RAYMOND SMOTHERS, Employee, v. NELSON & SONS MASONRY and AUTO OWNERS INS. CO., Employer-Insurer/Appellants.

 

WORKERS= COMPENSATION COURT OF APPEALS

OCTOBER 30, 2003

 

HEADNOTES

 

REHABILITATION - RETRAINING.  Substantial evidence supports the compensation judge=s findings that the factors cited in Poole v. Farmstead Foods, 42 W.C.D. 970 (W.C.C.A. 1989), were met and supports the compensation judge=s award of a retraining program.

 

Affirmed.

 

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

Compensation Judge:  Penny Johnson

 

Attorneys:  Barbara G. Lawton, Koll, Morrison Charpentier & Hagstrom, St. Paul, MN, for Appellants.  Thomas D. Mottaz, David B. Kempston, Law Office of Thomas D. Mottaz, Anoka, MN, for Respondent.

 

OPINION

 

MIRIAM P. RYKKEN, Judge

 

The employer and insurer appeal from the compensation judge=s approval of the proposed retraining plan.  We affirm.

 

BACKGROUND

 

On September 9, 2000, Raymond Smothers, the employee, sustained an admitted injury to his left ankle and foot, while working as a mason for Nelson & Sons Concrete and Masonry, the employer.  At the time, Auto Owners Insurance Company insured the employer for workers= compensation liability in the state of Minnesota.  On the date of injury, the employee was 49 years old, and earned a weekly wage of $704.  He had worked as a cement mason for about 30 years prior to his injury.

 

On September 9, 2000, the employee was working on a short-term job for the employer, laying block  for foundations in residential construction.  He fell from scaffolding at a construction job site, falling about eight or nine feet.  He sustained multiple fractures in his left ankle and foot and underwent emergency reconstructive surgery on September 11, 2000, in the nature of open reduction internal fixation surgery.  He was placed in an ankle cast, and by October 24, 2000, was released to return to work with sedentary restrictions.  He was placed in an air cast in December 2000, and later experienced increased pain.  According to rehabilitation records in evidence,  the employee reported that his ankle was very painful and was worse than when he first broke his ankle; Dr. Leo Hise, his initial treating surgeon, advised that the pain level was not unexpected, and that it would be rare for an individual to return to pre-injury functioning with this type of ankle break.

 

Due to ongoing symptoms, the employee obtained a second opinion from Dr. William Schnell in May 2001, who noted that the employee=s ankle was not in alignment, and prescribed a brace and other orthotics to  improve the employee=s healing and mobility.  By late July 2001, Dr. Schnell released the employee to return to work within restrictions, and the employee participated in a job search at the direction of his qualified rehabilitation consultant (QRC), Kathleen Hern, with whom he had worked since September 2000.  Because of the employee=s ongoing  problems with his left ankle, however, Dr. Schnell referred the employee to Dr. Michael Castro, osteopath at Fairview University Medical Center.  

 

 Dr. Castro noted that following the employee=s injury, he suffered a rapid onset of debilitating end stage degenerative changes to the foot and ankle thereafter and had chronic soft tissue injuries.  Dr. Castro presented the employee various treatment options:  amputation of the leg below the knee, which would require a prosthesis, a type of amputation above the ankle that would permit weight-bearing without a prosthesis, or reconstructive surgery that would likely to result in lengthy recovery and significant physical restrictions and immobility.  Dr. Castro advised that the below-the-knee amputation surgery would allow greater function in the long run with fewer concerns of chronic pain and risk of reinjury.  The employee opted for that amputation surgery which was performed by Dr. Castro on July 17, 2002.  The employee was later fitted for a prosthetic lower leg and underwent physical therapy, and by the time of the hearing in this matter held on January 15, 2003, Dr. Castro had released the employee for retraining but not for return to work, and had concluded that the employee could not return to construction-type work.

 

The employee has received extensive rehabilitation assistance.  He first worked with QRC Hern in September 2000.  Initially the rehabilitation assistance consisted of monitoring the employee=s medical treatment and recovery, and some initial vocational assessment.  By August 2001, after the employee had been released to return to work by Dr. Schnell, within restrictions, the QRC conducted vocational testing and initiated job placement services.  By September 2001, the QRC developed a job placement plan and agreement (JPPA), including job search in the areas of estimator, construction manager, and other agreed-upon areas.  Due to staff turnover among professionals providing placement services in the geographical area where the employee lived, the QRC also chose to provide direct placement services to the employee, and did so between August 2001 and February 2002.  During that period of time, she provided the employee with a large volume of job leads in a wide variety of fields and locations.  Although the employee initially searched for employment in his local area, near Grand Rapids, Minnesota, he expanded his search to include other areas of Minnesota, including the northern Minneapolis-St. Paul  metropolitan area.  The employee=s job search initially focused on areas related to his experience in the construction trades, but after he was unsuccessful in finding any promising leads in that area, the QRC provided him with leads in many different types of job that required only a high school education since the employee had an 11^th grade education and a GED.  The QRC provided over 700 job leads in the areas of sales, property management, clerking, customer service or technician, service writing, production, and jobs working with youth based on his previous work with the 4-H program.

 

In July 2002, the employee=s QRC developed a retraining plan through which the employee would pursue a career as a medical lab technician.  The plan proposed that the employee attend the Hibbing Community College to obtain a A.A.S. degree as a medical lab technician, which requires a six semester, 3-year program.  The plan was filed with the Department of Labor and Industry on August 2, 2002.  By September 8, 2002, the employee had been paid a statutory maximum of 104 weeks of temporary total disability benefits.  Thereafter, he was paid weekly permanent partial disability benefits.  The employer objected to approval of the retraining plan.  The request was initially addressed at an administrative conference, and later scheduled for an evidentiary  hearing on January 15, 2003. 

 

On January 2, 2003, the employee underwent an independent vocational examination with Richard Van Wagner, M.S., CRC, at the employer and insurer=s request.  Mr. Van Wagner determined that although the employee would benefit from an enhancement of his skills, he considered the proposed retraining plan premature, and concluded the employee was not an ideal candidate for retraining.  He instead recommended additional job placement services focusing on a work environment in which the employee could succeed and a skill enhancement program consistent with a well-formulated job placement plan.  In his report, Mr. Van Wagner outlined various issues to be addressed as the employee participates in additional physical and vocational rehabilitation.  He expressed concern that the job leads provided to the employee were unfocused and reflected jobs for which the employee may be unqualified due to his education, training, work experience and physical capacities.  He also recommended an alternative prosthetist and re-engagement in job placement services with an alternative placement specialist. 

 

On January 9, 2003, the employee underwent an orthopaedic examination with Dr. Lowell Lutter, at the employer and insurer=s request.  Dr. Lutter recommended additional therapy including continued assistance with ambulation and physiotherapy with strengthening exercises.  Dr. Lutter concluded that the employee would continue to improve during at least the next six months, and that he had not yet reached maximum medical improvement from the effects of his work injury.  Dr. Lutter assigned the following physical restrictions:

 

It is my opinion that Mr. Smothers is able to ambulate for short distances.  He is able to stand for approximately 20-30 minutes.  He [is] not able to lift more than 10 pounds repetitively from the floor to a bench area, and he is not able to repetitively lift more than 20 pounds from a bench-to-bench level.  He is not able to work overhead.  He is able to sit for periods of approximately two hours without rising from a seated position.  He is currently able to work full time within these restrictions.

 

A hearing was held before a compensation judge on January 15, 2003.  Evidence offered at trial included the employee=s medical records, rehabilitation records, and testimony from QRC Hern and Mr. Van Wagner.  Following the hearing, in Findings and Order served and filed January 29, 2003, the compensation judge approved the proposed retraining plan.  The employer and insurer appeal.

 

DECISION

 

Vocational rehabilitation, including retraining "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."  Minn. Stat. ' 176.102, subd. 1(b).  See also Jerde v. Adolfson & Peterson, 484 N.W.2d 793, 795 n.2, 46 W.C.D. 602, 622 n.2 (Minn. 1992).  Retraining is defined in the statute as Aa formal course of study in a school setting which is designed to train an employee to return to suitable gainful employment.@  Minn. Stat. ' 176.011, subd. 23.  As outlined in Minn. R. 5220.0750, subp. 1, A[t]he purpose of retraining is to return the employee to suitable gainful employment through a formal course of study.  Retraining 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 gainful employment.@  Retraining differs from other forms of rehabilitation assistance in that an individual who has been approved to participate in a retraining program is entitled to receive weekly compensation benefits that are, essentially, temporary total disability benefits for up to 156 weeks while participating in an approved retraining program.

 

Retraining is necessary "if it will materially assist the employee in restoring an impaired earning capacity," however, the Minnesota Supreme Court has stated that 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).  Factors to be considered in making a determination as to whether retraining is appropriate 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); see Minn. Stat. ' 176.102, subd. 1; see also Stiffler v. Suburban Auto Body, slip op. (W.C.C.A. Nov. 15, 1994).  Generally, the propriety of a proposed retraining plan is a fact issue for the compensation judge, and this court must affirm the compensation judge=s determination where the judge=s application of the Poole factors is supported by substantial evidence.  Anderson v. Metropolitan Mech. Contractors, slip op. (W.C.C.A. Oct. 19, 1999). 

 

The employer and insurer=s primary argument on appeal is that the compensation judge=s decision, that retraining is reasonable compared to other rehabilitation alternatives, is premature since the employee=s long-term post-surgery prognosis is better than his current physical condition.  They argue that the employee would be able to conduct a more successful job search once he has improved and permanent restrictions have been determined.  The employee=s surgery was July 17, 2002, and the claim was addressed at hearing on January 15, 2003.  The employer and insurer argue that the employee=s current restrictions are more restrictive than Dr. Castro predicted to be the final outcome for the employee, based on his pre-amputation advice that the employee would be less restricted and more mobile with a prosthesis as opposed to reconstructive surgery on his ankle.

 

The compensation judge found that the employee=s retraining claim was not premature.  She found that while it is helpful to have permanent work restrictions before preparing a retraining plan, they are not required, and in this case the employee clearly would not be returning to masonry work and that he will need more sedentary activities.  The compensation judge determined that no medical provider has indicated that the employee=s eventual permanent restrictions are expected to differ in any significant way from the current restrictions given by Dr. Lutter, and that it is unlikely that the employee=s restrictions will dramatically change from those restrictions.  In her memorandum, she concluded that

 

The employee=s claim is not premature.  His most current work restrictions given by Dr. Lutter, the independent medical examiner, are consistent with the expectations of his treating surgeon.  While the exact amount of standing and walking and lifting have not yet been determined, there is no serious dispute that the job for which the employee seeks to be retrained appears to be well within his abilities.  * * *  The doctors have not indicated that his restrictions are expected to significantly change.  He is making some gradual improvement to hopefully increase his standing and walking abilities.  Even though the final outcome is not known, the general future abilities may be anticipated and need not prevent the employee from moving forward in a retraining plan at this time.

 

The employer and insurer argue that there is no medical opinion specifically indicating that the restrictions will not change, and that the judge=s findings were speculative.  We are mindful that the Minnesota Supreme Court has previously stated that, in general, decisions about the kind of rehabilitation services that would be appropriate cannot be made until the employee=s condition stabilizes sufficiently such that the nature and extent of permanent disability and its effects on the employee=s employability are known.  Langa v. Fleischmann-Kurth Malting Co., 481 N.W.2d 35, 37, 46 W.C.D. 156, 160-161 (Minn. 1992).  However, in this case, given the employee=s circumstances and the progression of his medical treatment, the work restrictions assigned by his treating and consulting physicians, the compensation judge could reasonably conclude that the employee=s restrictions will not significantly change.

 

The employer and insurer do not appeal the compensation judge=s finding that the employee has the aptitude and interest to pursue retraining as a medical lab technician.  However, the employer and insurer also argue that substantial evidence does not support the compensation judge=s finding that additional job placement activities would be unnecessary and futile,  arguing that the employee=s condition eventually will be significantly improved and that job search efforts after his release to work would likely result in earnings within the range anticipated by the retraining plan.  The compensation judge noted that the starting wage for a medical lab technician is about $12.00 per hour and the employee=s current earning capacity without retraining is about $7.00 per hour.  The employer and insurer questioned whether the QRC=s labor market survey regarding the medical lab technician wage was reliable since it was based upon job information from a computer web site.  The compensation judge noted that the labor market survey would have been more complete with personal contacts, but concluded that the information provided was adequate.  The employer and insurer did not submit any contrary evidence regarding the wage information to indicate that the information provided by the QRC at the hearing was inaccurate.  The compensation judge could reasonably conclude that the retraining plan was reasonably designed to produce a wage as close as possible to the employee=s wage at the time of the injury.

 

The compensation judge addressed the extensive nature of the employee pre-surgery job search and stated that the employee and QRC effectively worked together on job leads and follow-up.  The compensation judge found that the employee made an excellent effort to find alternative employment, both within his local labor market and broader geographical area, but that the job search did not produce any in-person interviews or job offers.  The employee=s QRC testified that she did not recommend additional job search because she did not believe that the employee could find a job which would pay more than $7.00 per hour.  The compensation judge addressed the Poole factors, and found that the proposed retraining plan was reasonable, that it would materially assist the employee in restoring his impaired earning capacity, that he would likely succeed in the retraining program given his abilities and interests, and the retraining would likely produce an economic status as close as possible to that which the employee would have enjoyed without his disability.

 

On appeal, this court must determine whether "the 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.  Substantial evidence supports the findings if, in the context of the entire record, "they 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).  While ordinarily it might be preferable to wait until the employee=s condition has further improved or stabilized, under the particular circumstances of this case, where the employer and insurer already have provided extensive rehabilitation and job placement assistance to the employee and where the nature of the employee=s injury precludes him from returning to his pre-injury employment, it was reasonable for the compensation judge to conclude that retraining is reasonable compared to other rehabilitation alternatives.  Given the fact that the Poole factors have been otherwise been satisfied, we conclude that the compensation judge=s award of a retraining program is not premature and is supported by substantial evidence of record.  We therefore affirm.