KRYSTI M. TSCHUDI, Employee, v. LAKEWOOD ENTM’T and ACUITY GROUP, Employer-Insurer/Appellants.
WORKERS’ COMPENSATION COURT OF APPEALS
OCTOBER 19, 2011
REHABILITATION - RETRAINING. Substantial evidence did not support the compensation judge’s award of retraining, given the lack of evidence establishing that the employee could expect to find employment after retraining that would restore her as close as possible to the economic status the employee would have enjoyed but for her disability.
Affirmed in part and reversed in part.
Determined by: Wilson, J., Milun, C.J., and Stofferahn, J.
Compensation Judge: Penny Johnson
Attorneys: John P. Bailey, Bailey Law Office, Bemidji, MN, for the Respondent. Christine L. Tuft and Matthew C. Kopp, Arthur, Chapman, Kettering, Smetak & Pikala, Minneapolis, MN, for the Appellants.
DEBRA A. WILSON, Judge
The employer and insurer appeal from the judge’s awards of temporary partial, temporary total, and permanent partial disability benefits and from the judge’s approval of a retraining plan calling for the employee to complete an undergraduate degree in social work. We affirm in part and reverse in part.
The employee sustained a work-related injury to her low back on April 22, 2004, while employed as a store manager for a Blockbuster store in Bemidji, Minnesota, owned by Lakewood Entertainment [the employer]. The employee’s weekly wage on the date of injury was $480. When seen at North Country Regional Hospital on the date of injury, the employee was diagnosed with a back strain, and a CT scan revealed bulging at the L4-5 and L5-S1 levels, without disc herniation. The employee treated frequently with Chiropractic Sport and Spine Rehabilitation from April 22, 2004, through July 26, 2004. She was also seen twice at Meritcare Clinic Bemidji.
On May 10, 2004, Dr. Todd Wickmann, D.C., reported that the employee’s condition had stabilized, and the employee returned to work. She was involved in a motor vehicle accident later that day and then worked part time through May 30, 2004, before returning to work full time, without any wage loss.
The employee was terminated from her job with the employer as of November 9, 2004, and she subsequently received unemployment benefits until May of 2005. During this period, on March 21, 2005, she treated at Meritcare for “subacute chronic back pain.” Physical therapy was prescribed at that time and commenced on April 4, 2005. The employee began treating with Dr. Peter Eriksson at Meritcare on April 6, 2005. He prescribed medication and restricted the employee to light to medium work, with a lifting limit of 30 pounds, frequent lifting and carrying limited to 20 pounds, and directions to stretch and change positions frequently.
On April 27, 2005, the employee began working with a QRC, assigned to her by the insurer. At that time, the employee reported that she had been offered a sales position with Combined Insurance and was to begin training on May 9, 2005. Given that information, the QRC chose not to initiate placement services at that time. The initial R-2 Rehabilitation Plan indicated that the QRC would provide medical management and follow the employee’s new position to “assure successful.”
On May 18, 2005, Dr. Eriksson made the employee’s restrictions permanent. He also noted that the employee had reached maximum medical improvement [MMI] on that date and that he did not find any permanent partial impairment. He encouraged the employee to continue with a regular exercise, strengthening, and flexibility program.
The employee apparently worked full time for Combined Insurance, which required a great deal of driving, and, on August 19, 2005, she notified her QRC that her job was not working out and requested rehabilitation services. A few weeks later, on September 8, 2005, the employee treated again with Dr. Eriksson, who discussed sending the employee back to physical therapy but noted that the employee was “confidant that she knows the appropriate stretching and exercise program.” The employee met with the QRC and a placement specialist on September 13, 2005, at which time a Job Placement Plan and Agreement [JPPA] was completed, calling for a part-time job search in conjunction with the employee’s Combined Insurance job. On October 10, 2005, the employee requested that her job search be expanded to include the Park Rapids area.
On October 31, 2005, the employee received a job offer from JC Penney in Bemidji. She accepted and began work on November 21, 2005, as a part-time payroll auditor, working 30 hours per week at $8.15 per hour. The employee told her QRC that she planned to continue her sales job with Combined Insurance on a part-time basis. Job placement assistance was put on hold, and the employee apparently worked both jobs until some time in January of 2006, when she discontinued the Combined Insurance job because her travel expenses exceeded her income. By March of 2006, the employee was earning $8.40 per hour at JC Penney.
In June of 2006, the insurer asked the QRC to reinstitute job placement services. On October 2, 2006, the employee went to full-time work with JC Penney, earning $8.55 per hour. The next day, October 3, 2006, the QRC emailed the insurance adjuster, indicating that the employee was earning $138 per week less than her weekly wage on the date of injury but that, given the Bemidji labor market, the QRC could not anticipate the employee obtaining a significantly higher wage. When the QRC spoke with the employee on October 19, 2006, the employee indicated that she was happy with her work and did not wish to pursue further employment or training. The QRC therefore recommended discontinuing rehabilitation services.
The employee was examined by independent medical examiner Dr. Robert Brown, at the request of the employer and insurer, on October 26, 2006. At that time, the employee reported that she continued to experience low back soreness, which was aggravated by both sitting and standing, and that she was not receiving medical treatment but did perform daily home exercises. It was Dr. Brown’s opinion that the employee had sustained a temporary lumbar strain as a result of the work injury and that that strain had resolved by July 26, 2004. Dr. Brown also opined that the employee did not need restrictions or treatment after July 26, 2004, and that the employee had no permanent partial disability related to the work injury.
The QRC notified the employee’s attorney on January 22, 2007, that she planned to close the employee’s file, and he did not object. A Notice of Rehabilitation Plan Closure was filed on January 23, 2007, indicating that the employer and insurer had agreed to close the plan.
Sometime between January of 2007 and December of 2010, the employee’s hours at JC Penney were reduced to 35 hours per week, but her hourly wage increased to approximately $9.80 per hour.
On December 15, 2008, Douglas Brown, a vocational consultant, prepared a retraining plan at the request of the employee’s attorney. Mr. Brown indicated that it was “to be used solely as a tool to help [the employee] establish her vocational future.” The retraining plan called for the employee to complete a bachelor’s degree in social work at Bemidji State University. In the plan Mr. Brown acknowledged, however, that a master’s degree in social work (MSW) was required for many jobs in the field. Mr. Brown did not perform a labor market survey.
On March 2, 2009, the employee filed a claim petition seeking temporary total, temporary partial, and permanent partial disability benefits, and retraining.
The employee was seen by Dr. Larry Stember, D.C., at the request of her attorney, on August 3, 2010. Dr. Stember diagnosed “acute traumatic lumbosacral injury resulting in L4-L5 and L5-S1 disk bulge” as a result of the April 22, 2004, work injury. He rated the employee as having a 10% permanent partial disability pursuant to Minn. R. 5223.0390, subp. 3. He also advised that the employee should observe restrictions on sitting, standing, bending, stooping, squatting, lifting, and carrying.
On September 13, 2010, Mr. Brown prepared an “updated retraining plan,” based on information provided by the employee’s attorney and an interview with the employee. Given Dr. Stember’s report, Mr. Brown concluded that the employee was capable of only sedentary work, and he concluded also that the social work program at Bemidji State would provide the employee “with the skills she needs to be able to return to the labor market safely.” According to the updated report, the length of training was expected to be “5 years-minimum.”
The claim petition proceeded to hearing, and in a findings and order filed on January 18, 2011, the compensation judge found that the employee’s low back injury did not resolve as of July 26, 2004; that the employee was entitled to temporary total disability benefits from April 27, 2005, through May 8, 2005, reduced by any unemployment benefit payment for the same period, temporary partial disability benefits from May 9, 2005, through June 9, 2009, permanent partial disability benefits for a 3.5% impairment, and the requested retraining program, with the employer and insurer liable for the reasonable costs of the program for up to three years. The employer and insurer appeal.
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 (2010). 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).
1. Permanent vs. Temporary Injury
The employer and insurer contend that substantial evidence does not support the judge’s finding that the employee’s work injury had not resolved by July 26, 2004. We are not persuaded.
The employee testified that she experienced ongoing symptoms from the work injury through the date of hearing. The judge found her testimony to be credible, and there is no evidence before us to discredit that testimony.
Independent medical examiner Dr. Brown opined in October of 2006 that the employee had completely recovered from her injury by July 26, 2004. However, the employee received medical treatment for that injury in 2005, including treatment from Dr. Peter Eriksson, who restricted the employee’s work activities on April 6, 2005, and made those restrictions permanent on May 18, 2005.
A trier of fact’s choice between experts whose testimony conflicts is usually upheld unless the facts assumed by the expert in rendering his opinion are not supported by the evidence. Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985). The employee’s testimony and the records of Dr. Eriksson provide substantial evidence to support the judge’s finding that the work injury had not resolved by July 26, 2004.
The employer and insurer also contend that an award of benefits for permanent partial disability is not appropriate or supported by substantial evidence. They rely on the records of Dr. Eriksson and the opinions of Dr. Brown to support their contention. Again, we are not persuaded.
The judge did not award the 10% rated by Dr. Stember but instead awarded 3.5% for lumbar pain syndrome with symptoms of pain or stiffness in the lumbar spine, substantiated by persistent loss of range of motion. See Minn. R. 5223.0390, subp. 3.B. According to Dr. Eriksson’s office note of September 8, 2005, the employee showed difficulty flexing and bending at the waist; Dr. Lyle Erickson, D.C., in April of 2006, recorded loss of range of motion; Dr. Brown in October of 2006 found mild restriction of range of motion of the lumbar spine; and Dr. Stember in 2010 found muscle spasm and loss of range of motion. These medical records provide substantial evidence to support the judge’s award of benefits for permanent partial disability.
2. Temporary Total and Temporary Partial Disability Benefits
The employer and insurer contend that temporary total disability benefits are not payable for the period from April 27, 2005, through May 9, 2005, because the employee was working during that period or, in the alternative, because the employee did not make a reasonable and diligent search for work during that period. We are not persuaded.
During their first meeting on April 27, 2005, the employee informed the QRC that she would begin training with Combined Insurance on May 9, 2005. The QRC did not recommend job placement activities at that time but instead indicated that she would monitor the employee’s progress with that job. As such, no job search during this short period was required. The compensation judge did not err in awarding temporary total disability benefits from April 27, 2005, to May 9, 2005, and we affirm that award.
The employer and insurer also contend that the judge’s award of 225 weeks of temporary partial disability benefits beginning May 9, 2005, was not supported by the evidence, because the employee had no restrictions on her ability to work. As indicated earlier in this decision, it was reasonable for the judge to accept the opinions of the doctors that restricted the employee’s work activities over the opinion of Dr. Brown. We have affirmed the findings that the employee’s work injury resulted in permanent partial disability and that the employee has ongoing work restrictions.
The employer and insurer also contend that the employee’s work with Combined Insurance and JC Penney was not reflective of her earning capacity, because she worked for the employer for six months after the work injury at no wage loss. This argument has no merit. A job that is no longer available to an employee is of little relevance in determining entitlement to wage loss benefits. See Tottenham v. Eaton Char-Lynn Corp., 43 W.C.D. 71 (W.C.C.A. 1990).
Finally, the employer and insurer contend that any loss of earnings is not related to the work injury but rather to the employee’s failure to make a reasonable and diligent search for work. This argument is also unpersuasive.
We note initially that, when an employee has a QRC, or a rehabilitation plan is in effect, the employee’s eligibility for wage loss benefits is less dependent on the employee’s job search efforts than on the employee’s cooperation with rehabilitation. Schreiner v. Alexander Constr. Co., 48 W.C.D. 469 (W.C.C.A. 1993). In the present case, the employee was working with a QRC, and a rehabilitation plan was in effect from May 9, 2005, through January 22, 2007. While the employee admittedly did not maintain the job logs required by the rehabilitation plans, the employee testified that she initially sent out cover letters and resumes for job leads provided by the placement vendor, later calling employers to inquire as to specific qualifications and physical requirements of the jobs before applying. The record also establishes that the employee asked to have her area of job search expanded to include locations other than Bemidji, she found job leads on her own and applied for some of those jobs, she succeeded in increasing her hours and her hourly wage with J.C. Penney without assistance, and she has continued to look for other work while employed by J.C. Penney. Given this evidence, it is reasonable to conclude that the employee cooperated with rehabilitation efforts, that she was not intentionally underemployed, and that she is entitled to temporary partial disability benefits. We therefore affirm that award.
The employer and insurer contend that substantial evidence does not establish that retraining is necessary to allow the employee to attain an income status as close as possible to her pre-injury wage. The employer and insurer also argue that the retraining plan fails to satisfy the requirements of the applicable rules and that the employee has not established entitlement to retraining under the criteria set out in Poole v. Farmstead Foods, 42 W.C.D. 970 (W.C.C.A. 1989). We agree that substantial evidence does not support the judge’s award.
Minn. R. 5220.0750, subp. 2, specifies that a proposed retraining plan must “substantially” contain certain specific information. In the present case, in contravention of the rule, the proposed retraining plan was not submitted on the required form; it did not include a rehabilitation goal; and it did not provide detailed information about the proposed formal course of study, including the titles of classes to be taken or the course’s length in weeks. The plan also failed to list starting and completion dates, a summary comparative analysis of other rehabilitation alternatives, information documenting the likelihood that the proposed retraining plan would result in the employee’s return to suitable gainful employment, a copy of the published course syllabus, reports of vocational testing, or a recent labor market survey. In fact, almost none of the requirements of the rule were substantially satisfied.
The employee contends that, pursuant to Reitan v. Kurt Manufacturing, Co., slip op. (W.C.C.A. Feb. 20, 1997), a failure to prepare and file a written retraining plan containing the information required by rule is not a basis to reverse an award of retraining. Reitan, however, involved a request for retroactive approval of retraining, where the employee was only about one month short of completing her education by the time of the hearing on that issue. The employer and insurer in that case knew what classes the employee had taken and was taking, and their vocational expert had reviewed the employee’s transcript. Noting those circumstances, we stated that the “purpose [of the rule] becomes less important when it is retroactive certification that is being sought.” Id. at 3. The circumstances in the present case are completely different, and here the rule serves an obvious and important function - - to give the parties and the compensation judge adequate information about the proposed retraining to allow a reasoned evaluation of the plan.
We are also unable to conclude that the employee established entitlement to retraining. Factors to be considered in making a determination as to whether retraining is appropriate include:
1. the reasonableness of retraining versus return to work through alternate rehabilitation methods:
2. the likelihood of success in the retraining program;
3. the likelihood that the retraining will result in employment; and
4. the likelihood that the job returned to will produce an economic status as close as possible to that which the employee would have enjoyed without the disability.
Poole v. Farmstead Foods, 42 W.C.D at 978. In the present case, most of these factors weigh heavily against approval of the plan.
In her memorandum, the compensation judge concluded that “there was sufficient labor market information to conclude that in general the employment outlook is good in the social work field,” and that “it appears any degree in social work would likely result in higher wages than [the employee] is currently earning and with greater potential for earnings to increase thereafter.” These conclusions are not supported by the record.
First, the record contains almost no evidence indicating that the employee could reasonably expect to obtain employment in the field of social work after her graduation from Bemidji State. Mr. Brown had no information as to that institution’s placement rate for students obtaining bachelors degrees in social work. In addition, Mr. Brown provided no evidence concerning specific jobs currently available or that might become available in the employee’s labor market, that the employee would qualify for with only an undergraduate degree. Mr. Brown testified that there are thirty-six current job openings in Minnesota in the “social service areas, not specifically social worker.” He admitted, however, that some of those jobs were in South Dakota and Wisconsin, that there are probably more than thirty-six social work students at Bemidji State University alone, and that he has no information on the specific education, experience, or physical requirements of any of these jobs.
The compensation judge apparently relied in part on Mr. Brown’s testimony that the social work field will grow faster than average between 2006 and 2016, as well as on an attachment to Mr. Brown’s 2010 report, consisting of a computer printout entitled “Employment Projections 2006-2016.” The employment prediction contained in that printout, however, is qualified. Specifically, it states, “Depending on the specific certifications the social work field is projected to outpace all other occupations.” (Emphasis added.) Mr. Brown’s reports and testimony establish that many social work jobs require a master’s degree or additional training or education. Furthermore, in her memorandum, the compensation judge herself noted that the employee “did not show she has the ability to successfully complete a graduate course of study.” In short, the evidence does not establish that available social work jobs requiring only a bachelor’s degree are projected to increase in the coming years.
Mr. Brown’s original plan described the retraining rationale only as “education pays in higher earnings and lower unemployment rates.” The Occupational Employment Statistics printout, attached to his amended plan, indicates that starting wages in various social work-related occupational titles range from $8.60 to $19.24 per hour. But, again, there is no evidence as to which specific occupational titles the employee would qualify for with an undergraduate degree and with her physical limitations. Mr. Brown was asked at hearing whether “social work positions generally would put the employee in a financial position both from the standpoint of wages or salary and benefits which would be in excess of her wage at the time of this injury?” His response was, “[t]hat would be ideal.” He was then asked, “over a reasonable period of time would [the employee] be exceeding four hundred and eighty bucks a week once she got a job?” His response was, only, “I would certainly hope so.”
The employee has the burden of proof in establishing entitlement to retraining. In this case, the employee did not provide the information mandated by Minn. R. 5220.0750, subp. 2, and substantial evidence does not establish that a bachelor’s degree in social work is reasonably likely to result in a job that would provide an economic status as close as possible to that which the employee would have enjoyed without the disability.
While we reverse the judge’s award of retraining, we also conclude that the employee is a qualified employee as defined by rule. See Minn. R. 5220.0100, subp. 22. The employee is therefore entitled to rehabilitation assistance from a QRC of her choosing.
 The judge denied the employee’s claim for temporary total disability benefits from November 7, 2004, through April 26, 2005, because the employee did not make a diligent job search during this time period.
 On that date, Dr. Wickmann had noted that the employee’s condition was well controlled.
 The judge was not persuaded that the bulging discs found on CT scan shortly after the work injury were clinically significant or causally related to the work injury. The employee did not appeal from the judge’s decision.
 In her memorandum, the compensation judge noted:
Some questions were not fully answered at the hearing. For example, whether or not the employee would be admitted to the social work program was not certain. The number of semesters she would need to complete an undergraduate program was unclear. The employment outlook for the social work field was not differentiated between employees with an undergraduate degree versus a master’s or doctorate degree.…There clearly were some omissions in the proposed retraining plan.…The proposed course of study was generally outlined, but changed from the initial plan to the revised plan, but without adequate explanation of the length of the plan. The program course syllabus was not provided. Some projected labor market information was provided but not a labor market survey.
In spite of these deficiencies, the judge concluded that the plan for the employee to obtain a bachelor’s degree in social work “appears to be a good fit for the employee’s interests and abilities and would be a reasonable means of restoring her lost earning capacity due to the work injury.” Later in her memorandum, the judge commented that the employee “should at least be given the opportunity to give her best effort to succeed in college in order to restore her lost earning capacity as much as possible.”
 While Mr. Brown attached three job listings from MinnesotaWorks.net to his September 2010 report, he admitted on cross-examination that each listed job required more education or job experience than the employee would have upon completion of the retraining program.
 At hearing, the employee asked for rehabilitation assistance as an alternative to retraining.