MATTHEW L. DEVITT, Employee/Cross-Appellant, v. BARRETT MOVING and VANLINER INS. CO., Employer-Insurer/Appellants.

 

WORKERS= COMPENSATION COURT OF APPEALS

JULY 25, 2002

 

HEADNOTES

 

REHABILITATION - RETRAINING.  Substantial evidence supports the compensation judge=s findings that the Poole factors were met and the award of a retraining program as a paralegal.

 

Affirmed.

 

Determined by Stofferahn, J., Johnson, C.J., and Pederson, J.

Compensation Judge:  Joan G. Hallock.

 

OPINION

 

DAVID A. STOFFERAHN, Judge

 

The employer and insurer appeal the compensation judge=s award of retraining.  The employee cross-appeals the compensation judge=s refusal to apply the principles of res judicata in the hearing.  We affirm.

 

BACKGROUND

 

Matthew Devitt, the employee, sustained a personal injury to his low back on November 6, 1998, while working for Barrett Moving, the employer, as a household mover at an average weekly wage of $480.00.  Liability for the injury was accepted by the employer. 

 

On April 4, 2001, this matter came on for hearing before a compensation judge on the employee=s request to modify his rehabilitation plan to allow retraining as a paralegal.  In her decision of May 3, 2001, which was not appealed by either party, the compensation judge denied the request.  In her memorandum, the compensation judge detailed information about the employee and his claim which the parties incorporated by reference at the subsequent proceeding. 

 

The employee=s low back injury necessitated fusion surgery, performed by Dr. James Ogilvie on April 25, 2000.  By reason of his injury and surgery, the employee was unable to return to his pre-injury employment as a furniture mover.  The employee is a high school graduate, with some additional schooling in auto shop, photography, and truck driving but he has no additional certifications or diplomas.  His pre-injury employment history consisted of kitchen work, moving, house renovation, painting, and some craft work associated with films.  The employee was thirty-seven years old on the date of injury.

 

Since the work injury, the employee has been only minimally employed.  He worked one day delivering magazines but quit on the advice of his doctor after his back pain increased.  The employee worked for less than a month as a shuttle van driver but stopped when he was given an airport route and was expected to lift luggage.  He worked for a time in the shipping department of a photo lab processor but found that the job required constant bending and stooping.  Even though the heaviest weight to be lifted was less than five pounds, the job aggravated his low back and he left.  The employee worked for a couple of days at a car dealer as a lot attendant but was fired after two collisions in the parking lot.

 

The employee has had a QRC, Robert Otos, since February 1999.  Mr. Otos assisted the employee in job search in the areas of light assembly, warehouse, lot attendant, truck driver/courier, and light office jobs.  According to Mr. Otos, the jobs sought were in the $7.00 to $9.00 per hour range.  The jobs were physically appropriate for the employee but were not economially appropriate.  The QRC indicated that the employee was cooperative in his job search efforts. 

 

The QRC testified in the first hearing that the employee could not return to work as a furniture mover and that, in order to restore his earning capacity, the employee was in need of retraining.  The employee was referred for vocational testing and the testing demonstrated that the employee had the aptitude to succeed in a formal retraining program.  The employee wanted to be retrained as a paralegal through a one and one-half year program offered by the Minnesota School of Business.  The QRC testified that the employee had the ability and interest to succeed in paralegal work and stated that retraining as a paralegal would produce an economic status as close as possible to that which the employee would have enjoyed without his disability.

 

The compensation judge denied the retraining claim because she found the employee had not met his burden in proving that reasonably attainable employment would be available after retraining as a paralegal.  The employee had a felony conviction in 1980 for robbery.  No labor market survey was done to determine if someone with a felony conviction would be employable as a paralegal.

 

After the compensation judge=s decision was filed on May 3, 2001, the employee filed a second rehabilitation request, again seeking retraining as a paralegal through the program at the Minnesota School of Business.  The employer denied the request and the dispute came on for hearing before the same compensation judge on October 19, 2001.

 

In the interim, the employee had petitioned for and received an order from the Hennpin County District Court sealing the record of his felony conviction.  The employee also testified that since the last hearing he had continued to look for suitable employment.  He contacted employers identified by the employer=s vocational expert in the first hearing but did not obtain a job.  He worked for two days as a line cook at Holiday Inn but found the work to be too physically demanding.  A friend gave him a job at a painting company, allowing him to work at reduced duties for a reduced wage.  The employee testified he was still interested in being a paralegal.

 

The employee=s QRC testified that a labor market survey was done and that even with a felony conviction, the employee was employable as a paralegal.  The QRC continued to recommend the retraining program and indicated that further job search would not return the employee to his pre-injury economic status.  The QRC was asked about the possibility of security work for the employee.  He responded that the work was not physically suitable and would not return the employee to his former economic status.

 

The employer presented the testimony of Richard Van Wagner, a vocational expert.  Mr. Van Wagner stated that retraining was not necessary for the employee.  With his felony conviction sealed, the employee would be able to obtain a job as a security guard.  Such a job would be physically appropriate and would pay the employee what he was earning at the time of his injury.  Mr. Van Wagner also testified that the employee=s job search efforts indicated that the employee was not the type of self-starter who could succeed in employment as a paralegal.

 

In her decision, filed December 19, 2001, the compensation judge approved the requested retraining plan.  The employer has appealed.  The employee cross-appealed the judge=s refusal to apply res judicata and incorporate her findings from the first hearing in considering the issues at the second hearing.

 

DECISION

 

In considering the request for retraining, the compensation judge properly applied the Poole factors:^[1] (1) the reasonableness of retraining compared with job placement activities; (2) the likelihood of the employee succeeding in a formal course of study given the employee=s abilities and interests; (3) the likelihood that retraining would result in reasonably attainable employment; and (4) the likelihood that retraining would produce an economic status as close as possible to that which the employee would have enjoyed without the disability.

 

In its appeal, the employer does not challenge the ability of the employee to succeed in retraining or argue that the program selected would not return the employee to his pre-injury economic status.  The employer argues that retraining is not necessary since the employee could find appropriate employment through job search and alleges that the employee is not likely to succeed in his efforts to be employed as a paralegal. 

 

The employer=s argument is based on the testimony of its vocational expert, Richard Van Wagner.  Mr. Van Wagner testified that with a felony conviction of the employee sealed, he would be able to find employment as a security guard or in some other area of security work.  According to Mr. Van Wagner, such jobs are readily available, pay in the range of the employee=s pre-injury employment, and provide benefits as well.  No other type of employment which might be developed through job search were identified by Mr. Van Wagner.

 

In contrast to Mr. Van Wagner=s position, the QRC testified that security work was not physically suitable for the employee.  The physical requirements of security work as demonstrated by exhibits produced by the QRC at the hearing were in excess of the restrictions imposed upon the employee by his treating doctor.  In addition, security work would pay only in the $8.00 to $9.00 per hour range which would result in an ongoing wage loss for the employee.  The employee stated at the hearing that he was not interested in performing security work and doubted his physical ability to perform those types of jobs.  The QRC  testified that further job search efforts would be futile.

 

The employer also argues on appeal that the employee should not be retrained as a paralegal because a person performing that type of work would have to be a self-starter and demonstrate initiative.  The employee=s lack of success in obtaining employment in a Agood economy@ was evidence that he lacked those attributes according to Mr. Van Wagner. 

 

The employee testified regarding his job search efforts in the six months between the two hearings and noted that two separate jobs had been obtained in that time.  Further, the employee received no job placement assistance from the QRC in that time.

 

Whether proposed retraining is necessary or appropriate is a question of fact for the compensation judge.  Here, the compensation judge adopted the testimony of the employee and the opinion of the QRC.  Consideration of conflicting expert opinion and adoption of one of those opinions is uniquely a function of the compensation judge.  Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985).  Substantial evidence exists to support the determination of the compensation judge that the proposed retraining program was appropriate for the employee.  Where the compensation judge=s finding are supported by substantial evidence, we must affirm the decision reached below.  Norby v. Arctic Enters., Inc., 305 Minn. 519, 232 N.W.2d 773, 28 W.C.D. 48 (1975).  The decision of the compensation judge in this case is affirmed.^[2]