ANTHONY L. DRINKWINE, Employee, v. RANDALL BROTHERS HEATING and FEDERATED MUT. GROUP, Employer-Insurer/Appellants.

 

WORKERS= COMPENSATION COURT OF APPEALS

JUNE 10, 2004

 

HEADNOTES

 

REHABILITATION - RETRAINING.  Where it was not unreasonable in light of the factors articulated in Poole v. Farmstead Foods, 42 W.C.D. 970 (W.C.C.A. 1989), the compensation judge=s award of the retraining at issue was not clearly erroneous and unsupported by substantial evidence, notwithstanding the fact that it arguably presumed ongoing improvement in the employee=s condition in reliance on the employee=s treating doctor=s somewhat speculative prognosis.

 

Affirmed.

 

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

Compensation Judge: Gregory A. Bonovetz

 

Attorneys: Mark J. Freeman, Fitch, Johnson, Larson, Walsh & Held, Minneapolis, MN, for Appellants.  Joseph J. Mihalek, Fryberger, Buchanan, Smith & Frederick, Duluth, MN, for Respondent.

 

 

OPINION

 

WILLIAM R. PEDERSON, Judge

 

The employer and insurer appeal from the compensation judge's award of retraining benefits.  We affirm.

 

BACKGROUND

 

On November 3, 2000, Anthony Drinkwine sustained a work-related injury to his low back while helping to lift a seven-hundred-pound piece of equipment in the course of his employment as a journeyman sheetmetal worker with Randall Brothers Heating & Air Conditioning, Inc.  Mr. Drinkwine [the employee] was thirty-five years old on that date and was earning a weekly wage of $971.46, with union benefits that included family health insurance, dental and life insurance, and enrollment in pension and vacation funds.  Subsequent to his injury, the employee continued to work for the employer in a reduced capacity until he was laid off for seasonal reasons on January 5, 2001.  On January 17, 2001, the employee sought treatment for continuing low back symptoms with occupational medicine specialist Dr. Lynn Quenemoen.  Dr. Quenemoen diagnosed a four-month history of gradually worsening low back pain and right lower extremity sciatica symptoms, prescribed medications and physical therapy, and ordered an MRI scan.  Randall Brothers Heating [the employer] accepted liability for the injury on January 24, 2001, and commenced payment of benefits.  The MRI scan, conducted on January 31, 2001, was read to reveal a somewhat narrow spinal canal, probably on a congenital basis, very mild and diffuse disc bulging at L2-3, L3-4, and L4-5, and mild degenerative facet changes at unspecified levels, but there was no evidence of any focal disc prolapse.

 

On February 14, 2001, the employee underwent a rehabilitation consultation with QRC Kathleen Hern, who concluded that the employee was eligible for rehabilitation services.  Within a week QRC Hern completed an R-2 Rehabilitation Plan, pursuant to which she began monitoring the employee=s medical rehabilitation, the employee being not yet released to return to work.  On April 16, 2001, Dr. Quenemoen noted that the employee=s symptoms, after seeming to improve for a week consequent to new medication, had significantly deteriorated.  She diagnosed persistent lumbosacral pain and depression secondary to that pain, continued the employee=s physical therapy and TENS unit prescriptions, and referred the employee for a consultation with rehabilitation specialist Dr. Thomas Silvestrini.  After seeing the employee on May 8, 2001, Dr. Silvestrini stated, AVery clearly, I believe [the employee] has suffered an annular strain with a very slight annular disc herniation at L4-5, and I believe this correlates well with his pain.  It is eccentric to the right, and it accounts for his right leg dural irritation.@  Noting also that the employee had Asignificant depressive features,@ which the doctor attributed to Areactive depression from [the employee=s] injury,@ Dr. Silvestrini prescribed an antidepressant, recommended pool therapy and a walking regimen, and anticipated the possibility that fusion surgery might be necessary.

 

On May 10, 2001, the employee was examined by orthopedic surgeon Dr. Timothy Garvey, who concluded that it was premature to be considering a lumbar fusion and reserved recommendation on other surgical options pending review of the employee=s MRI scans.  After reviewing the scans on June 6, 2001, Dr. Garvey ordered a lumbar discography, which the employee underwent on July 9, 2001, and which was read to reveal immediate concordant sharp back pain on the right side at L2-3, with a posterior tear of the annulus fibrosis.  On August 23, 2001, Dr. Garvey advised Dr. Quenemoen that he did not see surgery as a good option for the employee but that steroid injection might be considered.

 

On August 31, 2001, the employee was examined for the employer and insurer by orthopedist Dr. John Dowdle, who diagnosed mechanical low back pain, subjective in excess of objective findings, early disc degeneration, and myoligamentous injury of the lumbar spine.  While concluding that the employee was not malingering, it was Dr. Dowdle=s opinion that the employee did not require a fusion, that he was capable of working, even at his pre-injury job as a sheet metal worker, that he was at maximum medical improvement [MMI] with regard to his November 2000 work injury, and that he had no permanent physical impairment.

 

When he saw the employee again on October 10, 2001, Dr. Silvestrini noted that the employee continued to have significant low back pain and that therapy had been of no benefit.  He indicated that he was unsure of the exact diagnosis but that he did not believe the employee=s condition to be a simple strain, did not believe the employee to be at MMI, and did not believe that the employee was able to return to work.  On November 7, 2001, the employee underwent facet injection on the right side at L3-4 and L4-5, which was reported on that date to bring good pain relief.

On February 15, 2002, the employee underwent an extensive battery of wide ranging vocational testing, the results of which were read to indicate, in part, above average spatial aptitude and form perception, high average general learning ability and clerical perception, and low numerical aptitude and motor coordination.  The tests also indicated a high interest correlation with people in the areas of carpentry, manual or skilled trades, nature or the outdoors, and childcare, together with a low interest correlation with people in performing or entertainment, business, office practices, writing, sales, and clerical work or clerking.

 

After seeing the employee again on March 22, 2002, Dr. Silvestrini continued the employee=s restriction from work and referred the employee to neurosurgeon Dr. Richard Salib.  Dr. Salib saw the employee on April 25, 2002, and concluded that the employee was not a good candidate for surgical intervention.  On June 6, 2002, the employee underwent further facet nerve injection, from L2 through S1, and on June 27, 2002, he underwent a lumbar discogram from L1 to S1, which was read to appear normal except at L2-3, where degenerative disc disease was observed.  Eventually, on July 23, 2002, Dr. Silvestrini released the employee to return to work at sedentary activity, limited to two hours of work a day.  About a week later, on July 31, 2002, QRC Hern wrote to Dr. Silvestrini, requesting that, A[i]n the interest of keeping Mr. Drinkwine=s rehabilitation moving forward,@ the doctor would refer the employee for Aeither a Functional Capacity Evaluation to see what his permanent restrictions would be at this time, or to a pain clinic to assist him in working to decrease his pain level.@  The QRC explained that this was necessary because, limited to two hours of work a day, A[the employee=s] current restrictions would not allow him to participate in meaningful job development efforts or retraining.@  Dr. Silvestrini replied on August 14, 2002, denying the QRC=s request.

 

On September 18, 2002, Dr. Silvestrini concluded that, A[f]or all intents and purposes, . . . [the employee] is permanently disabled, however, I believe that if we can continue to condition and strengthen him over the next couple of years it is realistic to think that he would get strong enough that he would be able to sustain gainful employment at a medium duty activity level.@  On October 22, 2002, the employee underwent an independent medical evaluation by Dr. Duane Person, at the request of the employee=s attorney.  Dr. Person diagnosed chronic musculoligamentous strain, with degenerative disc disease and Aincompetent@ discs at four levels of his lumbar spine, concluding in part that the employee had reached MMI from his November 2000 work injury on January 1, 2002, and was now permanently and totally disabled from doing any substantive work.

 

On November 4, 2002, the employee was examined for the employer and insurer by rehabilitation expert Dr. Matthew Harrison.  Dr. Harrison diagnosed discogenic lumbar pain with an L2-3 annular tear and symptom magnification and psychosocial stress, with regard to which conditions the employee had, in Dr. Harrison=s opinion, reached MMI.  Dr. Harrison concluded that the employee should be able to work full time but that he should be restricted to lifting no more than fifty pounds occasionally or twenty-five pounds frequently and should avoid repeated or prolonged forward bending.  Dr. Harrison could recommend no additional treatment other than psychological intervention to assist in alleviating the employee=s psychological stress.

 

On November 6, 2002, still diagnosing annular strain, abdominal insufficiency, and postural fatigue,  Dr. Silvestrini reinstated the employee=s restriction from working, noting that the employee was Aextremely frustrated and depressed.@  The doctor remained Aoptimistic, however, that if [the employee] becomes strong and builds adequate abdominal control he will see reduction of his overall symptomatology.@  On November 22, 2002, following the employer and insurer=s filing of a Notice of Discontinuance of Benefits [NOID] in anticipation of expiration of the employee=s 104-weeks of temporary total disability benefits, the employee filed a claim petition, alleging entitlement to permanent total disability compensation ongoing from November 3, 2002, and to permanent partial disability compensation for a 21% whole-body impairment.  On December 3, 2002, the employer and insurer denied the employee=s claim.

 

On January 6, 2003, the employee and QRC Hern completed a Retraining Plan, identifying as possible educational goals degrees in either architectural technology, civil engineering technology, or aquatic biology and ecology.  In an addendum to that plan, they indicated that a brief labor market survey had revealed in part that either of the technology degrees could be expected to result in wages between $10.00 and $12.00 an hour.  Subsequently, on January 8, 2003, the employee filed also a rehabilitation request, seeking preservation of his right to request retraining benefits beyond the statutory deadline, pending issuance of more definitive work restrictions.

 

The employer completed payment of the statutory maximum of 104 weeks of temporary total disability benefits on January 14, 2003, and on that same date the employee=s November 2002 claim petition and his January 2003 rehabilitation request were consolidated for hearing.  Also on that date, at the urging of QRC Hern, Dr. Silvestrini again released the employee to work at a sedentary position, limited to no more than one hour of standing at a time, no more than occasional bending, climbing, and squatting, and no more than six hours of work each day total.  Subsequently, by early February 2003, the parties executed a Rehabilitation Job Placement Plan and Agreement [JPPA], pursuant to which the employee would look for work in housing inspection, drafting, architectural design, taxidermy, estimating, project management, environmental testing, surveying, and any other areas as agreed upon.  By a Report of Work Ability dated March 31, 2003, Dr. Silvestrini continued the employee=s restrictions to sedentary work, now under a diagnosis of L-5 radiculopathy.

 

On April 11, 2003, the employee was examined for the employer and insurer by Dr. Larry Stern.  Dr. Stern concluded in part that the employee had reached MMI with regard to his work injury, that he was permanently restricted from lifting or carrying more than thirty pounds and from doing any repetitive bending squatting or crawling, but that he had not been totally disabled from work since December 13, 2001, and was not permanently and totally disabled.

 

On April 16, 2003, rehabilitation consultant L. David Russell reported to the employer and insurer=s attorney on a vocational evaluation of the employee that he had recently conducted.  Based in part on an interview with the employee and a survey of the employee=s Duluth-Superior job market, Mr. Russell concluded in most pertinent part, in response to specific inquiries, the following:  that the employee had not yet conducted Aa diligent or sincere job search effort@; that the employee=s retraining plan was Anot specific and cannot be analyzed@; that the employee was not a reasonable candidate for a four-year science degree in light of his academic performance history; and that the employee=s chances of resulting employment following any retraining were further diminished by an expressed unwillingness to relocate.

 

On May 5, 2003, the employee and QRC Hern executed a second JPPA, essentially similar to the first, evidently in order to extend the employee=s job search for another three months.  Also on that date, they amended the employee=s retraining plan to focus on a three-year degree and eventual occupation as a civil engineering technician.  On May 8, 2003, QRC Hern reported to the insurer on a labor market survey that she had conducted in the employee=s Duluth-Superior employment area, which she reported had revealed a market for civil engineering technicians, who she said could anticipate a weekly wage of $480.00.  Ms. Hern reported also that the employee had expressed a willingness to relocate if necessary to River Falls, Wisconsin, where Athere would be more employment opportunities . . . as River Falls, WI would include within a 50-mile radius Hudson, River Falls, as well as extending to the outskirts of the metropolitan Twin Cities area.@  The employee evidently continued to search for employment through May 19, 2003, on which date he found and commenced a job as an ice rink janitor, at an hourly wage of $7.45, and ceased his job search.  The employee=s duties at the ice rink were evidently not within his restrictions, but the employee was apparently physically capable of performing them.  By letter to the employer and insurer=s attorney dated May 23, 2003, the employee amended his claim petition to include his amended retraining plan as part of the relief requested.

 

On June 2, 2003, Dr. Silvestrini eased the employee=s restrictions to permit light duty rather than merely sedentary work, but the employee was still precluded from full-time employment.  Following this easing of restrictions, the employee still did not search for alternative employment, evidently by agreement of QRC Hern and the insurer.^[1]  On June 27, 2003, rehabilitation consultant Russell testified by deposition for the employer and insurer, in part that the employee was not in need of any retraining.  It was Mr. Russell=s opinion that, with a more focused job search, the employee would be able to find employment that would return him to an economic status close to that that he had enjoyed prior to his work injury. 

 

The matter came on for hearing on July 11, 2003.  Issues at hearing included several permanent partial disability issues, the employee=s entitlement to penalties for nonpayment of permanent partial disability benefits, and the employee=s entitlement to retraining benefits.  Evidence submitted at hearing included substantial testimony from QRC Hern as well as from the employee.  By findings and order filed November 10, 2003, and amended November 13, 2003, the compensation judge, while finding that the employee was not entitled to penalties, concluded in part that the employee was entitled to compensation for a 10% permanent partial disability to his whole body and to retraining benefits consistent with his amended retraining plan of May 5, 2003.  The employer and insurer appeal from the award of retraining benefits.

 

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

 

The compensation judge found that the employee was entitled to retraining as a civil engineering technician, consistent with the amended retraining plan of May 5, 2003.  The employer and insurer contend that the record as a whole lacks substantial evidentiary support for such retraining, according to three of the factors for consideration enumerated by this court in Poole v. Farmstead Foods:  (1) Athe reasonableness of retraining as compared to returning to work with employer or other job placement activities@; (2) Athe likelihood that employee has the ability to succeed in a formal course of study in a school@; and (3) Awhether retraining is likely to result in reasonably attainable employment.@^[2]  Poole v. Farmstead Foods, 42 W.C.D. 970, 978 (W.C.C.A. 1989).^[3]  We affirm.

 

1.  The Reasonableness of Retraining Compared with Alternatives

 

At Finding 19, the compensation judge found that the employee=s QRC had contacted the employer and left a message inquiring into the possibility of the employee=s returning to work with the employer but that the employer did not return the call.  In his memorandum, the compensation judge stated also that A[t]he overwhelming weight of the evidence clearly establishes that further job placement activities would be a waste of time and money.@  The employer and insurer acknowledge that the employer had no work available for the employee, but they contend that the employee=s job search was inadequate and did not contemplate either better application of his transferable job skills or at least more cost-effective alternative retraining programs.  We are not persuaded.

 

The employee and QRC Hern were working together under an R-2 Rehabilitation Plan as early as February 2001, and they executed and worked under a JPPA as early as February 2003.  Once a rehabilitation plan is developed, a primary issue becomes whether the employee is making a good faith effort to participate in the plan.  See Bauer v. Winco/Energex, 42 W.C.D. 762, 769 (W.C.C.A. 1989).  In this case, the employee=s QRC testified that the employee at all times cooperated in good faith with her assistance in searching for work, pursuant to the employee=s rehabilitation plan and job placement plan and agreement.  The compensation judge was entitled to credit this testimony, which, especially supplemented with the employee=s job search logs of record and his own testimony as to his development of a resume and other aspects of the conduct of his job search, constituted substantial evidence upon which the compensation judge could reasonably rely in determining the reasonable diligence of the employee=s job search.

 

The employer and insurer have argued that, once he had obtained the job at the ice rink, the employee too quickly abandoned his search for higher paying work.  QRC Hern testified however, without controversion, that the insurer=s claims manager agreed at that time that further search was unnecessary.  Moreover, the ice rink job was already heavier work than the employee=s formal restrictions  permitted, and the QRC could anticipate no job within those restrictions even theoretically available that would be substantially closer to the employee=s date-of-injury wage.  The employer and insurer have suggested also that QRC Hern dismissed certain higher paying jobs for the employee simply because he lacked experience in or was not interested in such work and that, instead of relying on the QRC=s expert judgement in such matters, the judge should have relied on the contrary opinions of Mr. Russell.  However, the compensation judge expressly Aquestion[ed] the weight that can be given to Mr. Russell=s opinions,@ concluding that AMr. Russell was unaware of some rather important facts.@  This court has long deferred to a compensation judge=s choice between experts, so long as the facts upon which the chosen expert=s opinion is based are not unsupported by substantial evidence.  See Nord v. City of Cook, 360 N.W.2d 337, 342-43, 37 W.C.D. 364, 372-73 (Minn. 1985) ("the 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").  In this case there is no evidence that QRC Hern=s opinion was based on any false premises.

 

AWhether an injured employee makes a reasonably diligent search for suitable employment is a question of fact@ for the compensation judge, Hanmer v. Wes Barrette Masonry, 403 N.W.2d 839, 841, 39 W.C.D. 758, 761 (Minn. 1987), citing McClish v. Pan-O-Gold Baking Co., 336 N.W.2d 538, 36 W.C.D. 133 (Minn. 1983), and A[i]t is not for [the appellate court] to second guess th[at] factual determination,@ Id.  Therefore, and because it was not otherwise unreasonable, we affirm the compensation judge=s implicit conclusion that the employee=s search for employment alternative to formal retraining was sufficient.

 

2.  The Likelihood of the Employee=s Success in the Retraining Program

 

The employer and insurer also contend that the employee is unlikely to succeed in retraining to become a civil engineering technician.  They argue that his proven and tested academic aptitude, particularly in the area of mathematics, does not bode well for success in such a program.  They note that the employee=s current mathematical education is only at an eighth grade level, that his mathematical aptitude registers at only the twenty-fifth percentile, and that the employee even required private tutoring in math just to get through even his training in sheetmetal work, a field arguably not as mathematically demanding as civil engineering technology.  Moreover, they note, the employee=s QRC herself has reported that the employee suffers from Asevere testing anxiety@ that can be compared to a learning disability.  We are not persuaded.

 

We acknowledge that the employee=s aptitude in mathematics is certainly not high.  But, as the employee has emphasized, he has tested in the Ahigh average@ range in general learning ability, and his work and grades at Lake Superior College as well as in high school have been above average.  Nor do we consider the fact that the employee sought out tutoring in math at Lake Superior College in any way counterindicative of promise for success in the proposed retraining program.  Indeed, quite the contrary.  In light of the employee=s above average general learning aptitude as revealed by testing, his proven past success in a college curriculum,  and his apparently above average motivation and initiative, we cannot conclude that it was unreasonable for the compensation judge to find that there was a good likelihood that the employee would be able to successfully complete the retraining program here at issue.  Therefore we affirm that conclusion.  See  Hengemuhle, 358 N.W.2d at 59, 37 W.C.D. at 239.

 

3.  The Likelihood of Resulting Employment

 

The employer and insurer contend that, even if the employee should manage to complete it, the retraining here at issue is unlikely to result in employment for the employee.  They argue that QRC Hern was able to locate only one open position for a civil engineering technician in the entire Duluth/Superior labor market, that she did not expect that position to be still open upon the employee=s completion of retraining in three years, and that no evidence was presented at hearing that any other such position would then be open either.  Nor, they point out, could QRC Hern testify that any such position would ever be open to an employee who was restricted to only six hours of work a day or to only light duty work.  We are not persuaded.

 

While she may have identified only one open position for a civil engineering technician at the time of her labor market survey, QRC Hern also testified, without controversion, that A[t]here were employers that routinely hire within those positions and may possibly be hiring.@  Moreover, the employee=s express willingness to relocate if necessary in order to find employment can=t help but further broaden substantially the employee=s opportunity to find suitable work.  Whether or not a job will be available to the employee within his physical restrictions is somewhat more problematic.  It appears to be true that the employee is not currently prepared physically to step into a job as a civil engineering technician, either in the number of hours that he can work or in the heaviness of the work that he can do.  However, the employee=s rehabilitation history does suggest that he is growing physically stronger, however slowly, and Dr. Silvestrini does appear to expect his condition to improve to where he will be capable eventually of full time, medium duty work.  We grant that Dr. Silvestrini=s prognosis is somewhat speculative.  However, it is also apparent that, even presuming an eventual medium duty clearance, the employee could reasonably never even approach his substantial pre-injury economic status without retraining.  Given this fact, together with Dr. Silvestrini=s expert medical prognosis and QRC Hern=s expert vocational opinion as to the eventual availability of work for a trained civil engineering technician, it was not unreasonable for the compensation judge to conclude that the employee=s achieving a return to an economic status closest to that he enjoyed prior to his work injury was more likely via retraining as a civil engineering technician than via a different job after further job search without retraining.  Therefore, having concluded that it was also not unreasonable pursuant to the other cited factors articulated in Poole, we affirm the compensation judge=s award of the retraining at issue.  See  Hengemuhle, 358 N.W.2d at 59, 37 W.C.D. at 239.