KEITH KOPPEN, Employee, v. KNOWLAN’S SUPER MARKET and ARGONAUT GREAT CENT. INS. CO., Employer-Insurer/Appellants.
WORKERS’ COMPENSATION COURT OF APPEALS
FEBRUARY 15, 2011
REHABILITATION - RETRAINING, REHABILITATION - ECONOMIC SUITABILITY. Where the four-year retraining plan awarded by the compensation judge would better realize the goal of returning the employee as closely as possible to his pre-injury economic status than an alternate two-year program, the compensation judge’s award is affirmed.
Determined by: Stofferahn, J., Pederson, J., and Johnson, C.J.
Compensation Judge: Cheryl LeClair-Sommer
Attorneys: David R. Vail, Soderberg & Vail, Minneapolis, MN, for the Respondent. T. Michael Kilbury, Peterson, Logren & Kilbury, St. Paul, MN, for the Appellants.
DAVID A. STOFFERAHN, Judge
The employer and insurer appeal from the compensation judge’s award of the employee’s requested four-year retraining plan. We affirm.
Keith Koppen sustained a work injury to his left knee on November 9, 2007. At the time, he was employed by Knowlan’s Super Market in building facilities management at a weekly wage of $906.87. The employee started working for Knowlan’s in 1984 as a bag boy when he was still in high school and worked in a number of positions for Knowlan’s from then until his injury in 2007. The employee was born June 5, 1968, and he has a high school education.
The employee was treated for his work injury by Dr. James Gannon. Dr. Gannon performed a meniscectomy and chondroplasty in January 2008 and, when the employee did not improve, an “opening wedge proximal tibial osteotomy” in August 2008. A functional capacities evaluation was done at Dr. Gannon’s direction in April 2009 that restricted the employee to work with no standing or walking for more than 1 or 2 hours in an 8 hour day.
After his first surgery, the employee returned to work at Knowlan’s for a time in a light-duty job. After his second surgery, the employee was advised that Knowlan’s had no work for him within his restrictions. The employee then began job search with a placement vendor under the direction of his qualified rehabilitation consultant [QRC], Michael Stern.
The employee found part-time work as a cashier at Holiday Station Stores in October 2009. He worked there for about six months and then located full-time work as a driver for Otto Container Management in May 2010. His job there was to pick up and deliver garbage containers to customers by using a truck with a lifting tailgate. The job paid $11.00 an hour.
The employee’s QRC prepared a retraining plan in January 2010 that is the subject of the current litigation. The plan calls for retraining the employee to be a mechanical engineer through a four-year program at Century College and the University of Minnesota. The employee would obtain a Bachelor of Science degree as a result of the program and Mr. Stern projected a starting wage after completion between $984.19 and $1,284.00.
The employer and insurer objected to the retraining plan and had the employee evaluated by Alden Bjorklund, a QRC. Mr. Bjorklund concluded the proposed retraining plan was not necessary to return the employee to his pre-injury economic status. He recommended a two-year program which would provide the employee with an Associate in Applied Science (A.A.S.) degree and which would qualify him for a number of positions as an engineering technician.
The employee’s claim was heard by Compensation Judge Cheryl LeClair-Sommer on June 17, 2010. The employee, Mr. Stern, and Mr. Bjorklund testified at the hearing. In her Findings and Order of July 14, 2010, the compensation judge approved the QRC’s retraining plan. The employer and insurer appeal.
In reviewing retraining disputes, this court has generally applied what are referred to as the Poole factors:
1. the reasonableness of retraining compared to job placement activities;
2. the likelihood the employee has the interest and ability to succeed in the proposed course of study;
3. whether retraining is likely to produce an economic status as close as possible to that the employee would have enjoyed without the disability; and
4. whether the retraining is likely to result in reasonably attainable employment.
In the present case, the parties agree that retraining, rather than additional job search, is the most appropriate vocational rehabilitation for the employee. They also agree that the employee has the ability and interest to succeed in either the four-year program advanced by the QRC or the two-year program recommended by the independent vocational expert [IVE], Mr. Bjorklund. Further, the employer and insurer do not contend that the plan proposed by the QRC will not return the employee “as close as possible” to his pre-injury economic status. Minn. Stat. § 176.102, subd. 1(b). Rather, they argue that the two-year plan will do equally as well at reaching that goal as the four-year plan, and that, as a result, the shorter and therefore cheaper two-year plan is mandated by Varda v. Northwest Airlines Corp., 692 N.W.2d 440, 65 W.C.D. 92 (Minn. 2005).
In Varda, the employee was seeking approval of a four-year retraining program that would lead to a bachelor’s degree in nursing. The compensation judge awarded the program but was reversed by this court in favor of a two-year program costing significantly less which would also qualify the employee to be a registered nurse with a wage that exceeded her pre-injury wage. On review, the supreme court stated, “Because both retraining programs are appropriate and reasonable, the deciding factor in determining which program is necessary becomes the cost.” 692 N.W.2d at 445, 65 W.C.D. at 99.
The parties in this matter agreed the employee’s wage on the date of injury was $906.87. In addition, the employee had an extensive benefit package including a vehicle allowance, family health and dental insurance, life insurance, a 401K plan, and a union pension. In his report, Mr. Bjorklund stated that, “economic status does not just refer to wages alone. It also takes into consideration the benefit package a worker has in addition to wage.” Mr. Bjorklund stated that these benefits make up 30% of a workers’ compensation package so that the employee’s economic status in the present case would be about $1,215.00 per week.
Mr. Bjorklund’s opinion was that the two-year engineering tech program would be as successful as the QRC’s proposed plan in returning the employee as closely as possible to this economic status. In his report, he identified seven specific positions, such as a mechanical engineering technician or an industrial engineering technician that would be obtainable with a two-year degree. The median wage for those jobs ranged from $23.85 to $26.95 an hour. This would calculate to $954.00 to $1,078.00 per week.
The median wage, according to Mr. Bjorklund, is also referred to as the 50th percentile wage, as 50% of workers earn more than that amount and 50% earn less. He testified that using this level was appropriate for the employee because of the employee’s “previously developed work-related skills” and he anticipated the employee would reach the median wage in two or three years.
Mr. Stern disagreed with that assessment. He noted the employee would be entering a new occupation requiring new skills and his opinion was that entry level or 10th percentile wages should be used in comparing the engineering tech jobs with entry level wages for a mechanical engineer. Further, he stated that median level wages were not reached before three to five years of work and also noted that half of workers never exceeded the median wage, regardless of the time spent in the occupation. The compensation noted that Mr. Bjorklund’s report identified the entry level wages for engineering tech jobs to be from $17.00 to $21.34 an hour or $704.00 to $854.00 per week.
The compensation judge adopted the opinions of the QRC over those of the IVE. It is the role of the compensation judge to consider competing expert opinions and a decision based upon a well-founded expert opinion will generally be affirmed by this court. Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985); Wegener v. LTV Steel Mining Co., slip op. (W.C.C.A. Aug. 6, 2002). Based on the QRC’s opinion, the compensation judge determined that the two-year program would not return the employee to the economic status he had at the time of the work injury. Substantial evidence supports that determination. Since the two plans considered here are not equivalent in the primary goal of restoring the employee’s pre-injury economic status, Varda does not apply.
On appeal, the employer and insurer raise the fourth Poole factor as well, the availability of employment after retraining. Both vocational experts acknowledged the current difficult employment market and the problems in speculating as to the labor market at the end of a two-year program or a four-year program. Mr. Stern conducted a labor market survey, found almost no jobs at present, but stated that employers anticipated available employment for engineers in a four to five year time frame. He also pointed to surveys from the state and federal governments which anticipated a growth in mechanical engineering jobs. Mr. Bjorklund did no labor market survey but spoke to a number of instructors who told him of current openings for an engineering tech. Mr. Bjorklund also referred to similar surveys which showed a growth in these occupations as well. The compensation judge determined that both programs were likely to result in reasonably attainable employment. Substantial evidence supports that determination as well.
We conclude the compensation judge’s decision is in accord with the principles of Poole and Varda. The decision is affirmed.
 Poole v. Farmstead Foods, 42 W.C.D. 970 (W.C.C.A. 1989).