LORI A. STOTTS, Employee, v. POLARIS INDUS., SELF-INSURED/SEDGWICK JAMES CLAIMS, Employer.

 

WORKERS= COMPENSATION COURT OF APPEALS

SEPTEMBER 5, 2003

 

HEADNOTES

 

REHABILITATION - RETRAINING.  Where there was evidence that the employee already possessed several innate qualities beneficial to one seeking entry into the sales and marketing area in which the employee sought retraining, where advancement in that area appeared dependant just as much and maybe more on on-the-job training than on formal schooling, where neither the employee nor her QRC had conducted a reasonable aggressive job search either within the fifty-mile radius or outside of it, where there was evidence that a graduate of the proposed retraining program could not expect a wage much more than that earned by the employee at the time of her work injury over twelve years earlier, where there was expert vocational opinion that the employee had not diligently sought work either within or without a fifty-mile radius of her home and could not expect to improve her employability by means of the proposed retraining program, and where the employee had expressed willingness to move outside of a fifty-mile radius from her home in northwestern Minnesota in order to work, if not simply to look for work, the compensation judge=s denial of retraining was not clearly erroneous and unsupported by substantial evidence.

 

Affirmed.

 

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

Compensation Judge:  Gregory Bonovetz

 

OPINION

 

WILLIAM R. PEDERSON, Judge

 

The employee appeals from the compensation judge's denial of retraining.  We affirm.

 

BACKGROUND

 

On October 15, 1990, Lori A. Stotts sustained a work-related injury to her upper extremities while employed as an assembly worker with Polaris Industries, LP, which was self-insured at the time against workers= compensation liability.  Ms. Stotts [the employee] was twenty-three years old on that date and was earning a weekly wage of $314.80, or $7.83 an hour, plus a full benefits package.   Subsequent to her injury, the employee returned to work for the employer in a modified position until her employment was terminated January 5, 1999.  Since that date, the employee has been unemployed and residing in the small town of Wannaska in northwestern Minnesota, where she lives with her mother, evidently relying on her financially for most of her basic material needs, while her two teen-aged sons live elsewhere, with and supported by their father.  As a direct result of her work injury, the employee is now subject to substantial permanent restrictions with regard to her upper extremities, including the necessity that she avoid repetitive grasping, the use of vibrating tools, and lifting in excess of five pounds with either hand, ten pounds with both.

 

Except for some past work as a waitress, the employee, who had formal education only through the eleventh grade prior to obtaining a GED, has no employment history outside assembly work.  On July 17, 2000, at the advice of QRC Kim Eisenhuth, who had assisted the employee=s rehabilitation since about March of 1999, the employee filed a Rehabilitation Request, alleging entitlement to retraining in a four-year program leading to a bachelors degree in social work, consequent to her October 1990 work injury.  The matter was considered at an administrative conference on September 18, 2000, and by a Decision and Order filed October 5, 2000, the employee=s request was denied.  On October 9, 2000, the employee filed a Request for Formal Hearing, and the matter was heard on February 20, 2001.  By Findings and Order filed May 7, 2001, the employee=s request for retraining was again denied.

 

For about eight months following the hearing in February 2001, the employee apparently did not conduct any significant job search.  In June and July of 2001, QRC Eisenhuth developed an R-3 calling for a self-directed job search by the employee and apparently contemplation of a different, shorter retraining program.  The plan was never executed, and in the fall of 2001 the employee switched QRCs from Ms. Eisenhuth to QRC James Jackson.  Concluding that further formal job searching was futile, QRC Jackson developed an R-3 calling for continued self-directed job search by the employee, while the QRC continued to look into further retraining options.  The employee centered her job search activities on reviewing three local weekly newspapers= help wanted ads, but actual contacts with employers were few.  Eventually, on May 8, 2002, QRC Jackson filed another Retraining Plan, this time seeking retraining in the form of enrollment in a two-year Associate of Arts degree program in sales, marketing, and management at Northwest Technical College in Bemidji, projected to cost about $21,179.50.  In the Retraining Rationale accompanying that Retraining Plan, QRC Jackson asserted in part that employers contacted in a labor market survey had indicated that the proposed retraining program Awould be very helpful,@ with anticipated salaries ranging between $16,000 and $50,000 a year, or between $308 and $962 a week.

 

On August 9, 2002, the employee was evaluated for the employer by vocational expert Jan Lowe, who had also evidently evaluated and reported on the employee about two years earlier.  In a report dated September 19, 2002, Ms. Lowe concluded in part the following: (1) that there was no evidence that the proposed retraining plan would significantly improve the employee=s employability; (2) that a comparison of the employee=s job search efforts with job openings published in local newspapers indicated that the employee had not made a reasonably diligent effort to contact potential employers; (3) that there was no clear pattern of job openings in the employee=s job market that would support the proposed retraining plan, many opportunities being accessed with related work experience instead of formal training; (4) that the average hourly wage for recent graduates of the proposed retraining program was $8.50, which was little different from the wage that the employee could have expected had she pursued apparently available jobs as a group home attendant, bank teller, or casino worker; and (5) that A[the employee=s] expressed willingness to move following the completion of a retraining program . . . would be an avenue to improve the number of job opportunities and/or her earning capacity without any additional training.@

 

The matter had been considered at an administrative conference on September 16, 2002, and by a Decision and Order filed September 24, 2002, the employee=s request was denied as Apremature.@  The employee filed a Request for Formal Hearing on October 17, 2002, and the matter came on for formal hearing on January 9, 2003.  It was made evident at hearing that job opportunities within a fifty-mile radius of the employee=s home are limited, and the employee testified in part that, although she was unwilling to move to a larger community and job market simply in order to look for work, she sincerely wanted to return to gainful employment and would be quite willing to relocate to a larger community such as Bemidji, St.. Cloud, Duluth, or Fargo, North Dakota either if an appropriate job were definitely available there or once she had completed the requested retraining program.  She conceded also that, should her retraining request be rejected as a last resort, she would authorize her QRC to search for a job for her outside her home area, and she testified further that she would be willing to move just about anywhere in the state to in order to obtain the retraining at issue.  QRC Jackson also testified for the employee at hearing, several times to the effect that the employee was Anot competitively employable now@ and that it was his Afirm opinion that she doesn=t have anything to offer an employer@ without the requested retraining.

 

Also testifying at the hearing was Ms. Lowe, for the employer.  While acknowledging that she did not provide placement services in the employee=s job market area, Ms. Lowe testified that northwestern Minnesota was a Atough labor marketA and opined that, contrary to the testimony of QRC Jackson, the retraining at issue would not increase the employee=s employability.  She testified that this employability Aincreases dramatically,@ however, even without the retraining, if the employee expands her job search to include more urban labor markets such as Bemidji, St. Cloud, Duluth, Brainerd, Moorhead, the Twin Cities, or Grand Forks or Fargo, North Dakota.  Ms. Lowe characterized the employee=s job search in 2002 as Aa terrible job search,@ and, although she did not identify any specific potential employers outside the employee=s local job market, she indicated that in her opinion there were Aa lot more jobs she can take a look at@ in such urban areas, Amany more jobs to consider . . . than otherwise could be considered if she=s within a 50-mile radius of her current home.@  Moreover, she testified, even within that fifty-mile radius, Athere were advertised job openings for positions that [the employee] could do@ but apparently did not recently pursue, based apparently in some cases only on the fact that the employee had inquired into the job at an earlier date, since which date the position and its hiring situation might well have changed.  These positions included advertised jobs as a customer service representative, as a front desk clerk, as a bank teller, as a drug store counter clerk, as a Holiday station sales clerk, as a receptionist, as a hotel assistant manager, and as a carpet and furniture store salesperson.  Ms. Lowe testified that, in many cases, advancement to well-paying employment in the fields of the employee=s proposed retraining is more quickly available from withinBby on-the-job-experienceBthan by formal education, rendering the expenditure of time implied in retraining a financially impractical alternative even for the employee.  It was Ms. Lowe=s opinion that the proposed retraining plan is A[a]bsolutely@ premature in this case, given the employee=s announced willingness to move to get a job, A[b]ecause I have not seen . . . a structured job search with a rehabilitation professional assisting [the employee] in taking a look at the jobs that are available and then defining why she doesn=t get those jobs and applying a solution to it.@

In Findings and Order filed January 14, 2003, the compensation judge expressly found Athe employee to be a most intelligent, very articulate individual,@Aa most credible witness,@ and that Athis credibility, this sincerity comes across with ease and genuin[en]ess.@  The judge also found, however, that the employee=s actual job search since her termination in 1999 had encompassed only a limited area within a fifty-mile radius of her home, the largest communities of which were Warroad, Roseau, Badger, Wannaska, Grygla, and Greenbush.  The judge found that, in spite of the employee=s Avery significant@ physical limitations and lack of formal education, and contrary to the opinion of her QRC, Athe employee does in fact have much to offer a potential employer@ and that she had not applied herself with reasonable diligence to the labor market available to her beyond a fifty-mile radius of her home, to which she had expressed readiness to move for employment.  On these conclusions the judge, indicating in his memorandum that he was Amost distressed by this case,@ denied the proposed two-year retraining program on grounds that it was at best premature.  At Finding 19, the judge indicated that he had reached this decision

 

[i]n light of the fact that no job search efforts have been expended on behalf of the employee in larger communities outside the 50 mile radius of the employee=s home, in light of the fact that the employee does in fact possess innate skills beneficial to one interested in entering sales and marketing and in light of the fact that the most recent data from the technical college indicates one completing the proposed 2 year program would begin work with an average hourly wage of only $8.50,

 

which is little more than the $7.83 hourly wage that the employee had earned over twelve years earlier at her date-of-injury job and substantially less than the $9.73 that she last earned with the employer in 1999 or the $10.00 starting wage currently paid by the employer for work at the employee=s date-of-injury job.  In the concluding paragraph of his memorandum, the judge asserted that QRC Jackson=s conclusion that the employee Ahas nothing to offer an employer@ reflected a Amost negative mind set,@ which, Ain a case such as this, is counterproductive,@ leaving the employee Amost in need of positive, vibrant rehabilitation assistance.@  The employee appeals.

 

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

 

In denying the employee=s request for retraining, the compensation judge suggested at Finding 19 and in his memorandum that the employee possessed substantial Ainnate skills@ and Ainnate abilities,@ that she was Aa most articulate, intelligent individual,@ that, contrary to the assessment of QRC Jackson, she had Amuch to offer a potential employer,@ that she had not yet conducted as wide a job search as she was evidently willing ultimately to conduct, and that she was Amost in need of positive, vibrant rehabilitation assistance.@  The employee argues essentially as follows:  (1) that the sufficiency of the employee=s job search was never challenged until retraining became an issue; (2) that it is Afundamentally flawed@ for the judge to have contended Athat an unskilled worker has skills,@ particularly where Anone were identified@; (3) that it is contrary to law to require an employee to conduct as wide a job search prior to a decision on retraining as she might ultimately resort to in the event of a denial of retraining; and (4) that A[t]here is no evidence that further job search in the Employee=s current job market is likely to produce employment within the Employee=s current restrictions and skill level.  We are not persuaded.

 

In Poole v. Farmstead Foods, Inc., 42 W.C.D. 970, 978 (W.C.C.A. 1989), this court identified the following as factors to be considered in evaluating an employee's entitlement to retraining:  (1) the reasonableness of retraining as compared to returning to work with the employer or other job placement activities; (2) the likelihood that the employee has the ability and interest to succeed in a formal course of study; (3) whether retraining is likely to result in reasonably attainable employment; and (4) the likelihood that retraining will result in an economic status optimally close to that which the employee would have enjoyed without disability.  The compensation judge concluded in his memorandum that the retraining plan at issue was inappropriate Awhen plugged into the rote Poole factors,@ and we agree.

 

It was vocational expert Jan Lowe=s testimony and opinion that the employee would not benefit at all by the requested retraining plan with regard to any search for work but that broadening the geographical limits of her search would certainly turn up more potential job options Ato explore@ even without retraining.  It was not unreasonable for the compensation judge to rely on the expert opinion of Ms. Lowe instead of the opinion of QRC Jackson, particularly in light of the fact that the employee had already demonstrated at least some conditional willingness to address the job market outside a fifty-mile radius of her home, both in her testimony at hearing and in her actual inquiry into available jobs in Thief River Falls, the home town of her boyfriend.  It was the judge=s prerogative to choose from among the experts rendering opinions, see Nord v. City of Cook, 360 N.W.2d 337, 342-43, 37 W.C.D. 364, 372-73 (Minn. 1985), (a trier of fact's choice between experts whose testimony conflicts is usually upheld unless the facts assumed by the expert in rendering his opinion are not supported by the evidence).  It was also not unreasonable for the judge to conclude from Ms. Lowe=s testimony that the employee could benefit more from two years of actual work in sales and marketing, obtainable through a more aggressive job search, than from two years of training in that field.  With regard to the other three identified Poole factors, it was uncontested that the employee had the intellectual and other qualities necessary to succeed at the requested retraining program, but little evidence was submitted to demonstrate that retraining would result in otherwise unavailable job opportunities, and, in fact, Ms. Lowe testified affirmatively that she saw no reason that it would.  Moreover, with regard to the fourth Poole factor, evidence was submitted by the employer indicating that the average hourly wage available to an individual with the training sought by the employee would be substantially less than the employee would be enjoying without disability.

 

With regard to the employee=s argument that the sufficiency of the employee=s job search was never challenged earlier, we see little surprising and  nothing unreasonable in the employer=s challenge only after the expense of the retraining program became an issue.  With regard to the employee=s arguments that it is Afundamentally flawed@ to contend Athat an unskilled worker has skills@ and that no specific Ainnate skills@ were at any rate identified, we would note that the judge did specifically identify the employee=s articulateness and intelligence as apparently those skills or abilities being referenced as already present in the employee and useful to employers.  We agree with the employer that, contrary to the employee=s argument, the employee=s position is not supported by our decision in Schultz v. Potlatch, slip op. (W.C.C.A. May 2, 2002), in which we affirmed the diligence of a job search contained within a fifty-mile radius of the employee=s home.  To begin with, our decision in Schultz was merely an affirmance of a compensation judge=s factual finding as reasonable; an affirmance of a factual finding in one case is of very weak if any precedential value in overturning a contrary factual finding in another case.  See Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 59, 37 W.C.D. 235, 239 (Minn. 1984) (a compensation judge=s factual findings are to be affirmed if, in the context of the entire record, Athey are supported by evidence that a reasonable mind might accept as adequate@). Furthermore, the circumstances in Schultz were clearly distinguishable from those in the present case.  In Schultz, the six industrial jobs identified as available to the employee outside a fifty-mile radius of his home were chemically untested and so of suspect appropriateness for the employee, who was medically restricted from working in industrial settings where exposure to chemicals was possible.  In the present case, no such specific conflict with the employee=s restrictions has been identified.  Moreover, as the employer has also noted, there is nothing statutory about the fifty-mile radius guideline.  As we have stated,

 

This court has avoided any rigid, formulaic approach based upon a specific number of job contacts or the vocational or geographic breadth of an employee=s job search activities.  Rather, the issue of whether an employee=s job search efforts are adequate must be determined on a case by case basis, considering all relevant factors in an employee=s particular circumstances.

 

Miller v. Hanson Plumbing & Heating, slip op. (W.C.C.A. Sep. 21, 1993).  Finally, with regard to the employee=s assertions that A[t]here is no evidence that further job search in the Employee=s market is any more likely to produce employment within the Employee=s current restrictions and skill level@ and that the approach of Afurther job search has been tried since 2000,@ we would note with some emphasis the testimony of Ms. Lowe, to the effect that, even within the fifty-mile radius of the employee=s home, job search efforts by the employeeBand certainly job search assistance and guidance by her QRCBhave been severely lacking. Reasonably crediting Ms. Lowe=s expert opinion, the compensation judge suggested that more aggressive and QRC-guided job search be recommenced, both in a job market broader than that addressed so far and apparently also in the employee=s local job market as well.[1]

 

Retraining is not automatic and must be supported by competent evidence.  Norby v. Arctic Enters. 232 N.W.2d 773, 27 W.C.D. 48 (Minn. 1975).  Although in some circumstances a diligent job search may not be a condition precedent to qualifying for retraining, see Kostreba v. Stay Clean Janitorial, slip op. (W.C.C.A. July 31, 1990), it was not unreasonable for the compensation judge in this case to accept Ms. Lowe=s expert vocational testimony that the employee might well be able to find a job without retraining by means of a more highly structured job search that better utilizes her innate abilities.  Cf. Quirk v. M. J. Elec., 47 W.C.D. 582, 590 (W.C.C.A. 1992).  Therefore we affirm the compensation judge=s denial of the employee=s request for retraining.  See  Hengemuhle, 358 N.W.2d at 59, 37 W.C.D. at 239.