CATHERINE J. KLOSTER, Employee/Appellant, v. MCGOUGH CONSTR. CO., INC., and ST. PAUL FIRE & MARINE INS. CO., Employer-Insurer.

 

WORKERS= COMPENSATION COURT OF APPEALS

JANUARY 18, 2002

                                                                             

HEADNOTES

 

REHABILITATION - RETRAINING.  Substantial evidence, including the report and opinions of the employer and insurer=s vocational expert, supports the compensation judge=s findings and order denying approval for the employee=s proposed retraining plan as a building inspector.

 

Affirmed.

 

Determined by: Johnson, J., Wilson, J., and Pederson, J.

Compensation Judge: Catherine A. Dallner

 

OPINION

 

THOMAS L. JOHNSON, Judge

 

The employee appeals from the compensation judge=s denial of her request for approval of a proposed retraining plan.  We affirm.

 

BACKGROUND

 

Catherine J. Kloster, the employee, injured her low back on November 10, 1997, and May 3, 1999, while working for McGough Construction Company, Inc., insured by St. Paul Fire & Marine Insurance Company.  The employee=s weekly wage on May 3, 1999, was $1,085.07.  The employer and insurer admitted liability for the employee=s personal injuries and paid benefits to the employee, including payment of a 10 percent whole body disability for multi-level degenerative disc disease.^[1]

 

Following her 1997 personal injury, the employee received treatment at Camden Physicians.  On November 25, 1997, Dr. Love diagnosed an acute lumbar strain and allowed the employee to return to work, with restrictions.  An MRI scan on June 17, 1998 showed a mild central disc protrusion at L4-5 with degenerative changes at L4-5 and L5-S1, without foraminal narrowing or stenosis.  In July 1998, Dr. Love diagnosed L4 nerve root radiculopathy with less impressive MRI findings.  The employee returned to the clinic on May 21, 1999, following her second low back injury.  Dr. Love diagnosed chronic low back pain with known low grade HNP disease.^[2]  The doctor changed the employee=s restrictions to 50 pounds of lifting, carrying, pushing and pulling.  A second MRI scan on November 12, 1999, was unchanged except the L4-5 disc protrusion was less well appreciated on the 1999 study. 

 

On January 18, 2000, the employee saw Dr. Paul Crowe, an orthopedic surgeon, on referral from Dr. Love.  The doctor=s examination was essentially normal and he felt the employee would recover completely.  Thereafter, however, Dr. Crowe diagnosed degenerative disc disease at L4-5 and L5-S1, and imposed restrictions on the employee=s ability to work.  By February 15, 2000, Dr. Crowe stated he did not believe the employee would be able to continue in the construction field for the long run.  Dr. Crowe ordered a functional capacity evaluation, FCE, which was conducted on March 21, 2000.  The FCE recommended restrictions on lifting, carrying, squatting and crouching with frequent positional changes.  From June through September 2000, the employee received physical therapy under the direction of Todd Ginkel, D.C.

 

Following her personal injuries, the employee remained with the employer performing light-duty work.  In April 2000, Kathleen Anderson, a qualified rehabilitation consultant (QRC), met with the employee.  Initially, Ms. Anderson=s plan was to provide medical management and clarify the employee=s restrictions.  On May 8, 2000, the employee returned to see Dr. Crowe, together with Ms. Anderson.  The employee stated she was symptomatic particularly due to sweeping on a concrete floor all day.  Dr. Crowe then restricted the employee from walking on concrete floors or the use of a broom in any fashion.  The employer was unable to accommodate these additional restrictions and the employee=s job with the employer was terminated.  The employer commenced payment of temporary total disability benefits.

 

 In June 2000, the employer, Ms. Anderson and the insurer entered into a job place­ment plan and agreement providing for part-time job search of 20 to 25 hours a week while the employee was in physical therapy.  The areas of the employee=s job search were general office/ ad­ministrative work, city desk/customer service and sales.  Ms. Anderson described the employee=s job search as very diligent and over and above what was expected of her.  On September 26, 2000, the employee began working for Hannon Security earning $11.25 an hour.  The employer and insurer commenced payment of temporary partial disability benefits.

 

The employee was born on March 30, 1960, and was 41 years of age on the date of the hearing.  She graduated from high school in Baldwin, Wisconsin.  The employee had a grade point average of 2.26 in her freshman year, 2.32 in her sophomore year, 2.47 in her junior year and 2.58 in her senior year, with a class rank of 77 out of 124.  Following high school, the employee attended and completed a 15-month program at 916 Area Vo-Tech in White Bear Lake, Minnesota, as a dental assistant.  The employee worked as a dental assistant for a short time but then left the profession.  Sometime thereafter, she completed a four-week course as a nursing assistant and worked for four or five years in that field.  In September of 1990, the employee began working as a construction laborer. 

 

By report dated May 8, 2000, Dr. Crowe limited the employee to 18 pounds lifting, no sweeping, no working on cement floors and frequent positional changes.  On May 3, 2001, Dr. Crowe stated the employee could perform the physical duties of a building inspector if they included only occasional walking on cement/concrete floors.  The parties stipulated the employee=s physical restrictions were attributable to her November 10, 1997 and May 3, 1999, personal injuries, and were as set forth in the FCE and Dr. Crowe=s office notes of May 8, 2000 and May 3, 2001.

 

On September 27, 2000, QRC Anderson prepared a retraining plan for the employee with the occu­pational goal of becoming a building inspector.  This plan proposed attendance at North Hennepin Community College to obtain a degree as a building inspection technology associate, a 108 week program.  The estimated cost of the plan, excluding wage loss benefits, was approximately $10,000.00.  According to Ms. Anderson, attainment of a degree would enable the employee to take a licensing exam with the State of Minnesota to work as a building inspector.  She anticipated the employee=s salary range as a building inspector would be $35,000.00 to $48,000.00 per year.  The employer and insurer denied approval for the proposed retraining plan.  Thereafter, the QRC filed a rehabilitation request seeking approval of the retraining plan. 

 

L. David Russell, a qualified rehabilitation consultant, conducted a vocational evalu­ation of the employee at the request of the employer and insurer.  He obtained a vocational and per­sonal history from the employee, reviewed her medical records and administered various academic and vocational tests.  Based on these tests, Mr. Russell concluded the employee=s academic abilities fell in the lower one-third of the population and she had particular difficulty in arithmetic ability testing at the eighth percentile.  The employee=s vocational tests reflected relative strength in manual speed, dexterity and word knowledge with weakness in mechanical reasoning, numerical ability, verbal reasoning and clerical perception.  Mr. Russell opined the employee=s performance on certain of the vocational tests evidenced she would likely have difficulty completing the building inspection technology course.  He further opined the employee was unlikely, based on her academic and apti­tude testing, to be able to successfully complete the program in two years.  The QRC testified the employee needed to obtain a license to work as a building inspector which required either formal training or an apprenticeship in one of the construction trades which the employee did not possess.  Mr. Russell performed a labor market survey and found only one job opportunity for a licensed building inspector in the metropolitan area.  Finally, Mr. Russell opined the employee would not be physically capable of performing the duties of a building inspector based on the restrictions set forth in the FCE.  Specifically, he opined the standing, walking, bending, crouching and sustained posture requirements of the job were inconsistent with the FCE.

 

In May 2001, Ms. Anderson requested Jim Postance, a placement specialist, to pre­pare an addendum to the labor market survey.  Ms. Anderson asked Mr. Postance to respond to Mr. Russell=s concerns about the employee=s ability to walk on concrete floors and pass the state licen­sing exam.  Mr. Postance conducted interviews with building inspectors at the State of Minnesota and various cities in the metropolitan area and prepared a report dated May 3, 2001.  Based on this report, QRC Anderson concluded the employee would be physically able to work as a building inspector and would be able to find employment after completing the program.  Ms. Anderson testified the program at North Hennepin Community College would adequately prepare the employee to take a licensing exam with the State of Minnesota to work as a building inspector.  She stated no math was required in the program, and she opined the employee had the aptitude and ability to successfully complete the program.  Ms. Anderson based this opinion on the vocational and aptitude tests she administered to the employee, her personal experience with the employee and her knowl­edge of the employee=s motivation.

 

The case was heard by a compensation judge at the Office of Administrative Hearings.  In a Findings and Order filed July 24, 2001, the judge denied approval of the retraining plan.  The employee appeals.

 

DECISION

 

Factors to be considered in making a determination as to whether retraining is appropriate include:

 

1. the reasonableness of retraining versus a 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 a job obtained after retraining 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. 970 (1989).  An award of retraining benefits is not automatic but must be supported by competent evidence.  Norby v. Arctic Enters., Inc., 305 Minn. 519, 522, 232 N.W.2d 773, 776, 28 W.C.D. 48, 50 (1975).

 

The compensation judge found the employee failed to prove a likelihood of success in the retraining program.  The judge further found the employee failed to prove the retraining program was likely to result in employment. The employee asserts these findings are unsupported by substantial evidence and are clearly erroneous, and asks this court to reverse these findings.

 

QRC Anderson testified that based on the employee=s aptitude tests, she would be able to complete the retraining program.  The employee argues she graduated in the top half of her high school class, completed a 15-month course at 916 Area Vo-Tech as a dental assistant and a four-week course as a nursing assistant.  Sue Smith, a counselor at North Hennepin Community College stated math was not required for the degree in building inspection technology, so the employee=s scores in math were not relative to her potential success.  Ms. Smith opined the employee could be successful in completing the program.^[3]  This evidence, the employee asserts, establishes the employee can succeed in the proposed retraining plan.

 

The employee further argues the evidence establishes a reasonable likelihood of securing employment as a building inspector following completion of the retraining program.  Dr. Crowe opined the employee could work as a building inspector if her duties included only rare to occasional walking on cement floors.  Dr. Ginkel opined the employee was capable of performing the work of a building inspector with the strength classification of light work as defined in the Dictionary of Occupational Titles.  The labor market survey and the addendum establish that jobs would be available to the employee following completion of the retraining program.  Accordingly, the employee contends the compensation judge=s finding to the contrary is clearly erroneous.

 

The employee=s arguments misapprehend our standard of review.  The question is not whether the evidence could support a different result but whether the compensation judge=s findings and order are Aclearly erroneous and unsupported by substantial evidence in view of the entire record as submitted.@  Minn. Stat. ' 176.421, subd. 1.  Substantial evidence supports the compensation judge=s findings if, in the context of the record as a whole, they Aare 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).  In this case, we conclude substantial evidence supports the compensation judge=s findings and the denial of approval for the proposed retraining plan.

 

Mr. Russell opined that based on the employee=s performance on certain of the vocational tests, she would have difficulty completing the building inspection technology course.  He further testified the employee would not be physically capable of performing the duties of a building inspector based upon the restrictions set forth in the FCE.  He testified she would be unable to obtain a license as a building inspector because of a lack of formal training or apprenticeship in one of the construction trades.  The employee does not argue that Mr. Russell=s opinions are inadequately founded.  It is the compensation judge's responsibility, as trier of fact, to resolve conflicts in expert testimony.  Nord v. City of Cook, 360 N.W.2d 337, 342, 37 W.C.D. 364, 372 (Minn. 1985).  Based on our review of the record as a whole, there is substantial evidence to support the decision of the compensation judge, and it must, therefore, be affirmed.