LORI SWANSON, Employee, v. CYPRESS SEMICONDUCTOR CORP. and SENTRY INS. GROUP, Employer-Insurer/Appellants.
WORKERS’ COMPENSATION COURT OF APPEALS
FEBRUARY 9, 2012
REHABILITATION - RETRAINING. Where the employee cooperated with the rehabilitation plan in her job search but was able to find only part-time employment, substantial evidence supports the compensation judge’s award of the requested retraining plan.
Determined by: Stofferahn, J., Johnson, J., and Milun, C.J.
Compensation Judge: Adam S. Wolkoff
Attorneys: Gregg B. Nelson, Nelson Law Office, Inver Grove Heights, MN, for the Respondent. Jason Schmickle, Aafedt, Forde, Gray, Monson & Hager, Minneapolis, MN, for the Appellants.
DAVID A. STOFFERAHN, Judge
The employer and insurer appeal from the compensation judge’s award of the employee’s requested retraining plan. We affirm.
Lori Swanson sustained a work injury to her right shoulder on January 5, 2007, while working for Cypress Semiconductor Corporation [Cypress]. The employer and insurer accepted primary liability for the injury. Ultimately, the employee’s medical care for that injury was provided by Dr. Mark Sigmond. In October 2008, Dr. Sigmond performed surgery that he described as “an arthroscopic anterior acrominoplasty and arthroscopic distal clavicle excision for her right shoulder impingement syndrome and acromioclavicular joint arthrosis.” After surgery, the employee returned to work for Cypress in a light-duty position with restrictions limiting the use of her right arm. In February 2009, the employee, along with 25% of the work force at Cypress, was laid off.
When she was injured, the employee had a weekly wage of $648.00 and a benefit package that included medical and dental insurance, tuition reimbursement, stock options, and a 401K plan. The employee began working at Cypress in 1999; before her employment there, she had been at home for a number of years raising a family. The employee was forty-seven years old as of the date of the hearing. She graduated from high school in 1982 and attended a state university in Tennessee for two years where she obtained an associate of sciences degree. She worked for Josten Yearbook Company in Tennessee from 1983 to 1989. The employee has lived in Rosemount since 1994. She is a single parent with two college-age children.
The employer and insurer assigned a qualified rehabilitation consultant [QRC] to the employee in early 2009. Initially, the rehabilitation plan called for returning the employee to a physically suitable job with Cypress. After the employee lost her job there, the focus became a return to work with another employer. A job placement plan and agreement was completed and the employee initiated a job search under the direction of a placement specialist and the insurer-selected QRC. The work restrictions imposed by Dr. Sigmond were to avoid repetitive use of her right arm at chest level and above. The employee had also developed left shoulder symptoms that Dr. Sigmond concluded in May 2009 were the result of overuse of her left arm due to her right shoulder injury. Dr. Sigmond provided a therapeutic injection in the left shoulder and diagnosed left shoulder bursitis and impingement of the AC joint. No restrictions have been placed on the employee’s use of her left arm.
The employee found a job at Dermatology Consultants as a specimen accessioner and returned to work in June 2009. The employee was still working at that job as of the date of hearing. In her job she prepares information to be used in the analysis of skin biopsies. Although the number of hours varies, she generally works part-time, usually about twelve hours per week. She started at a wage of $13.00 an hour with no benefits and subsequently received an increase of $.20 an hour. The employee testified she did not expect a further increase or a move to full-time employment there. The QRC and the independent vocational expert [IVE] agree that this job does not meet the goal of returning the employee to an economic status as close as possible to the economic status she had before her work injury.
The employee testified that after her injury, she decided she was interested in returning to school and she discussed that vocational approach with her QRC. The employee began taking classes at Inver Hills Community College in the summer of 2009. Her transcript indicates she took one or two classes a semester and completed school there in May 2011 with an associate of arts degree. The employee testified she was interested in histology or similar laboratory work and her classes were aimed at preparing her for that field. The employee’s classes were paid by an educational grant the employee had received.
After she found work in 2009, the employee continued to job search with her QRC and placement specialist. After she returned to work and started going to school, the employee reduced her job search from full time to part time with the agreement of the QRC and placement specialist. In March 2010, the insurer terminated vocational rehabilitation services based on an independent medical examiner [IME] report that the employee had no restrictions from her work injury. In May 2010, the employer and insurer retroactively denied primary liability, a position that was rescinded in August 2010. In August 2010, the parties also discussed further rehabilitation services but the employer and insurer have not authorized further job placement since that time.
The QRC prepared and filed a retraining plan in November 2010 that calls for training the employee through a program at the University of Minnesota to be a clinical laboratory scientist. At the end of the program, the employee would have a four-year degree but because of the employee’s previous education, the plan would last for 104 weeks. Total retraining, exclusive of wage loss benefits, would cost approximately $44,000. The labor market survey completed as part of the retraining plan showed that there was a significant present and future demand for workers with that education and that wages and benefits in that occupation would closely approximate those received by the employee before her injury.
The employer and insurer refused to agree to the retraining plan and a hearing was held on August 24, 2011, before Compensation Judge Adam S. Wolkoff. The employee, her QRC, and an IVE, Roxanne Tarrant, testified at the hearing. In Findings and Order issued September 19, 2011, the compensation judge found the “proposed retraining plan constitutes reasonable and necessary vocational rehabilitation services” and the employer and insurer were ordered to pay for the proposed plan. The employer and insurer have appealed this order.
The employer and insurer argue that the compensation judge erred in awarding the employer’s requested retraining plan. They contend the employee’s job search was deficient and as a result, the employee failed to establish that retraining was preferable to additional job search.
This court has generally analyzed retraining cases in the context of the four Poole factors. Only one of those factors is at issue here. The employer and insurer do not dispute that the employee has the ability and interest to succeed in the proposed program, that the program would result in reasonably attainable employment, or that the proposed program is likely to produce an economic status as close as possible to that which the employee would have enjoyed without the disability. The challenge to the compensation judge’s award is based on the first Poole factor: the reasonableness of retraining as compared to job placement activities.
The employer and insurer’s brief points to two alleged failures on the part of the employee and her job search. First, it is argued that her job search was inadequate because her job contacts with prospective employers were made by using the internet rather than in person. Second, the employer and insurer contend that the employee did not update her resume after she obtained her associate of arts degree from Inver Hills Community College in June 2011 and that if she had done so the likelihood of a successful job search would have been increased.
The employee’s job search after her layoff from Cypress was done under the direction of a QRC selected by the employer and insurer. The employee met frequently with the QRC and the placement specialist and discussed her job search with them. There is no indication in the rehabilitation reports or forms that the employee was ever advised that she was conducting her job search inappropriately. Apparently neither the QRC nor the placement specialist found a problem with the employee’s use of the internet to contact prospective employers and the IVE did not really explain why this approach was inadequate. Further, we note that the employee’s approach in her job search was successful since she found employment at Dermatology Consultants. With regard to updating the employee’s resume, the QRC testified that obtaining the associate of arts degree at Inver Hills helped the employee obtain some of the credits she would need at the University of Minnesota but that the degree did not provide the employee with any transferable skills and was essentially the same degree she had obtained in Tennessee. In addition, by the time the employee obtained this degree in the summer of 2011, the employer and insurer were refusing to provide any further job search assistance.
When an employee is receiving rehabilitation services, the appropriate inquiry in considering the adequacy of job search is whether the employee has cooperated with the rehabilitation plan. Boeder v. State, Dep’t of Natural Resources, 63 W.C.D. 634 (W.C.C.A. 2003); Nelson v. Quality Pork Processors, No.WC07-138 (W.C.C.A. Oct. 3, 2007). The QRC testified that the employee cooperated with rehabilitation and, on cross-examination, the IVE agreed with that conclusion. Given those opinions and the record as a whole, the compensation judge’s conclusions that the employee conducted an adequate job search and established compliance with the first Poole factor are supported by substantial evidence.
Whether retraining is reasonable vocational rehabilitation is a question of fact for the compensation judge and will be affirmed by this court if the compensation judge’s decision is supported by substantial evidence. Norby v. Arctic Enters., 305 Minn. 519, 232 N.W.2d 773, 28 W.C.D. 48 (1975); Erickson v. City of St. Paul, 67 W.C.D. 515 (W.C.C.A. 2007).
We find ample evidence to support the compensation judge’s award of retraining and the compensation judge’s decision is affirmed.
 Poole v. Farmstead Foods, 42 W.C.D. 970 (W.C.C.A. 1989).