MICHAEL S. SCHULTZ, Employee, v. POTLATCH, SELF-INSURED/COMPCOST, Employer/Appellant.

 

WORKERS= COMPENSATION COURT OF APPEALS

MAY 2, 2002

                                                                             

HEADNOTES

 

REHABILITATION - RETRAINING.  Substantial evidence supports the compensation judge=s approval of the proposed retraining program where there was no persuasive evidence that job search would return the employee to his pre-injury economic status.

 

Affirmed.

 

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

Compensation Judge: Carol A. Eckersen

 

 

OPINION

 

DAVID A. STOFFERAHN, Judge

 

The self-insured employer appeals from the compensation judge=s order approving the employee=s retraining plan.  We affirm.

 

BACKGROUND

 

The employee, Michael S. Schultz, was born June 30, 1966, and was 35 years old on the date of hearing.  The employee graduated from high school in 1984 and thereafter took classes at Northeast Wisconsin Technical College in Green Bay, Wisconsin.  He earned diplomas in industrial mechanics, machine tooling techniques and machine tool operations, acquiring 99.4 credits with a cumulative GPA of 3.543.  Before his employment with Potlatch, Mr. Schultz had work experience as a tool room attendant, screw machine operator, turret lathe operator, maintenance mechanic and millwright.  The employee=s last employment before Potlatch was with Kohler Company at their brass foundry in Wisconsin.  There he was diagnosed with contact dermatitis from exposure to molten metal.

 

The employee left Kohler Company and obtained employment with Potlatch Corporation in Grand Rapids, Minnesota, in early 1999.  He was employed initially as a millwright, responsible for the maintenance and repair of machinery in the plant.  He then became a machinist millwright in which position he would create or manufacture parts needed for the maintenance and repair of machinery.

 

The employee was first seen for treatment at Grand Rapids Medical Associates on April 6, 1999, when he consulted with Dr. Scott Gerling.  His history on that date noted a problem with wheezing and coughing for the past seven weeks.  No family history of asthma was reported and it was noted that the employee was working around chemicals with a formaldehyde base.  An initial assessment of bronchospasm was made and Dr. Gerling placed the employee on Albuterol along with a tapering dose of Prednisone.  When the employee returned for a recheck on April 13, 1999, he reported that he felt much better and the doctor noted on that date that the employee=s lungs were clear.

 

The employee returned to the clinic on May 25, 1999, with complaints of wheezing, as well as a rash from chemicals at work.  A prescription for Zyrtec was given and samples of Azmacort and Serevent were provided.  On recheck on June 1, 1999, the employee stated he was not doing well with his breathing problems.  Dr. Gerling agreed with the employee=s conclusion that his symptoms were related to exposure to resins at work.  Use of a cartridge type respirator was recommended and it was noted that if this was not successful, the employee Amay need to get totally out of that work environment.@  Dr. Gerling=s diagnosis was reactive airways disease.

 

The employee saw Dr. Gerling again on June 21, 1999.  At that time the employee said that there had been a fire at the plant and water used to put out the fire had mixed with the resins used in the plant.  The mixture soaked through his clothing and he developed a rash on his torso, arms and face.  Dr. Gerling identified this as a severe reaction and noted that further restrictions might be necessary.  On July 17, 1999, when the employee returned to the clinic, his history was that the itching was so bad that he had trouble sleeping.  A rash was noted in the areas around his neck and in the folds on his arms and legs.  The employee saw Dr. Gerling twice more in the summer of 1999.  The records from the last visit on August 21, 1999, indicated that the employee was trying to work in a different area of the plant to minimize exposure and he was wearing protective clothing.  He was still getting significant resin dust reaction.  A note was written to Potlatch Corporation advising that the employee not work in an area where there was a high resin dust count. 

 

The employee was referred to an occupational medicine specialist, Dr. Jacob Kammer, at St. Luke=s Occupational Health and Medicine in Duluth, and was seen by Dr. Kammer for the first time on July 19, 1999.  Dr. Kammer diagnosed allergic contact dermatitis, changed one of the employee=s medicines and recommended that the employee minimize his exposure to resin.  The employee returned to Dr. Kammer on September 13, 1999, and at that time was referred for allergy testing to Dr. Walter Ryan at Allergy and Immunology at St. Luke=s Clinic.  Dr. Ryan did patch testing and reported that the testing was positive for balsam of Peru, fragrance mix, face resin, and core resin.  The employee was sent back for treatment to Dr. Kammer.

 

The employee returned to Dr. Kammer for follow-up of his occupational asthma and allergic contact dermatitis on October 11, 1999.  The employee noted increased symptoms when he was working in the resin area of the plant.  He was attempting to minimize his exposure to some of the resins by wearing turtleneck sweaters.  He still noticed problems with asthma when in the plant.  The employee returned again to Dr. Kammer on December 30, 1999, and reported that his rash was significantly worse.  Examination by Dr. Kammer on that date showed severe contact dermatitis involving the face around the eyes and extending into the neck on the anterior and posterior aspects.  Areas of contact dermatitis with erythemia were also found on both hands and behind both knees.  Dr. Kammer took the employee off work until re-examination on January 10, 2000.  On January 10, 2000, Dr. Kammer noted improvement in the dermatitis.  By a letter of that date, Dr. Kammer advised Potlatch that the employee would not be able to continue working at the plant because of his allergy.

 

The self-insured employer accepted the employee=s condition as work-related with an effective date of injury of June 1, 1999.  The parties have agreed that the employee=s average weekly wage on that date was $784.40.  After the employee stopped working at Potlatch, the parties agreed to a rehabilitation consultation performed by QRC Kandise Garrison.  Ms. Garrison met with the employee and concluded he was eligible for rehabilitation services.  Ms. Garrison then became the employee=s QRC.  On February 7, 2000, she and the employee met with Dr. Kammer to discuss return to work options. 

 

Dr. Kammer in his office notes of that date stated

 

I expressed my opinion that any type of industrial setting in the future may lead to allergies with other industrial chemicals and other resins.  Certainly a job where he is exposed to formaldehyde or any other type of pollen or resin should be avoided.  It is impossible to test for all of the different possible chemicals that he could be exposed to.  This would be impractical and also with the changes in industrial technology, new chemicals will be made available and it is impossible to predict exactly what chemicals he will become sensitized to.  I have recommended that training as a teacher or some type of job in a similar capacity would be the most appropriate for him and would minimize the possibility of exposure to other allergens that could cause a problem in the future.

 

Based upon those recommendations, Ms. Garrison prepared an R-2, rehabilitation plan, which noted that return to work at Potlatch had been ruled out for medical reasons.  The plan called for return to work with a new employer either through job search or through retraining.  The claims adjuster refused to sign a plan which referred to retraining.  The employee refused to sign a plan which excluded retraining so no rehabilitation plan was ever approved.  Instead, the employee initiated job search under the auspices of a job placement plan and agreement and with the assistance of a job placement specialist.  The parties agreed to a job search with an $8.00 to $10.00 per hour wage since the QRC and placement specialist agreed that this was the wage the employee was likely to find through job search.

 

The employee began job search in mid-February 2000.  The employee located a job at Ruttger=s Resort in Grand Rapids and began working there on March 27, 2000, as a maintenance person earning $9.00 per hour.  The job search was placed on hold at that time.  The employee remained employed at Ruttger=s as of the date of hearing.

 

An administrative conference pursuant to Minn. Stat. ' 176.106 was held by the Department of Labor and Industry on May 31, 2000, to deal with a rehabilitation request filed by the employee, which sought a change in the rehabilitation plan to include retraining.  In a Decision and Order served and filed June 2, 2000, the employee=s request was approved.  No appeal was taken from this Decision and Order.

 

The employee was seen for an IME on July 13, 2000, by Richard Roach, M.D., who identified his area of practice in his report as Aoccupational medicine.@  In his report, Dr. Roach briefly summarized the history and examination and then provided his impression that the employee had a resin allergy reaction both in terms of bronchospasm and skin irritation and that the employee has had an Aindustrial asthma situation.@  Dr. Roach restricted the employee from employment which would require contact with the specific elements to which he had been found to be allergic and he also restricted the employee from dusty environments.  Within those restrictions, Dr. Roach allowed the employee to work as a machinist or millwright. 

 

After rehabilitation began, Dr. Kammer was asked a number of times about the restrictions to be placed on the employee and whether the employee could work in an industrial setting if the employee did not come into contact with the known allergens.  In a report of April 10, 2000, Dr. Kammer recommended that the employee avoid industrial settings where he would come into contact with allergens and also indicated that the employee was at an increased risk of developing future allergies to other industrial materials.  After the insurer raised the question of whether Dr. Kammer=s report would allow the employee to work in industrial settings that did not contain the specific allergens, the QRC contacted Dr. Kammer for clarification.  In a fax to the QRC on May 23, 2000, Dr. Kammer stated that the employee was predisposed to allergies to other industrial metals or chemicals.  He added Aavoiding industrial settings would be the safe way to go.  This would minimize the chance of being sensitized in the future.@

 

The QRC prepared and sent to the parties a retraining plan for the employee on February 6, 2001.  The plan called for the employee to be retrained as an industrial technology instructor through a 143-week program at Bemidji State University.  Appended to the plan were the results of a labor market survey which indicated average earnings for this position at $41,000.00 per year and a report of January 30, 2001 from Dr. Kammer in which he approved the plan from a medical standpoint. 

 

The employer refused to accept the plan and the employee=s attorney filed a rehabilitation request seeking approval of the program.  An administrative conference under Minn. Stat. ' 176.106, was held by the Department of Labor and Industry on May 31, 2001.  A Decision and Order approving the retraining plan was served and filed June 14, 2001 and the employer filed a request for formal hearing.

 

At the request of the employer, the employee was seen for an independent vocational assessment by Richard VanWagner on May 25, 2001.  Mr. VanWagner took a medical and vocational history from the employee, conducted some vocational testing and performed labor market research.  Mr. VanWagner also testified by deposition for the hearing.  Mr. VanWagner concluded that retraining was not necessary for the employee to return to pre-injury economic status.  According to Mr. VanWagner, if the employee were to relocate to the Twin Cities labor market and engage in a job search in the area of maintenance mechanic, he would be able to replace his pre-injury wage.  Mr. VanWagner=s report identified a number of potential employers in the metropolitan area.  His report indicated that he contacted human resource personnel who did not provide any details as to the nature or extent of chemical exposure.  Mr. VanWagner also recommended an alternate retraining program for the employee. 

 

The hearing on the employee=s retraining claim was held before Compensation Judge Carol Eckersen on September 19, 2001.  The employee testified that he would be concerned about any job in an industrial setting because of his experience that chemical exposure is involved with any type of industrial employment.  The employee also indicated that he would be willing to relocate from the Grand Rapids area after completing the retraining program at Bemidji State if it were necessary in order to find appropriate employment.  Although his symptoms have improved since his departure from Potlatch, he continues to avoid many shampoos and soaps because of reactions, does not take hot showers as that aggravates his skin condition and does not use waterless cleaners because of the solvents involved in them.  He has noted problems with breathing after exposure to campfire smoke and citronella candles. 

 

The QRC testified of her meeting with the employee and Dr. Kammer in February 2000.  After that conversation, she concluded, based upon her 18-year familiarity with the labor market in northern Minnesota, that job search would not result in suitable employment and that retraining should be considered.  The goal would be to minimize the risk associated with exposure to chemicals and a job as industrial technology teacher was considered consistent with that goal.  The employee was asked to gather information to compare different programs.  The QRC also met with people at Bemidji State University for review of that program.  The QRC concluded that there was a shortage of teachers in the field, it was a field of anticipated growth, and the median wage of $41,000.00 would replace the employee=s pre-injury earnings. 

 

In her Findings and Order served and filed October 25, 2001, the compensation judge concluded the employee was entitled to retraining benefits and approved the employee=s claim for retraining as an industrial arts secondary school teacher.

 

DECISION

 

This court has enunciated four factors to consider in evaluating a proposed retraining plan: (1) the reasonableness of retraining as compared to job placement; (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.  Poole v. Farmstead Foods, 42 W.C.D. 970 (W.C.C.A. 1989).

 

In the present case, the only factor in dispute on appeal is the first factor, the reasonableness of retraining as compared to job search.^[1]  Specifically, the employer argues that since the employee has indicated his willingness to relocate after retraining, he should be found to have waived the requirement that job search be limited to a 50-mile radius from the employee=s home.  According to the employer, if the employee were to expand his job search beyond that radius, physically appropriate employment which would return the employee to his pre-injury economic status is available and retraining would not be necessary.

 

The compensation judge accepted the opinion of Dr. Kammer concerning the restrictions to be followed in placing the employee in a job.  According to Dr. Kammer the employee should avoid industrial settings which may involve exposure to chemicals.  Although the employee has tested positive to only a limited number of chemicals at this time, Dr. Kammer recommends avoidance of industrial chemicals to prevent the employee from becoming further sensitized.  Acceptance of a medical opinion as to restrictions is within the province of the compensation judge.  Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985).

 

The evidence submitted by the employer of suitable employment to be found through job search is in the report and deposition testimony of its vocational expert, Richard VanWagner.  Mr. VanWagner performed a labor market survey of possible employment in the Twin Cities labor market.  The six positions identified were jobs as a maintenance mechanic, manufacturing technician, mechanical machine maintenance, maintenance technician, and manufacturing area mechanic.  All positions were in industrial settings and in no instance was there any information as to the extent of chemical exposure.  The compensation judge concluded that this evidence was not persuasive that the employee would be able to find physically suitable employment through continued job search even if he extended his job search beyond the 50-mile radius.

 

Since the compensation judge has determined that further job search is not appropriate in this case, we do not reach the question of whether the geographic area of the employee should be extended.  The decision of the compensation judge is affirmed.  Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 59, 37 W.C.D. 235, 239 (Minn. 1984).