KAREN E. SHERWIN, Employee, v. ALLINA HEALTH SYS./MERCY HOSP., SELF-INSURED, adm=d by GALLAGHER BASSETT SERVS., INC., Employer/Appellant.

 

WORKERS= COMPENSATION COURT OF APPEALS

AUGUST 5, 2003

 

HEADNOTES

 

REHABILITATION - RETRAINING.  Substantial evidence, including multiple labor market surveys, supports the compensation judge=s findings that employment as a nurse practitioner would be reasonably attainable upon completion of retraining, and that the requested retraining would produce an economic status as close as possible to that which the employee would have enjoyed without the disability, and the judge=s approval of the employee=s request for 156 weeks of retraining as a nurse practitioner.

 

Affirmed

 

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

Compensation Judge:  Joan G. Hallock

 

OPINION

 

THOMAS L. JOHNSON, Judge

 

The self-insured employer appeals from the compensation judge=s approval of the em­ployee=s request for retraining as a nurse practitioner.  The employer specifically appeals the judge=s findings that employ­ment would be reasonably attainable upon completion of such training, and that retraining as a nurse practitioner would produce an economic status as close as possible to that which the employee would have enjoyed without her disability.  Concluding there is substantial evidence to support the judge=s finding, we affirm.

 

BACKGROUND

 

Karen Sherwin, the employee, worked as registered nurse for the employer, Allina Health System, in the float pool at Mercy Hospital.   The employee sustained an admitted injury to her low back on August 24, 2000.  She was seen by a doctor at the Allina Coon Rapids Medical Clinic who prescribed anti-inflammatory medications and physical therapy, and took the employee off work.  The employee continued to experience considerable low back and left leg pain and was referred to Dr. Daniel Ahlberg, a neurosurgeon.  Dr. Ahlberg performed a laminectomy and disc­ectomy at L3-4 on October 17, 2000.

 

As a float pool nurse, the employee worked a .8  or 32 hour a week schedule.  In addition to a base hourly wage of $26.84, the employee received overtime pay, double overtime pay, shift dif­fer­entials, and weekend bonuses and premiums.  The parties stipulated the employee=s average weekly wage at the time of the injury was at least $1,175.65.  The employee=s wages were covered by a union contract, and her wages as a float pool nurse would have increased significantly had she not been injured.

 

On  January  11, 2001, the employee began working with Roxanne Tarrant, a qualified rehabilitation consultant (QRC).  Following recovery from her surgery, beginning in April 2001, the employer provided temporary, light-duty work to the employee at Mercy Hospital.  By November 2001, it was apparent the employee would not be able to return to her pre-injury work as a floor nurse.  A place­ment special­ist, Walter Bey, was assigned to provide job search assistance to the employee.  A per­manent posi­tion in nursing was sought, both within the Allina Health System and with other em­ployers.  In January 2002, the employee was given permanent work restrictions in­cluding no lifting or carrying over 20 pounds on an occasional basis, frequent position changes, no repe­titive bending or stooping, and no more than 32 hours of work per week.

 

On April 1, 2002, the employee began working as a telephone triage nurse at the Allina Coon Rapids Medical Clinic on a .8 schedule or eight hours a day, four days a week.  The position is per­ma­nent and is physically suitable.  The  employee began at an hourly wage of $25.46 or $835.50 per week, resulting in a wage loss of about $10.00 per hour.^[1]

 

    In June 2002, the employee requested exploration of  retraining as a nurse practitioner.  QRC Tarrant completed a 156 week retraining plan, including one year of college to com­plete a Bachelor of Science in Nursing (BSN) degree, followed by a two year Nurse Practitioner masters degree program, both at the University of Washington.^[2]  The total cost, excluding wage loss benefits, is estimated to be $55,179.21.  The self-insured employer opposed retraining and, on July 31, 2002, the employee filed a Rehabilitation Request seeking approval of the retraining plan.  The case was heard by a compensation judge at the Office of Administrative Hearings on December 10, 2002.  In her decision, filed January 21, 2003, the compensation judge ordered the self-insured employer to provide retraining benefits to the employee as requested.  The self-insured employer appeals.

 

DECISION

 

Retraining is a Aformal course of study in a school setting which is designed to train an employee to return to suitable gainful employment.@  Minn. Stat. ' 176.11, subd. 23.  To establish entitlement to retraining benefits, the employee must show retraining is Anecessary.@  The Minnesota Supreme Court has held that A>necessary= should not be construed as >indispensable,=@ rather, retraining Ashould be found necessary if it appears that the retraining will materially assist the employee in restoring [her] impaired capacity to earn a livelihood.@  Wilson v. Crown Cork & Seal, 503 N.W.2d 472, 49 W.C.D. 51 (Minn. 1993); Norby v. Arctic Enters., Inc., 305 Minn. 5l9, 232 N.W.2d 773, 28 W.C.D. 48 (1975).  AAreas of concern@ in evaluating an em­ployee=s request for retraining include: (1) the likelihood the employee will succeed in a formal course of study given her abilities and interests; (2) the reasonableness of retraining as compared to returning to work with the employer or other job placement activities; (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 the  disability.  Poole v. Farmstead Foods, Inc., 42 W.C.D. 970 (W.C.C.A. 1989).

 

Both the vocational expert for the self-insured employer, Jan Lowe, and the employee=s QRC, Ms. Tarrant, testified the employee has the academic ability to complete the proposed course of study as a nurse practitioner.  Both vocational experts also agree the employee has suffered a significant  reduction in earnings as a result of her work injury.  Nor is it disputed that nurse prac­titioners, in general, can earn significantly higher wages than the employee is earning in her current position.  The self-injured employer contends, however, the compensation judge=s finding that em­ployment as a nurse practitioner would be rea­sonably attainable upon completion of the program, and her finding that retraining as a nurse prac­titioner would likely produce an economic status as close as possible to that which the employee would have enjoyed without disability, are clearly erroneous and unsupported by substantial evi­dence.  We disagree.

 

1.  Reasonably attainable employment

 

Six labor market surveys were conducted to evaluate the availability of nurse prac­titioner positions in the Twin Cities and the Seattle, Washington, areas in the course of these pro­ceedings: four by or at the request of the employee=s QRC and two at the request of the self-insured employer=s voca­tional expert.  All of the surveys found full-time and part-time openings for nurse prac­titioners in both the Twin Cities and Washington state.  Generally, job prospects were described as fair to good, with a stronger market for nurse practitioners in the Seattle, Washington, area.  While there was evi­dence suggesting ­slowing growth in the field and a more competitive market, the surveys, none­theless, evidenced a number of nurse practitioner openings in 2002 when they were completed.  

The self-insured employer, however, argues the employee failed to show even one spe­cific job opening that matched both the employee=s physical restrictions and her 32 hour work week limit.  The labor market surveys of both vocational experts indicate the physical re­quire­ments for nurse practitioner positions vary depending on the type of care being provided and the specific needs of the job.  The sur­veys include work settings that would be within the ­employee=s physical re­strictions, speci­fically openings listing no lifting or lifting of 20 pounds or less.  Similarly, a number of part-time openings were found during the labor market surveys. 

 

The self-insured employer urges adoption by this court of the opinions of Ms. Jan Lowe, who performed an vocational evaluation of the employee at the request of the employer.  Given the em­ployee=s physical restrictions including a .8 work schedule, Ms. Lowe con­cluded the employee would face a restricted range of job opportunities in an increasingly competitive field, and opined that retraining as a nurse practitioner would not likely result in reasonably attainable employment for the employee.  Ms. Tarrant, on the other hand, opined the employee would be able to obtain a nurse prac­titioner position upon graduation, based on the 2002 labor market surveys showing current, available job openings for both full-time and part-time nurse practitioners, including jobs that would be within the employee=s physical restrictions.  Whether employment is likely to be reasonably attainable at the completion of retraining is a question of fact for the compensation judge.  The com­pensation judge found more persuasive, and accepted, the opinions of QRC Roxanne Tarrant.  Weighing expert opinion and choosing between conflicting  opinions is uniquely a func­tion of the compensation judge. See Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985).  Substantial evidence, in the record as a whole, supports the finding that employment is likely reasonably attainable upon com­pletion of the nurse practitioner program, and we must, therefore, affirm.

 

2.  Economic status

 

The employer also argues the compensation judge=s finding that retraining as a nurse practitioner would produce an economic status as close as possible to that which the employee would have enjoyed without her work injury and subsequent disability is clearly erroneous and unsup­ported by the evidence.  We are not persuaded.

 

The purpose of retraining is to restore an injured employee=s impaired capacity to earn a livelihood.  The employee=s A[e]conomic status is to be measured not only by op­portunity for im­mediate income but also by opportunity for future income.@  Minn. Stat. ' 176.102, subd. 1(b).  The employer does not dispute the employee=s current post-injury wages are significantly less than her pre-injury earnings and that there is little opportunity for advancement in her current position.  The employer further acknowledges that nurse practitioners, generally, can earn significantly higher wages than the employee is earning in her current position.

 

The self-insured employer, however, points out the employee=s current hourly wage falls within the lower range of wages found for nurse practitioners in the labor market surveys, and argues there is no proof this employee will have higher earnings as a nurse practitioner after three years of re­training.  The labor market survey and other salary income submitted, however, reflect a range of hourly wages and salaries for nurse practitioners that is, as a whole, significantly higher than the employee=s earnings in her current job as a telephone triage nurse, in many cases equivalent to or exceeding the hourly wage the employee received as a float pool nurse.  This evidence supports the conclusion that employment as a nurse practitioner has more potential for higher earnings, over time, than the employee=s present job.  The fact the employee may experience a period of lower earnings is not dispositive.  A[I]t is highly unlikely that . . . a worker could earn a wage for performing an entry level job in a [new] occupation . . . equal to that which the worker earned as an experienced em­ployee in a different occupation.  Most workers realize the economic potential of their occupation only over a period of years.@  Gackstetter v. Johnson/ Midwest Bottling, 511 N.W.2d 439, 441, 50 W.C.D. 51, 54  (Minn. 1994).  The evidence, as a whole, supports the compensation judge=s finding that retraining as a nurse practitioner would likely produce an economic status as close as possible to that the employee would have enjoyed without the back injury and subsequent disability.  We, accord­ingly, affirm.

 

3.  Reasonableness of retraining

 

Finally, the self-insured employer contends the compensation judge failed to compare the proposed retraining plan to a return to work with the employer or through job place­ment activities.  We disagree.  Implicit in the judge=s decision approving retraining as a nurse practitioner is the judge=s rejection of the employer=s arguments that the employee is unlikely to do any better with retraining as a nurse practitioner than her current job as a phone triage nurse, or that the employee could obtain a better position as a registered nurse through further job placement activities.

 

The employee returned to work in transitional employment with the employer following her release to return to work after the surgery.  She worked with QRC Tarrant, a disability case manager assigned by the employer, Neil Binsfield, and with Walter Bey, a placement specialist, in an attempt to find an appropriate position, within the employee=s restrictions, both with the employer and with other employers.  The employee was offered and accepted a position with the employer, Allina Health System, as a telephone triage nurse.  The employee received no other job offers from the em­ployer.  Since August 2002, the employee has continued to search for higher-paying work as a registered nurse without success.  While the reasonableness of retraining as compared to return to work with the employer or continuing placement activities is an Aarea of concern,@ it is not neces­sarily disposi­tive.  Nor is the employee required to exhaust all other possibilities to be eligible for retraining.   See Wilson at 475, 49 W.C.D. at  54.  There is substantial evidence to support the com­pensation judge=s determination that the requested retraining as a nurse practitioner is appro­priate on the facts of this case, and we affirm.