VICTOR J. LUNSMAN, Employee, v. LUNDA CONSTR. and ST. PAUL COS., Employer-Insurer/Appellants, and PRIMARY BEHAVIORAL HEALTH and OPERATING ENG=RS LOCAL 49 HEALTH & WELFARE FUND, Intervenors.

 

WORKERS= COMPENSATION COURT OF APPEALS

APRIL 19, 2002

 

HEADNOTES

 

REHABILITATION - RETRAINING; PRACTICE & PROCEDURE - REMAND.  Where the judge=s decision to approve the proposed retraining plan was most probably influenced by factors not relevant to the issue, and where the judge did not adequately explain his decision in terms of the factors set out in Poole v. Farmstead Foods, 42 W.C.D. 970 (W.C.C.A. 1989), and where the original judge was no longer available to reconsider the retraining request, referral to the Office of Administrative Hearings was necessary for assignment to a new compensation judge for retrial.

 

CAUSATION - PSYCHOLOGICAL INJURY; MEDICAL TREATMENT & EXPENSE - REASONABLE & NECESSARY.  Substantial evidence, including expert opinion, supported the compensation judge=s decision that the employee=s psychological treatment was reasonable, necessary, and causally related to the employee=s work injury.

 

MAXIMUM MEDICAL IMPROVEMENT - SUBSTANTIAL EVIDENCE.  Substantial evidence supported the compensation judge=s decision that the employee reached MMI effective with service of an MMI report with regard to his psychological condition.  The fact that the employee went off work due to his physical condition, as opposed to his psychological condition, is absolutely irrelevant to the issue of MMI.

 

REHABILITATION - COOPERATION.  Substantial evidence, including the testimony of the employee=s QRC, supported the judge=s decision that the employee had fully cooperated with rehabilitation efforts.

 

EARNING CAPACITY - SUBSTANTIAL EVIDENCE.  Substantial evidence supported the compensation judge=s award of temporary partial disability benefits based on the employee=s actual earnings.

 

Affirmed in part, vacated in part, and referred to OAH.

 

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

Compensation Judge:  Gary M. Hall.

 

OPINION

 

DEBRA A. WILSON, Judge

 

The employer and insurer appeal from the compensation judge=s approval of a proposed retraining plan and from his findings regarding the physical suitability of work offered by the employer, maximum medical improvement, cooperation with rehabilitation, and the employee=s earning capacity for purposes of temporary partial disability benefits.  We vacate the judge=s decision on retraining and refer the matter to the Office of Administrative Hearings for rehearing on that issue.  The remainder of the judge=s decision is affirmed.

 

BACKGROUND

 

In late 1980, the employee began working as a heavy equipment operator for Lunda Construction [the employer], a contractor involved in the building of bridges, dams, and highways.  The employee lives in Taylors Falls, Minnesota, and would commute to various job sites, often in the Twin Cities metropolitan area, and often more than fifty miles from his home.

 

On February 21, 1998, the employee sustained an injury to his low back in the course and scope of his employment with the employer.  His weekly wage on this date was $892.80, together with union fringe benefits.  The employee sought chiropractic and then medical treatment for low back and leg pain, but he missed little or no time from work for nearly a year, continuing to perform his usual pre-injury job as a crane operator.  In February of 1999, the employee went off work to undergo physical therapy, returning to his usual job in late April of 1999 and continuing to work in that capacity until October of 1999, when he underwent a discectomy at L4-5, performed by Dr. James Ogilvie.  By this time, the employee had begun receiving rehabilitation assistance from QRC Michael Stern.

 

Medical and rehabilitation records generated prior to the employee=s operation indicate that the employee had hoped to avoid surgery and that he was determined to continue working as a crane operator.  Shortly after the surgery, however, Dr. Ogilvie wrote that it was Avery clear that [the employee] would not be able to return to being a heavy equipment operator, due to his residual back problem,@ and the doctor reportedly discussed the matter with QRC Stern, indicating that the employee needed Aa different vocational plan that would simulate the light duty environment and limit his flexing, bending or twisting and he should not lift more than 20-25 pounds.@  Despite Dr. Ogilvie=s concerns, the employee made several attempts to continue working for the employer, beginning in about February of 2000 and ending in late August of 2000.  During this period, he began receiving psychological treatment from Dr. T. Patrick Cronin, who took him off work for about two weeks in late April. 

 

In July of 2000, after the employee had tried modified work on several cranes, Dr. Ogilvie reiterated that the employee was unable to operate heavy equipment, due to his low back condition,^[1] and imposed a fifty-mile one-way driving limit.  The employee then tried to perform modified work as an Aoiler,@ assisting crane operation by steadying and positioning the crane bucket, among other duties.  Subsequently, in early August of 2000, the employee underwent a functional capacities evaluation [FCE], which indicated that he could lift thirty pounds and carry thirty-five pounds on an occasional basis, could engage in occasional bending, squatting, crawling, crouching, kneeling, balancing, and pushing or pulling, and could sit or stand up to five hours a day, but only at thirty-minute intervals.  According to an on-site job analysis performed a few weeks before the FCE, the modified oiler job was compatible with these restrictions, as least as the job analysis was written up.  The employee had refused, however, to sign the on-site job analysis form and testified that it did not accurately reflect an oiler=s job duties.  He nevertheless returned to this position immediately after the FCE.  The employee testified that, on August 22, 2000, while working on a job site nearly sixty miles from his home,^[2] his supervisor told him that Awe have nothing for you,@ and the employee left work.  The employee also testified that he refused two subsequent offers from the employer because the job sites were beyond his driving limit.

 

On September 12, 2000, a rehabilitation plan amendment and job placement plan and agreement were completed, calling for a job search because all of the employer=s proposed modified jobs were outside of the employee=s fifty-mile driving limit.  In late October of 2000, the employee obtained work, at about $10.00 an hour, as a manager trainee at an Oasis Market in Lino Lakes, but he left that job in mid November because of safety concerns.  On about November 26, 2000, the employee began a job at Conoco in Forest Lake, earning about $8.50 per hour as a cashier.

 

The employee had begun considering the possibility of retraining by the spring of 2000, while still employed by the employer.  After evaluating and ultimately rejecting two other possible retraining areas, the employee settled on a retraining plan calling for course work at Northwestern Electronics Institute [NEI] towards a two-year degree as a computer network technician, at an estimated cost of about $40,000, excluding anticipated wage replacement benefits but including about $13,000 in mileage expenses relating to the necessary fifty-mile one-way commute from the employee=s home to school.  A new retraining plan to this effect was completed in April of 2001.  The employer and insurer did not agree to the proposed plan, contending that retraining was unnecessary and that the employee had refused suitable employment with the employer.

 

The matter came on for hearing before a compensation judge on July 25 and 26, 2001.  Numerous issues were disputed, including whether the employer had offered the employee physically appropriate work, whether the employee had reached maximum medical improvement [MMI], the compensability of Dr. Cronin=s treatment expenses, the employee=s entitlement to temporary total and temporary partial disability, and the employee=s entitlement to retraining.  Evidence included the testimony of the employee, QRC Stern, several representatives of the employer, and David Berdahl, the employer and insurer=s vocational expert, as well as the employee=s medical and rehabilitation records and the reports of Drs. Mark Engasser and John Rauenhorst, the employer and insurer=s independent medical experts.

 

In a decision issued on October 4, 1991, the compensation judge resolved virtually all issues in the employee=s favor, concluding in part that the employee was not able to work as a heavy equipment operator or oiler; that Dr. Cronin=s treatment was reasonable, necessary, and causally related to the employee=s 1998 work injury; that the employee had reached MMI with service of Dr. Rauenhorst=s report effective October 17, 2000; that the employee was entitled to wage loss benefits as claimed; and that the employee was entitled to retraining pursuant to the April 2001 retraining plan.  The employer and insurer appeal.

 

STANDARD OF REVIEW

 

In reviewing cases on appeal, the Workers= Compensation Court of Appeals must determine whether Athe 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 (1992).  Substantial evidence supports the findings if, in the context of the entire record, Athey 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, A[f]actfindings are clearly erroneous only if the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed.@  Northern States Power Co. v. Lyon Food Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975).  Findings of fact should not be disturbed, even though the reviewing court might disagree with them, Aunless they are clearly erroneous in the sense that they are manifestly contrary to the weight of the evidence or not reasonably supported by the evidence as a whole.@  Id.

 

DECISION

 

1.  Suitability of Offered Work

 

In addition to finding that the employee was unable to work as a heavy equipment operator or oiler, the compensation judge found that, given the nature of the employer=s construction business, Amodified work within the employee=s restrictions is not a practical, long term option for this employee,@ going on to find,

 

The employer does have, and did have, modified work available during the periods of claimed disability which ostensibly is within the employee=s restrictions (but often slightly beyond his driving restriction).  However, those modified jobs would regularly put the employee in a position where he would be expected to, or be under pressure to, perform activities beyond his restrictions.  And, even with strict adherence to the employee=s restrictions, the positions are not likely to result in a successful long-term return to work.

 

On appeal, the employer and insurer contend that substantial evidence does not support the judge=s decision about the availability of suitable work with the employer.  Certainly there is evidence that supports the employer and insurer=s position on this issue; for example, some evidence of record indicates that the employee failed to notify the employer about problems he was having with work despite being told to do so, and the employee=s QRC admitted that the modified oiler position was compatible with the restrictions established by the employee=s August 2000 FCE.  In the end, however, the compensation judge was evidently persuaded by the employee=s testimony that it was not reasonably possible for him to stay within his restrictions given the work that was expected of him.  As a credibility determination, the judge=s decision to this effect is entitled to substantial deference from this court, see Even v. Kraft, Inc., 445 N.W.2d 831, 42 W.C.D. 220 (Minn. 1989), and we see nothing in the record that would justify reversal.^[3]  The fact that there is evidence that would support a different inference is not the issue on appeal.  See Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 37 W.C.D. 235 (Minn. 1984).  Similarly, the fact that the employer may have made every effort to provide the employee with physically appropriate work is commendable but not determinative.  Because substantial evidence supports the compensation judge=s conclusion that the employer=s offered work was not physically suitable, we affirm.

 

2.  Psychological Treatment

 

The compensation judge concluded that Dr. Cronin=s psychological treatment was reasonable, necessary, and causally related to the employee=s work injury.  The employer and insurer appeal, arguing that, pursuant to Poppitz v. Minnegasco, slip op. (W.C.C.A. Nov. 30, 1992), the disputed treatment was not compensable because the employee=s need for this treatment was related to his concerns over his career and the unavailability of suitable work at the employer, not to his work injury per se.  We are not persuaded.  Dr. Cronin=s treatment records contain numerous references to pain complaints and related difficulty sleeping.  Moreover, Dr. Cronin reported that the employee=s psychological condition was directly related to his work injury.  While Dr. Rauenhorst disagreed, the compensation judge was entitled to accept the opinion of Dr. Cronin on this issue.  Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985).  We therefore affirm the judge=s award of treatment expenses related to the employee=s psychological condition.

 

3.  MMI

 

The compensation judge concluded that the employee had reached MMI from the effects of his work injury with service of Dr. Rauenhorst=s report, on October 17, 2000, which indicated that the employee had reached MMI from his psychological condition.  On appeal, the employer and insurer contend that the judge erred by failing to find MMI effective with service of Dr. Ogilvie=s report on July 25, 2000.  The employer and insurer base their argument on this point on the fact that it was the employee=s physical condition, and not his psychological condition, that kept him from working at the employer.  However, this contention, true or not, is simply irrelevant to the issue of when the employee reached Athe date after which no further significant recovery from or significant lasting improvement to a personal injury can reasonably be anticipated, based upon reasonable medical probability.@  Minn. Stat. ' 176.011, subd. 25.  MMI is a finding of ultimate fact, see Hammer v. Mark Hagen Plumbing & Heating, 435 N.W.2d 525, 41 W.C.D. 634 (Minn. 1989), and there is no basis to overturn the judge=s decision here.  We therefore affirm.

 

4.  Cooperation with Rehabilitation/Job Search

 

The compensation judge concluded that the employee had Afully cooperated with rehabilitation efforts and has shown considerable determination in his attempts to return to work, including requesting what was essentially a demotion to >oiler= in an unsuccessful attempt to keep working for this employer.@  The employer and insurer contend that substantial evidence does not support the judge=s decision, because the employee made up his mind about retraining early on, well prior to leaving the employer, and because the employee did not tell anyone about the physical problems he was allegedly having with his job at the employer.  These facts, the employer and insurer assert, lead to the conclusion that the employee did not make a good faith effort to return to work for the employer.  We are not persuaded.  The employee=s QRC testified that the employee had Abent over backwards cooperating with rehabilitation@ because at Avirtually every stage@ the employee had tried to return to work for the employer, Aoften against medical advice.@  Given the QRC=s testimony, the judge=s finding as to the employee=s cooperation with rehabilitation is easily supported by substantial evidence in the record.

 

The employer and insurer also contend that the judge=s award of temporary total disability benefits from August 22, 2000, through October 22, 2000, must be reversed because the employee failed to make a diligent job search during this period.  We disagree.  The employee=s rehabilitation records indicate that Dr. Cronin had the employee totally off work due to his psychological condition for a portion of this period.  Moreover, when an employee has rehabilitation assistance, entitlement to temporary total disability benefits depends not so much on job search as on cooperation with rehabilitation.  See Bauer v. Winco/Energex, 42 W.C.D. 762 (W.C.C.A. 1989).  There is no evidence in the record that the employee failed to cooperate in any way with the efforts of his QRC after August 22, 2000.  The judge=s award of temporary total disability benefits is therefore also affirmed.

 

5.  Earning Capacity/Temporary Partial Disability Benefits

 

The compensation judge concluded that the employee was entitled to temporary partial disability benefits based on his actual earnings while employed by Oasis Market and Conoco.  The employer and insurer=s sole argument with regard to this award is that, because the employee could have continued working for the employer with no wage loss, his earnings at Conoco and Oasis Market are not representative of his earning capacity.  However, we have already affirmed the judge=s decision that the jobs offered to the employee by the employer were not within his restrictions.  As such, and because actual earnings are presumptively representative of an injured employee=s loss of earning capacity, see Roberts v. Motor Cargo, Inc., 258 Minn. 425, 104 N.W.2d 546, 21 W.C.D. 314 (1960), we affirm the compensation judge=s temporary partial disability benefit award.

 

6.  Retraining

 

Pursuant to Minn. Stat. ' 176.102, subd. 1(b),

 

(b) Rehabilitation is intended to restore the injured employee so the employee may return to a job related to the employee=s former employment or to a job in another work area which produces an economic status as close as possible to that the employee would have enjoyed without disability.  Rehabilitation to a job with a higher economic status than would have occurred without disability is permitted if it can be demonstrated that this rehabilitation is necessary to increase the likelihood of reemployment.  Economic status is to be measured not only by opportunity for immediate income but also by opportunity for future income.

 

According to the corresponding rules, A[r]etraining is to be given equal consideration with other rehabilitation services, and proposed for approval if other considered services are not likely to lead to suitable employment.@  Minn. R. 5220.0750, subp. 1.  Factors relevant in evaluating the propriety of a proposal for retraining include (1) the reasonableness of retraining as compared to job placement activities or the employee=s return to work with the employer; (2) the likelihood that the employee has the abilities and interest to succeed in the proposed formal course of study; (3) the likelihood that retraining will result in reasonably obtainable employment; and (4) the likelihood that retraining will produce an economic status as close as possible to that which the employee would have enjoyed without the disability.  See, e.g., Poole v. Farmstead Foods, 42 W.C.D. 970 (W.C.C.A. 1989).

 

In the present case, the compensation judge acknowledged that Athe retraining issue [was] a close call@ and that the proposed plan was not a Aperfect fit,@ but he accepted the opinion of QRC Stern over the opinion of vocational expert Berdahl as to Athe futility of additional job search, the recommended retraining, and the labor market survey.@  We conclude, under the particular circumstances of this case, that the issue must be retried.

 

Review of the judge=s memorandum indicates that his decision in this very close case was materially influenced by considerations not pertinent to the issue before him.  Specifically, the judge wrote,

 

The employee was a high wage earner and job search alone is not likely to result in economically appropriate employment.  Prior to the statutory cap on Temporary Partial Disability benefits and the statutory time limits on requesting retraining, this was the type of case where more time might have been taken to explore less costly alternatives before approving retraining.  However, given the necessity to request retraining at a relatively early stage (and the uncertainty regarding how to toll the time period), and given the cap on Temporary Partial Disability benefits, the long term economic consequences of delaying retraining has become a more important consideration.

 

The retraining plan has some drawbacks but it is the best option available to this employee at this time.  The employee is only 49 years old and has many productive working years ahead of him.  Having considered the factors set forth in Poole v. Farmstead Foods, 42 W.C.D. 970 (W.C.C.A. 1989) this court has determined that the retraining plan should be approved.

 

It is questionable at best whether the cap on temporary partial disability benefits is relevant to the issue of whether retraining should be investigated as a rehabilitation option.  It is absolutely clear, however, that eligibility for temporary partial disability benefits has no bearing whatsoever on whether a particular retraining plan is reasonably likely to restore an injured employee=s lost earning capacity.

 

This is not a case where the proposed retraining plan is obviously appropriate.  The school is fifty miles from the employee=s home, at the outer edge of his driving limit, and there is evidence that there are other schools that would not require such a long commute.  The employee=s QRC himself has expressed Adoubts@ about the networking part of the degree -- the focus of the proposed retraining program -- because network technician jobs require lifting significantly beyond the employee=s restrictions.^[4]  We see no evidence that the employee and the QRC ever looked at other, possibly less expensive programs that would lead to a degree in an area where the employee=s job opportunities would not be significantly reduced, at the outset, by his limitations.  There is also a substantial amount of evidence that the field for which the employee seeks retraining is or will be glutted, raising concerns about the likelihood of the employee obtaining employment upon completion of the program.  Even if jobs are available, he will almost certainly be required to relocate in order to obtain work within his fifty-mile driving limit.  Finally, according to the employer=s estimate, this retraining program will cost about $100,000 once wage loss benefits are figured in.  Given the questions about the likelihood of the employee obtaining work after completion of the program, the anticipated cost may be viewed as a significant consideration.  We note these factors not to suggest that the proposed retraining program is unreasonable as a matter of law but to illustrate that the compensation judge=s unwarranted concern about the availability of temporary partial disability benefits in all probability tipped the scale, in his mind, toward approval of this particular plan, despite the clear drawbacks.  We would also observe that, while the compensation judge indicated that he had considered the factors specified in Poole, he provided almost no explanation as to how he weighed the evidence relevant to those factors.  As such, the judge=s conclusory statement is insufficient to allow adequate appellate review of the issue.

 

Under other circumstances, we would remand the issue to the compensation judge for reconsideration without reference to the availability of temporary partial disability benefits and for further explanation regarding his analysis of the facts in relation to the Poole factors.  However, the judge who originally heard this is no longer available.  Therefore, and because witness credibility may be significant,^[5] we vacate all findings and orders on the issue of retraining and refer the matter to the Office of Administrative Hearings for assignment to a compensation judge for retrial on that issue.