whether the proposed retraining plan is likely to result in reasonably attainable employment. There is conflicting evidence on this point. The special master acknowledged that the present labor market is difficult. However, the employee’s retraining program runs for ninety-two weeks and whether the labor market in 2012 will be as dismal as it is at present is simply speculation. Dunwoody, where the program would be conducted, reported a placement rate of 82% for its 2008 graduates, although placement in 2009 was not expected to be as good. The QRC testified that between 2006 to 2016 there was an anticipated increase of 10.7% in jobs in construction management and supervision according to government statistics. The special master also pointed out that because of the contacts the employee and his family had in the construction industry, the employee was likely to be in a better position to find employment after retraining than the average graduate.
The special master also considered the lack of a viable alternative for the employee if the retraining plan was disapproved. The only alternative presented was for the employee to stay at Home Depot and wait for possible promotion. There was no evidence, however, as to the likelihood of any promotion. The employee, who had worked at Home Depot for more than two years stated that he did not have the qualifications for a management position there. Mr. Berdahl admitted in his testimony that the poor economy had also adversely affected Home Depot. The employee’s wage records show that there have been a number of weeks when he did not work a full schedule. The employee testified that this was because there was not always enough work.
The special master also noted that the employee has continued to work at a substantial wage loss. In contrast to the law in effect at the time of Poole, the employee has a limited entitlement to temporary partial disability. In his memorandum, the special master stated “the court is persuaded that waiting for ‘some point in time’ might be appropriate for a twenty-something employee who had few, if any, responsibilities, but for a forty-six year old worker with a career ending injury, ongoing restrictions, and significant family responsibilities, lengthy waits to see what the future holds would not meet the needs of this injured worker at all.” We agree.
The decision of the special master is affirmed.
 Poole v. Farmstead Foods, Inc., 42 W.C.D. 970 (W.C.C.A. 1989).