PAUL E. FISHER, Employee/Appellant, v. JIM LUPIENT AUTO MALL, SELF-INSURED/SFM RISK SOLUTIONS, INC., Employer/Respondent.

WORKERS’ COMPENSATION COURT OF APPEALS
MARCH 01, 2017

No. WC16-5976

REHABILITATION - RETRAINING. Substantial documentation and the testimony of the employee and his QRC regarding 29 months of extensive job search demonstrates the employee has engaged in a diligent search for alternative work. The record supports the reasonableness of the retraining proposed by the employee as compared to less costly retraining options where the employer and insurer failed to demonstrate suggested alternatives would be equally viable and effective in restoring the employee to suitable, gainful employment. Gainful employment is likely reasonably attainable upon completion of the operations management degree at St. Thomas with wages producing an economic status as close as possible to that the employee would have enjoyed without the disability.

    Determined by:
  1. Gary M. Hall, Judge
  2. Patricia J. Milun, Chief Judge
  3. Deborah K. Sundquist, Judge

Compensation Judge: James Kohl

Attorneys: Scott A. Teplinsky and Lucas V. Cragg, Teplinsky Law Group, Ltd., Minneapolis, Minnesota, for the Appellant. Gregg A. Johnson and C. Jeremy Lagasse, Heacox, Hartman, Koshmrl, Cosgriff & Johnson, P.A., St. Paul, Minnesota, for the Respondent.

Reversed.

OPINION

GARY M. HALL, Judge

The employee appeals from the compensation judge’s denial of his proposed three-year retraining plan in the field of operations management at St. Thomas University. We reverse.

BACKGROUND

The employee was an automobile repair technician from 1983 to 2013. On August 5, 2011, while working for Jim Lupient Auto Mall, the employee sustained an admitted injury to the low back. At the time of the injury, the employee was earning an average weekly wage of $1,387.90, or approximately $72,000.00 annually, with pension and health insurance benefits.

As a result of the work injury, on January 31, 2013, the employee underwent a two-level hemi-laminectomy, discectomy, and decompression surgery at L4-5 and L5-S1.[1] On July 25-26, 2013, the employee completed a functional capacities evaluation and was given medium duty permanent restrictions including no lifting over 50 pounds and no more than occasional (33%) standing, stooping, squatting, bending, twisting, crawling, and overhead lifting. The evaluator concluded the employee did not meet the physical demands of a service technician position.

On August 23, 2013, the employee was found eligible for rehabilitation services. Following completion of job seeking skills training with placement counselor Kelley Dorgan, a Job Placement Plan and Agreement (JPPA) was completed on November 11, 2013. The employee began a full-time job search with job placement assistance and an independent job search. An onsite job analysis at the employer determined that no modifications could be made that would allow the employee to return to work in his pre-injury occupation nor were there openings at the employer that would be within his restrictions.

In December 2013, the employee identified, on his own, a possible short-term bicycle sales and service position. He eventually secured full-time employment at Bokoo Bikes earning $8.50 an hour, beginning on February 5, 2014. At the beginning of February, a new QRC, Jenna Warman, was assigned to the employee’s rehabilitation file. Noting the employee would suffer a significant wage loss of approximately $1,047.00 a week, the QRC recommended continuation of a job search, part-time, in which the employee would be responsible only for following up job leads provided by the QRC and placement specialist Dorgan. A revised JPPA and Rehabilitation Plan Amendment (R-3) were completed on February 11, 2014.

In a letter to the claims adjuster in May 2014, the QRC recommended exploration of retraining options. She noted the employee’s transferrable skills were specialized as an automobile service technician where he had been a high wage earner with an average weekly wage which might be difficult to recover outside his date-of-injury occupation. A Placement Services Summary was prepared by Ms. Dorgan outlining the employee’s job search from November 13, 2013, through May 29, 2014, a period of approximately six months. The rehabilitation firm made 156 cold calls to employers, submitted 14 resumes on behalf of the employee, and provided 114 job leads to the employee. The employee made 51 phone contacts, completed 157 applications and submitted 162 resumes and cover letters (usually for the same employer), made 5 in-person contacts, reviewed 144 classified or internet ads, and had 13 interviews. Ms. Dorgan assessed the results of job development efforts to date. She reported the employee had been diligent in his job search efforts, and based on the job search activities of both the firm and the employee, it was her vocational opinion that placement services alone would not return the employee to suitable, gainful employment.

In June 2014, the employee was promoted to store manager at Bokoo Bikes earning an annual salary of $35,000.00 without fringe benefits, working 40 to 60 hours a week. As the store manager, the employee was responsible for supervising employees, managing inventory, managing multiple point of sale terminals, opening and closing the store, managing the store website and online sales, providing customer service, forecasting future product needs, advising the owner on proposed business strategies, and addressing other issues at the bike shop. Job search efforts continued with job leads identified through a combination of internet job sites, career fairs, classified ads, and direct contact with employers through cold calling.

Over the summer, vocational and aptitude testing and a transferable skills analysis were completed. The tests showed the employee has an above-average to superior rating in the majority of the academic and aptitude areas tested. In October 2014, the employee expressed an interest in the business management field. Ms. Dorgan researched local colleges and universities that offered business management or business administration programs and provided the information to the employee. The employee expressed a desire to learn more about what local employers were looking for in potential candidates for management positions.

A labor market survey was initiated to assess employment prospects upon completion of a Business Management degree. Occupations researched included human resource manager, purchasing manager, marketing manager, general and operations manager, first line retail sales workers supervisor, food service manager, supply chain manager, and property, real estate and community association manager. Positions requiring a bachelor’s degree were found to be higher paying than positions that did not require a degree. Business administration degrees at Concordia University, Globe University, and Hamline University were explored. Ten employers were then contacted. The majority of the employers indicated a preference for, or required, a bachelor’s degree as well as prior work experience. The majority of the positions were in an office setting and would be within the employee’s physical restrictions. However, a majority of the employers expressed a desire for specialized experience in a specific management field, either with past work experience or a specialized formal education.

An addendum was therefore made to the initial labor market survey to determine management employment prospects with a concentration in Entrepreneurship. Education opportunities in this area were reviewed at the University of St. Thomas, the University of Minnesota Carlson School of Management, and St. Mary’s University and an additional ten employer contacts were made. Most of the employers acknowledged the value of a business degree, but rated past work experience in a similar business area higher. The majority also indicated that being a business owner is often physically demanding. (Ex. G-1, April 22, 2015 Labor Market Survey.)

After further consideration, additional research was conducted to determine employment prospects focusing specifically on the area of general and operations management. A Labor Market Survey Addendum was completed on May 19, 2015. (Ex. G-2.) Ten employers were contacted. There was a clear preference for a four year bachelor’s degree along with some customer service or management experience. The positions were generally physically suitable. Wages varied widely, depending on the employment pursued and experience, starting at $32,000.00 and increasing to $65,000.00 annually or more. All indicated they had openings. Two colleges were identified with bachelor degree programs in operations management - the University of St. Thomas and National American University. National American University offered only one course in operations management and was unable to provide any placement statistics. The program at St. Thomas offered a full curriculum specific to operations management.

A Retraining Plan was completed in August 2015, with the goal of obtaining a bachelor’s degree in Operations Management at St. Thomas University. The degree program would take approximately three years to complete at an estimated cost of $194,381.00 to $207,246.00. A Retraining Rationale, dated July 30, 2015, was attached to the plan detailing the employee’s medical information and permanent restrictions, a summary of placement services and job search to-date, the results of vocational testing, a course summary including course requirements and class titles, specific anticipated costs, the undergraduate academic calendar, and a job description for operations management positions.

In October 2015, the employee and QRC Warman met with Betsy Lofgren, an academic counselor at St. Thomas University, to complete a credit evaluation and develop a degree plan for the employee. A full curriculum with specific classes was outlined beginning in the January 2016 (“J”) term. Few of the employee’s credits from previous community college classes transferred, but he was granted 3.3 credits for a math elective. The plan was to complete the degree by the summer of 2018. The employee had previously applied to St. Thomas and had been admitted and was encouraged to reapply for entrance in January 2016.

On September 16, 2015, David Berdahl, a rehabilitation consultant conducted a vocational evaluation with the employee at the request of the employer and its third-party administrator. QRC Berdahl’s firm contacted St. Thomas University, North Hennepin Community College, and Normandale Community College and reviewed information about Metropolitan State University, as well as conducting a labor market survey between October 13 and December 8, 2015. By report dated January 29, 2016, QRC Berdahl concluded that a properly conducted and serious job search had not been made. In addition, he opined the proposed retraining plan was not appropriate and recommended it be placed in abeyance asserting the employee, then 51, would have to remove himself from the labor market for a number of years while in school; that there were other educational options including two year associate degree programs possibly combined with a transfer to a four-year program, or another less-costly business degree program such as that at Metropolitan State University; that the labor market surveys, including that of his firm, indicated employers would not consider the employee a viable candidate because of his lack of experience and not his lack of education; and because options for direct placement, particularly automotive service advisor, service writer, or estimator positions were not targeted in the job search.

Part-time placement services continued while the retraining plan was developed in an ongoing effort to assist the employee to secure suitable, gainful employment. A second Placement Services Summary was completed by Kelley O’Hearn [nee Dorgan] in May 2016 covering the period from May 30, 2014 to March 31, 2016. During this time 1,308 cold calls were made to potential employers, 49 resumes and cover letters were submitted on behalf of the employee, and 241 job leads were provided by the rehabilitation firm. The employee submitted 297 applications and/or resumes, made 64 phone contacts, 8 in-person contacts, and had 4 interviews.

The self-insured employer disagreed with the proposed retraining plan and asserted the employee was not an eligible retraining candidate. The case was heard by a compensation judge on April 21, 2016. In Findings and Order issued June 6, 2016, the compensation judge found the evidence failed to support (1) the reasonableness of the proposed retraining plan as compared to continued job placement activities or other viable, less costly, retraining options; (2) the likelihood the proposed plan will result in reasonably attainable employment; and (3) the likelihood the proposed plan will produce an economic status as close as possible to that which the employee would have enjoyed without the disability. The employee appealed.

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(3). 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).

A decision which rests upon the application of a statute or rule to essentially undisputed facts generally involves a question of law which the Workers’ Compensation Court of Appeals may consider de novo. Krovchuk v. Koch Oil Refinery, 48 W.C.D. 607, 608 (W.C.C.A. 1993), summarily aff’d (Minn. June 3, 1993).

DECISION

The goal of rehabilitation assistance is to return the employee as closely as possible to the economic status the employee would have enjoyed but for the injury. An employee is entitled to rehabilitation services if he is likely to be precluded from engaging in his preinjury occupation and can reasonably be expected to benefit from rehabilitation services “which could significantly reduce or eliminate the decrease in employability.” Wilson v. Crown Cork & Seal, 503 N.W.2d 472,475, 49 W.C.D. 51, 54 (Minn. 1993); Minn. Stat. § 176.102, subd. 1(b). In evaluating entitlement to retraining, this court has considered four areas of concern, three of which are pertinent to this case:[2] (1) the reasonableness of retraining as compared to returning to work with job placement activities; (2) whether retraining is likely to result in reasonably attainable employment; and (3) whether retraining is likely to 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. 970, 978 (W.C.C.A. 1989).

1.   Continued Job Placement Activities

The employer and third party administrator insurer argued below and on appeal that the employee’s job search was deficient and as a result the employee failed to establish that retraining is preferable to additional job search. The compensation judge accepted QRC Berdahl’s assertion that the employee had not been involved in a serious job search effort, concluded the employee’s primary focus had been solely on retraining, and found the evidence failed to support the reasonableness of retraining as compared to continued job placement activities.

There is no dispute the employee cannot return to his pre-injury occupation as an automobile service technician and the employer was unable to accommodate the employee’s permanent restrictions.[3] Accordingly, a job search was initiated in November 2013 with the assistance of a QRC and a placement specialist. Other than a brief recap of the two Placement Services Summaries prepared by Ms. Dorgan, the compensation judge made no reference to the voluminous documentation reflecting the job search performed by the employee with the assistance of his QRC and placement vendor over a 29 month period.

QRC Berdahl’s report is self-contradictory and at odds with the evidence. Mr. Berdahl reviewed the placement specialist’s records and reports, the employee’s job logs from November 11, 2013, to October 20, 2015, and the proposed retraining plan. He outlined at various points in his report details of the employee’s exhaustive job search efforts but nevertheless characterized the job search as not serious.

QRC Berdahl took issue with the way the job search had been conducted, alleging the employee and the QRC firm had minimal involvement with potential employers. However, he recounted that during the twenty months covered by his report, the QRC firm made 589 cold calls, submitted 22 resumes on the employee’s behalf, and provided 269 leads, and the employee submitted 296 applications, made 90 phone calls, had 6 in-person contacts, reviewed 431 potential leads over the internet, and had 14 interviews. A careful and thorough review of the job search records submitted (Exs. M and N) as well as the testimony of the QRC and the employee establishes the QRC and placement vendor provided job leads to the employee through a combination of internet job sites, career fairs, classified ads, and direct contact with employers through cold calling. During the first six months of the job search the rehabilitation firm reviewed 11,485 job opportunities to identify viable areas of job search. It appears, in total, the rehabilitation firm made about 1,464 cold calls, submitted 63 resumes and cover letters on behalf of the employee, and provided 328 job leads over a 29 month period. The employee made 115 phone contacts, submitted 459 applications and/or resumes, made 13 in-person contacts and had 17 interviews. Most of this took place while the employee was working full-time, 40 to 60 hours a week, as the store manager for Bokoo Bikes. These efforts did not result in a single job offer.

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. Swanson v. Cypress Semiconductor Corp., 72 W.C.D. 53, 58 (W.C.C.A. 2012). QRC Warman testified the employee did an excellent job following through on all job search activities. She considered the employee’s job search extremely diligent, better than most of her clients, stating he did more than was expected of him. QRC Berdahl agreed the employee had diligently followed up with the job leads provided by the QRC and placement vendor and was cooperative with the job search effort. (T. 214, 217.) There was no evidence the employee’s primary focus was solely on retraining or that he failed to diligently pursue alternative employment. Mr. Berdahl additionally contended the QRC firm should have set up interviews for the employee. QRC Warman testified that the employee was clearly capable of scheduling interviews on his own, and did so, and in her experience a QRC scheduling an interview on behalf of an employee can be a “red flag” and a detriment to the employee’s interests. (T. 50.)

QRC Berdahl maintained the job search involved limited contact with employers in the automotive market and testified that further job search was warranted taking a good look at the automotive aftermarket. Even a cursory review of the documented job search efforts shows that the vast majority of the job leads provided and employer contacts made were in the automotive field. More specifically, Berdahl in his report indicated that rehabilitation services had failed to provide leads to the employee as an automotive service advisor, service writer, or estimator. Later, in his testimony, he asserted there were “six or seven.” (T. 220.) In fact, from December 2013 through November 15, 2015, the employee was provided 27 leads for such positions in the automotive field. On December 16, 2013, the employee had an interview for a service estimator position, an interview on January 22, 2014, for a lube service advisor, and two interviews in May 2014 for a future service advisor position, none of which resulted in a job offer. QRC Berdahl was unaware of this fact. (T. 233.) Mr. Berdahl acknowledged that, despite his 30 years of experience as an automobile technician, the employee had never been offered a service advisor or service writer position. (T. 232.) The QRC further indicated employers typically promote from within and that “it’s a hard field to break into.” (Ex. 2; T. 234.)

Finally, it was implied that the employee’s job search was inadequate because job contacts with prospective employers were made by using the internet. The employee explained that a lot of times employers require applicants to fill out online applications and perform online testing, in addition to sending out resumes and making phone calls to employers. (T. 157-58.) QRC Warman testified that online applications were identified as one of the methods to be used for job search, and that the employee did not restrict himself to online applications, but used other methods as well. QRC Berdahl agreed that, although he was not sure why they did it, employers were certainly requiring the internet for the application process and agreed it was reasonable for the employee to use that process. (T. 233-34.)

We further observe that while the reasonableness of retraining as compared to pursuing additional job search is an area of concern under Poole, “it is not necessarily dispositive.” Wilson, 503 N.W.2d at 475, 49 W.C.D. at 54. This court has repeatedly stated that a diligent job search is not necessarily a prerequisite for retraining. Rather, each case must be analyzed on its own facts with a view to determining the approach or plan that will most realistically result in a return to suitable, gainful employment. See, e.g., Schmidt v. Arrowhead Elec., 64 W.C.D. 237 (W.C.C.A. 2004); Ascher v. Bill Dentigner, Inc., slip op. (W.C.C.A. May 23, 2001). In this case, we can only conclude that the evidence does not support the conclusion that the employee, with the assistance of his QRC and placement specialist, failed to conduct a serious job search so as to preclude consideration of retraining under the Poole factors. The only reasonable interpretation of the substantial documentation and the testimony regarding the employee’s 29 months of extensive job search is that the employee has engaged in a diligent search for work.

2.   Reasonableness of Retraining

The purpose of retraining is to return the employee to suitable gainful employment through a formal course of study in a school setting. Minn. Stat. § 176.011, subd. 17a; Minn. R. 5220.0750, subp. 1. “Suitable, gainful employment” means employment which is reasonably attainable and which offers an opportunity to restore the injured employee as soon as possible and as nearly as possible to his pre-injury economic status. Minn. R. 5220.0100, subp. 34. Retraining is to be given equal consideration with other rehabilitation services. Minn. R. 5220.0750, subp. 1. To obtain retraining, the employee need not prove that retraining is the only rehabilitation option available, but, rather, that retraining is an appropriate rehabilitation option. Schmidt, 64 W.C.D. 237.

The compensation judge found the evidence failed to support the reasonableness of the retraining proposed by the employee as compared to other viable, less costly, retraining options. The respondents assert the employee failed to establish that a bachelor’s degree is a “necessity.” They contend the labor market survey conducted by the employee’s QRC firm establishes, if anything, nothing more than a preference by a minority of the employers contacted. They maintain that a “preference” does not rise to the level of a necessity and that since a degree is not a necessity, at the very least the employee ought to be directed to a less costly alternative.

The Minnesota Supreme Court has repeatedly stated that in considering whether retraining is appropriate, “necessary” does not mean “indispensable.” Rather, retraining is necessary if it will likely materially assist the employee in restoring his or her impaired capacity to earn a livelihood. Siltman v. Partridge River, Inc., 523 N.W.2d 491, 51 W.C.D. 293 (Minn. 1994); Wilson, 503 N.W.2d at 475, 49 W.C.D. at 54; Leahy v. St. Mary's Hosp., 339 N.W.2d 265, 268, 36 W.C.D. 253, 256 (Minn. 1983); Norby v. Arctic Enters., 305 Minn. 51, 232 N.W.2d 773, 775, 28 W.C.D. 48, 50 (1975). The April 22, 2015, labor market survey looked at business management generally and entrepreneurship. The results of this survey demonstrated that employers are seeking employees with specialized degrees. (T. 58-59; Ex. G1.) A more focused survey was then conducted in the area of operations management. Of the ten employers contacted for the May 19, 2015, survey, nine either required or strongly preferred a bachelor’s degree. The proposed retraining plan at St. Thomas University was selected because it offers a curriculum and degree specific to operations management.

The employer and insurer argue that, if retraining is appropriate, the employee should be required to attend one of the less expensive alternatives. QRC Berdahl suggested a four year degree program at Metropolitan State University or enrollment at a community college such as North Hennepin Community College or Normandale Community College. When alternative retraining is proposed, the compensation judge must consider the proposed alternatives in light of the Poole factors and compare the plans, considering the relative costs, duration, and effectiveness of the programs in returning the employee to an economic status as close as possible to that enjoyed by the employee without the disability. Varda v. Nw. Airlines Corp., 692 N.W.2d 440, 444, 65 W.C.D. 92, 98 (Minn. 2005)(citing Kunferman v. Ford Motor Co., 55 W.C.D. at 467-68 (W.C.C.A. 1996)); Christensen v. Nw. Airlines Corp. 70 W.C.D 212, 220 (W.C.C.A. 2010).

QRC Berdahl indicated that academic counselor Betsy Lofgren at St. Thomas University suggested the hypothetical candidate should attend community college first. The person to whom Mr. Berdahl spoke had met with the employee. She in fact recommended against taking community college credits and signed off on the proposed three year curriculum at St. Thomas. The employee was accepted for admission at St. Thomas twice. Mr. Berdahl stated that one of the advantages of a two-year degree program is that it allows a student to get into the labor market faster. He noted Normandale college has a two-year AA degree in the area of Business Management. The student completes the first two years at Normandale and then completes the next two years at a four-year college to get a bachelor’s degree. Projected wage information upon graduation was reported for the two-year colleges, but no information was submitted regarding the cost, curricula, or graduation placement information.

Mr. Berdahl suggested a full-time, four-year degree program at Metropolitan State University as a viable, less-costly alternative. QRC Berdahl estimated the cost would be approximately $40-45,000 for credits, books, and supplies. Additional costs, set forth in detail in the proposed retraining plan, were not analyzed. The program provides a business management degree with only one course in the operations management field. The college’s placement data shows that only 35% of its graduates obtained full-time employment in the business management field within a year of graduation. No earnings estimates were provided.

The compensation judge made no findings comparing the Metropolitan State program or any other program in light of the Poole criteria. The proposed St. Thomas retraining program was selected because of the availability of a specialized degree in operations management based on the labor market survey indicating the likelihood of better prospects for employment upon graduation with such a degree. The respondents acknowledge that St. Thomas “has a good track record of assisting its students in their endeavors for employment by way of their curriculum and internship opportunities.” (Resp. Brief p. 12.) The research conducted showed the majority of the students in the program obtained experience and developed contacts by participating in an internship program, and post-graduate employment statistics showed that 96% of recent graduates secured positions in the operations management field within one year of graduation.

The record in this case supports the appropriateness of retraining. Evidence as to the employee’s intelligence, interests, experience, and physical condition support the proposed plan.[4] When alternative retraining proposals are not shown to be equivalent, there is no obligation to impose a less expensive but qualitatively inferior plan. Koppen v. Knowlan’s Super Market, 71 W.C.D. 99, 104 (2011); compare Varda, 692 N.W.2d 440, 65 W.C.D. 92. The employer and insurer failed to demonstrate the suggested educational alternatives would be equally viable and effective in restoring the employee to suitable, gainful employment.

3.   Reasonably attainable employment

The employer and its third party administrator argue the employee’s removal from the labor market and age at the anticipated end of the retraining program will make placement difficult. They assert experience in a field is linked to the passage of time, something that does not favor the employee in this case. The employer maintains the average applicant will be in the early stages of their working lives while the employee, age 52 at the time of hearing, “is at the tail end” of his.

Both the May 19, 2015, labor market survey and the job search experience of both the QRC firm and the employee indicate further education is needed to advance the employee’s prospects of obtaining suitable, gainful employment. QRC Warman observed that in the course of the job search “[p]lenty of employers strongly preferred or required a bachelor’s degree in a lot of positions that we considered and that was a huge barrier. Today most people have a bachelor’s degree, it’s the new high school diploma really.” (T. 53.)

The employers surveyed in the general and operations management field said they have work available. QRC Berdahl agreed the field of operations management fits well with the experience the employee is now gaining as the bike shop manager. As noted previously, St. Thomas students in this program gain experience as interns and graduates experience a very high placement rate.

The employee’s QRC testified that in her experience the employee’s age and work experience would be seen as positive attributes by many employers. She believed there are a lot of employers that would be willing to consider someone with the employee’s level of maturity, stability, years of work, and management experience. Mr. Berdahl’s assertion implies that employers will always prefer younger candidates. If followed to its logical conclusion, then no employee over a certain age should be considered for retraining, but will simply have to make do. Compare Schmidt, 64 W.C.D. 237; Anderson v. Metropolitan Mech. Contractors, Inc., slip op. (W.C.C.A. Oct. 19, 1999). The proposal to place retraining “in abeyance” is substantially predicated on the employee’s age. The employee is not going to get any younger while retraining is delayed.

4.   Economic status as close as possible to pre-injury status

The respondents argue the employee cannot reasonably expect to obtain employment resulting in immediate improvement in his wages and economic circumstance upon graduation. They maintain starting wages in the field of operations manager are not significantly higher than the employee’s present earnings.

The rehabilitation statute, Minn. Stat. § 176.102, subd. 1(b), provides that “[e]conomic status is to be measured not only by opportunity for immediate income but also by opportunity for future income.” Wilson, 503 N.W.2d at 475, 49 W.C.D. at 54. A focus solely on entry level wages alone, without considering the potential for increased future earnings, is not consistent with the statute. Schmidt, 64 W.C.D. at 244.

It is undisputed the employee’s current full-time position as store manager for Bokoo Bikes pays $35,000 annually with no fringe benefits. The labor market survey for operations managers showed entry level salaries between $32,000.00 to $48,000.00 annually. With two to five years of experience, salaries ranged between $50,000.00 to $65,000.00. Career follow-up statistics from St. Thomas showed a median salary between $50,000.00 to $55,000.00 one year after graduation. The operations management field is a growing industry, with anticipated expansion of 8% in Minnesota and 12% nationally. Alternatives suggested by QRC Berdahl, such as service advisor or service writer positions have not panned out.

The employee’s current job provides him with less than half of his pre-injury wage without fringe benefits. While temporary partial disability being paid now may cushion that wage loss, that benefit will end for the employee and it seems reasonable to consider a rehabilitation option that will minimize the economic loss the employee faces now and in the future.

We, accordingly, reverse the compensation judge’s denial of the proposed three-year retraining plan in operations management at St. Thomas University.



[1] Following the surgery, the self-insured employer paid 50.8 weeks of temporary total disability benefits between January 28, 2013, and January 16, 2014.

[2] There is no dispute the employee has the interest and the academic ability to succeed in a formal course of study in school.

[3] The employee received a last minute job offer from the employer, near the end of March 2016, for a light-duty technician position which would have paid less money than he was earning at Bokoo Bikes and did not appear to meet his physical restrictions.

[4] The compensation judge indicated it was unclear whether potential employers could accommodate the employee’s permanent physical restrictions. (Finding 25.) There was never any dispute regarding the physical appropriateness of the position of operations manager. A job description was reviewed by the employee’s treating physician on August 11, 2015, who approved the position. QRC Berdahl agreed the position of operations manager is physically suitable.