THOMAS ROWBOTTOM, Employee, v. LTV STEEL MINING CO. and AMERICAN INT=L GROUP/SEDGWICK CLAIMS MANAGEMENT SERVS., INC., Employer-Insurer.

 

WORKERS= COMPENSATION COURT OF APPEALS

JANUARY 27, 2003

 

HEADNOTES

 

RETRAINING - SUBSTANTIAL EVIDENCE.  Where the compensation judge=s memorandum specifically discusses the alternative retraining suggestions proposed by the employer and insurer and explains the judge=s reasoning in approving the proposed four-year plan, the compensation judge did not err by failing to consider the retraining alternatives.  Substantial evidence supports the finding that the requested four‑year retraining program was reasonably necessary to restore the employee=s lost earning capacity. 

 

PERMANENT PARTIAL DISABILITY; CAUSATION - SUBSTANTIAL EVIDENCE.  Substantial evidence, including expert medical opinion, supported the compensation judge=s finding that the employee=s altered gait following two knee surgeries was a substantial contributing cause in the emergence of his low back symptoms, so as to support the judge=s award of permanent partial disability compensation for the low back condition.

 

Affirmed.

 

Determined by Pederson, J, Rykken, J., and Stofferahn, J.

Compensation Judge: Gregory A. Bonovetz

 

       OPINION

 

DAVID A. STOFFERAHN, Judge

 

The employer and insurer appeal from the approval of a four-year retraining plan and from the percentage rating of permanent partial disability awarded to the employee.  We affirm, as modified.

 

BACKGROUND

 

The employee, Thomas Rowbottom, was born in Virginia, Minnesota, in 1961.  After graduating from high school in 1980, he worked as an assistant manager at a Pizza Hut for about a year and then worked as a drill rigger in Louisiana for about a year before returning to Virginia,  where he worked as construction laborer for Picek Construction.  In February 1982 the employee enlisted in the United States Army.  While in the Army, the employee was trained in chemical equipment repair and worked repairing and inspecting equipment and later in setting up various battalion and company training programs.  During the period of his military service, the employee also attended two semesters at Central Texas College in the field of applied management, but did not complete this program area as he was reassigned to military duty in Germany.

 

After leaving the Army, the employee began working for the employer, LTV Steel Mining Company.  The employee=s initial job for the employer was as a laborer, which involved  shoveling, sweeping, pushing wheelbarrows, unplugging hoppers and crushers, running a jackhammer and driving a dump truck.   The employee was subsequently promoted to work as a fine crusher helper and then as a fine crusher attendant.  After about two years at LTV the employee underwent company training as a millwright apprentice which resulted in a promotion and substantial pay increase.  

 

On September 14, 1995, the employee was working on a ladder repairing a crusher  when the ladder slipped and he fell about six feet onto his back.  At the same time, his right foot caught in the rung of the ladder twisting the employee=s knee.  The employee continued to work over the next several weeks but his knee continued to worsen, so on November 3, 1995 he went to see Dr. Joel Zamzow, who diagnosed a probable medial meniscus tear in the right knee.  An MRI scan on January 23, 1996 confirmed the presence of a meniscus tear, and the employee underwent arthroscopic surgery to the right knee on February 19, 1996. 

 

The employee continued to have pain in his knee and a repeat MRI performed on November 19, 1997 revealed full thickness erosion of the articular cartilage, medial condyle, and underlying medial tibial plateau, accompanied by edema and a subcortical cyst.  The employee was  referred to several specialists and eventually underwent a right knee proximal tibial distraction osteotomy on July 28, 1998.  The employer admitted and paid permanent partial disability compensation for a six percent disability related to the employee=s knee condition.

 

By April 1999, the employee was reporting low back pain and stiffness, which seemed to be worsening.  Dr. Zamzow opined that this was probably the result of altered gait following recovery from his knee surgery.  By October 1999, the employee had also begun to experience numbness and tingling into his right leg and foot.  On December 10, 1999, Dr. Zamzow noted that the employee probably had a herniated disc at L4-5, with clinical signs of L5 radiculopathy.  He recommended an MRI scan and again opined that the employee=s low back and leg symptoms were related to gait alteration following the employee=s knee surgeries.  The MRI scan, performed on February 16, 2000, revealed a moderate-sized disc protrusion at L4-5 with left L5 nerve root impingement.

 

The employee had reached maximum medical improvement from both the knee and low back conditions by May 11, 2001.  He has been given significant medical restrictions as a result of these conditions which limit him to light work.

 

Following various periods off work the employee returned to work for the employer in January 1999 as a millwright.  The employer accommodated his restrictions and the employee primarily did bench work until January 2001, when the employer=s business closed down.  After the plant shutdown, the employee sought other work with the assistance of a QRC, but found only part-time work 12 to 16 hours per week driving a bakery delivery van at a pay rate of $4.90 per hour.  The employee=s weekly wage on the date of injury was $818.24.   The employee and his QRC developed  a four‑year retraining plan proposing that the employee obtain a bachelor=s degree in computer science/information systems from the College of St. Scholastica.  The employer and insurer agreed that retraining was appropriate but disagreed with the specific plan proposed by the employee as unduly protracted and expensive. 

 

On June 27, 2002, a compensation judge of the Office of Administrative Hearings

considered the employee=s request for approval of the proposed retraining plan.  In addition, the compensation judge considered the issue of the extent of any permanent partial disability the employee sustained to his low back as a result of the 1995 work injury.  Following the hearing, the compensation judge approved the proposed retraining plan and found that the employee had sustained a 14 percent whole-body permanent partial disability to the low back.  The employer and insurer appeal.

 

DECISION

 

1. Retraining.

 

The compensation judge approved the employee=s proposed four‑year retraining plan for a bachelor=s degree in computer science/information systems at the College of St. Scholastica.

The employer and insurer agree that the employee should be retrained, but argue on appeal that insufficient consideration was given to exploring whether a shorter and less expensive alternative plan might adequately achieve the goals of retraining. 

 

Retraining an injured worker in another occupation may be appropriate if the retraining "will materially assist the employee in restoring his impaired capacity to earn a livelihood."  Norby v. Arctic Enters., Inc. 305 Minn. 519, 521, 232 N.W.2d 773, 775, 28 W.C.D. 48, 50 (1975).  Factors to consider when reviewing a proposed plan of retraining include: (1) the reasonableness of retraining as compared to returning to work with employer or other job placement activities, (2) the likelihood that employee has the ability and interest to succeed in a formal course of study in a school, (3) whether retraining is likely to result in reasonably attainable employment, and (4) whether retraining is likely to produce an economic status as close as possible to that which the employee would have enjoyed without disability.  Poole v. Farmstead Foods, 42 W.C.D. 970, 978 (W.C.C.A. 1989).  Generally, the propriety of a proposed retraining plan is a fact issue for the compensation judge, and this court thus must affirm the compensation judge=s determination where the judge=s application of the Poole factors is supported by substantial evidence.  E.g., Anderson v. Metropolitan Mechanical Contractors, slip op. (W.C.C.A. Oct. 19, 1999). 

 

We have examined the record and conclude that there was substantial evidence supporting approval of the retraining plan when viewed in the context of the Poole factors, including expert vocational opinion offered by the employee=s QRC.  The appellants do not claim in their brief that substantial evidence is absent to support the compensation judge=s consideration and application of the Poole factors.  Instead, they argue that the retraining plan should not have been adopted without further consideration of other less expensive retraining options.  Accordingly, we do not need here to review in detail the specific evidence relating to the application of the Poole factors to the plan proposed by the employee.  Rather, we consider the question of whether the compensation judge failed to adequately consider other potentially less expensive retraining options which were suggested by the employer and insurer and their vocational expert.

 

In Kunferman v. Ford Motor Co., 55 W.C.D. 464 (W.C.C.A. 1996), we held that refusal by a compensation judge to consider alternative retraining plans proposed by the employer and insurer constitutes error.  Where alternative retraining plans are proposed, the compensation judge must consider not only the proposed retraining plan but also any proposed alternatives  in light of the Poole factors and compare the plans, considering the relative costs, duration, and effectiveness of the various programs in returning the employee to an economic status as close as possible to that which would have been enjoyed but for the injury and consequent disability. 

 

In the present case, while the employer and insurer did not offer a specific retraining plan, they contended, both in argument and through the testimony of their rehabilitation expert, that a two-year degree in computer programming or a related field might be sufficient to restore the employee=s lost economic status, but at a significantly reduced expense.  We note, however, that the suggestion of a two-year program was primarily discussed in the abstract by the employer and insurer=s vocational expert and no information was submitted about any specific program documenting whether it was available in the employee=s geographic area, what it would cost, or what identifiable employment and salary prospects it provided to its graduates.  This was in direct contrast to the more specific evidence submitted in support of the employee=s proposed retraining plan.   In addition, the employee=s QRC testified that the possibility of a two-year degree was considered during preparation of the proposed retraining plan, but that no two-year program was available in the employee=s geographic area which would meet the objectives of rehabilitation.  The compensation judge expressly accepted the expert opinion of the employee=s QRC on this issue. 

 

The compensation judge=s memorandum specifically discusses the alternative retraining suggestions proposed by the employer and insurer, and explains the judge=s reasoning in approving the proposed four-year plan.  Unlike the compensation judge in Kunferman, the compensation judge in this case clearly did review and consider the alternatives offered by the employer and insurer.  After considering the evidence and these alternatives, the compensation judge concluded that the employee had proven that the requested four‑year retraining program was reasonably necessary to restore the employee=s lost earning capacity.  Substantial evidence supports this finding.  The compensation judge did not err by failing to consider the employer and insurer=s alternative programs.

 

The employer and insurer also object on appeal to the inclusion of the costs of a computer to be purchased for the employee=s use as part of the proposed retraining plan.  The compensation judge accepted the employee=s testimony that his current home computer was outmoded and was used by other family members, including his college-age son.  The compensation judge accepted the recommendation of the employee=s QRC as expressed in the proposed retraining plan to the effect that a more up-to-date computer for the employee=s exclusive use was reasonably necessary to assist him in completing the course work for the proposed degree in computer programming.  We cannot conclude that the compensation judge erred in so finding, particularly as we note that the proposed retraining plan involves a long daily commute for the employee, so that student computer facilities which might be available at the college are not likely to be readily available to the employee in completing his course work.

 

Finally, the appellants object to the fact that the employee=s retraining plan does not specifically state that the employee must consider relocation after completion of the retraining should it be necessary to find employment which meets the objectives of the retraining, although the employee=s asserted willingness to do so formed a part of the basis for the evidence of the post-retraining earnings potential offered by the retraining plan. They argue that the employee=s willingness to relocate to obtain appropriate employment after completing the retraining plan may be crucial to the plan=s effectiveness in meeting the goals of retraining, and that the employee=s testimony that he will relocate if necessary to obtain suitable work after retraining should be made an explicit part of the plan itself.  We do not believe that it is necessary for this court to order modification of the retraining plan to include such language.  The employer and insurer=s argument clearly relates to concerns over whether the employee might seek wage loss benefits following retraining for a wage loss which, in their view, might result in whole or in part from a failure on the part of the employee to obtain economically suitable work following retraining without relocation.  As such, the employer and insurer=s concerns are speculative and not properly at issue as part of this appeal.

 

2. Permanency Rating.

 

Dr. Zamzow opined that the employee=s low back symptoms likely resulted in part from his altered gait following his right knee surgeries.  He opined that Minn. R. 5223.0390, subp.

 3.C.1,^[1] and Minn. R.5223.0390, subp. 4.C.1,^[2] were each applicable to the employee=s low back condition.  Each of these rules provide a seven percent permanency rating.  The compensation judge accepted Dr. Zamzow=s opinion with respect to causation, and also accepted his permanency ratings, and awarded the employee permanent partial disability to the extent of 14 percent. 

 

The employer and insurer raise two issues regarding the permanency rating assigned to the employee=s permanent partial disability by the compensation judge.  First, they contend that the compensation judge erred in finding a causal relationship between the employee=s low back complaints and his 1995 work injury.  They argue that there is no medical basis to presume that the employee=s altered gait resulted in a traumatic injury in the form a herniated disc.  They contend that the compensation judge should have accepted the view of their medical expert, Dr. Richard Strand, who opined that the employee=s low back symptoms were unrelated to his work injury and were merely coincidental. 

 

We note that the compensation judge found, in essence, that the employee=s altered gait was a substantial contributing cause of the development of the employee=s low back symptoms, not of his underlying herniation.  We cannot conclude that the judge clearly erred in accepting Dr. Zamzow=s opinion that the employee=s altered gait following his knee surgeries was a substantial contributing cause of emergence of his low back symptoms.   The compensation judge=s findings were based primarily on his choice between two differing expert medical opinions, a choice which this court must affirm unless the opinion relied upon was without adequate foundation.  Nord  v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985).  No foundational defect has been alleged here, and none is apparent.  We therefore affirm the causation finding. 

 

Secondly, the employer and insurer point out that, pursuant to Minn. R. 5223.0390, subp. 1, ratings under subparts 2 and 3 of the rule are mutually exclusive and cannot be combined into a single rating.  Thus, they contend that the compensation judge erred in combining impairments under these two subparts to provide a 14 percent permanency rating and argue that, even if a permanency award for the employee=s low back condition is appropriate, that award should have been limited to a seven percent permanent partial disability.   The employee, in his brief to this court, also acknowledges that the 14 percent rating is erroneous.  We agree, and modify the award of permanent partial disability accordingly, to reflect a seven percent permanency award.