SEAN McCOLLOR, Employee/Cross-Appellant, v. RANTALA TRUCKING, and APCAPITAL GROUP, Employer-Insurer/Appellants, and BC/BS OF MINN./BLUE PLUS, and DULUTH CLINIC and ST. MARY=S MED. CTR. (SMDC HEALTH SYSTEM), Intervenors.

WORKERS= COMPENSATION COURT OF APPEALS

AUGUST 9, 2004

HEADNOTES

CAUSATION - SUBSTANTIAL EVIDENCE.  Substantial evidence, including medical opinion, supports the compensation judge=s determination that the employee=s work injury was not a substantial contributing cause of the employee=s right carpal tunnel syndrome.

PERMANENT PARTIAL DISABILITY - SUBSTANTIAL EVIDENCE.  Substantial evidence, including medical opinion, supports the compensation judge=s determination of the level of permanent partial disability sustained as a result of the employee=s work injury.

EARNING CAPACITY - SUBSTANTIAL EVIDENCE.  Substantial evidence supports the compensation judge=s finding that the employee=s loss of earnings following his work injury accurately represented his retained earning capacity and served as a basis for calculation of temporary partial disability benefits.

REHABILITATION - RETRAINING.  Substantial evidence, including the employee=s rehabilitation records and the testimony of the employee=s QRC, the employer and insurer=s vocational expert and the employee, supports the compensation judge=s approval of the proposed two-year retraining program in the field of computer networking services technology.  

WAGES - BENEFIT PAY; WAGES - CALCULATION.  The compensation judge did not err by excluding approximated sick leave pay from the calculation of the employee=s weekly wage where the employee=s wage was not irregular and difficult to determine, and where no evidence was presented to show the amount of payment for unused sick leave the employee claimed was paid to him prior to his injury, or whether any such payment was made, and the compensation judge did not err by excluding a one-time payment, received during the 26 weeks prior to the injury, where the evidence did not clearly show the basis or nature of the payment.

Affirmed.

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

Compensation Judge: Cheryl LeClair-Sommer

Attorneys:  Thomas J. Peterson, McCollum, Crowley, Moschet & Miller, Minneapolis, MN, for the Appellants.  Mark L. Rodgers, Hazelton & Rodgers, Bemidji, MN, for the Cross-Appellant.

OPINION

MIRIAM P. RYKKEN, Judge

The employer and insurer appeal from the compensation judge=s award of temporary partial disability and permanent partial disability benefits, and from the award of a two-year retraining plan.  The employee cross-appeals from the compensation judge=s finding that the employee did not sustain an injury in the nature of right carpal tunnel syndrome as a result of his admitted work-related injury on January 31, 2001, from the compensation judge=s finding concerning calculation of the employee=s weekly wage and from the finding concerning the level of permanent partial disability sustained by the employee as a result of his right shoulder injury.  We affirm.

BACKGOUND

Sean McCollor, the employee, age 37, worked as a truck driver for Rantala Trucking, the employer, between 1996 and early 2002.  For a short time, he also worked as a warehouse foreman for the employer.  The employee=s work history includes work as a automobile mechanic trainee, operator of heavy equipment for a recycling facility, driver of a semi-trailer truck and crane operator.

On January 31, 2001, the employee sustained an injury to his right shoulder.  As he was unloading freight, he slipped and fell out the back of a trailer, catching himself by grabbing onto a side rail with his right hand.  He noted right shoulder pain and immediately consulted his family physician, Dr. D. P. Mersch, complaining of pain and discomfort in his right shoulder.  Dr. Mersch diagnosed right shoulder strain, prescribed anti-inflammatory medication and physical therapy, and restricted the employee from work.

By March 19, 2001, the employee reported to Dr. Mersch that he had developed symptoms of tingling and numbness in the first three fingers of his right hand.  The employee later underwent an EMG of the right upper extremity and was diagnosed with right carpal tunnel syndrome, a condition for which he had received medical treatment approximately 13 years earlier.  In 1988, the employee experienced numbness in his right hand and consulted Dr. Chris Tountas, who diagnosed the employee as having right carpal tunnel syndrome.  At that time, Dr. Tountas provided the employee with two cortisone injections, assigned work restrictions and advised the employee to wear a brace on his right wrist.  There is no further reference in the record to any additional treatment for carpal tunnel syndrome between 1988 and 2001.

Following his injury on January 31, 2001, the employee remained restricted from work as a result of his shoulder condition and was provided rehabilitation services.  His qualified rehabilitation consultant (QRC), Sharon Naumann, provided medical management to the employee, and later assisted in facilitating his return to work for the employer.  The employer offered the employee a light-duty position, which was approved by Dr. Mersch, and by August 2001, the employee returned to work for the employer, answering telephones.  His right shoulder symptoms persisted and he received ongoing treatment for his shoulder.  Although the employee=s physicians initially recommended conservative medical treatment, they ultimately referred him to Dr. Thomas Kaiser for a surgical consultation.  Dr. Kaiser examined the employee in November 2001 and diagnosed chronic impingement symptoms with AC arthritis on the right, in addition to partial or full thickness tearing of the rotator cuff.  He recommended arthroscopic surgery to further evaluate the employee=s shoulder condition and to repair the rotator cuff, and also recommended right carpal tunnel release surgery. 

In December 2001, the employee sustained an ankle injury, unrelated to his work,  and as a result was restricted from work until January 9, 2002.  Although the employee returned to work for the employer in early January, and provided the employer with releases from his physician allowing him to return to light-duty work, the employer apparently was unable to provide continued employment due to the employee=s work-related restrictions. 

On February 4, 2002, the employee underwent right shoulder arthroscopic surgery, including laser debridement of the joint, surgical stabilization for instability and an open decompression and rotator cuff repair.  On that date, the employee also underwent a right carpal tunnel release surgery.  By June 3, 2002, Dr. Kaiser released the employee to return to work in a light-duty capacity.  The employee continued to receive assistance from his QRC and engaged in a job search.

On August 12, 2002, the employee began working for Sykes, Inc., a DSL internet call center, performing computer trouble shooting via telephone.  Although the employee was initially hired on a part-time basis, he worked full-time and overtime hours during some weeks.  The employee earned $7.50 per hour, and continued working there until December 2002, when he and a large group of employees were laid off.  At the time of his layoff, he earned $8.25 per hour.  In January 2003, the employee began working for Computer Enterprises in Grand Rapids, Minnesota.  He testified that he worked an average of 40 to 60 hours per week at this job.  His work there included building computers, trouble shooting software and hardware problems, both in the employer=s shop and at the customers= premises, and setting up business networks.  The employee worked at this job until June 30, 2003, when he was again laid off due to a seasonal lack of work.  During this period, he earned wages between $7.50 and $8.00 per hour.

The employee=s QRC assisted him with his continued job search efforts, and ultimately explored retraining options.  She ultimately recommended that the employee obtain an Associates of Applied Science (AAS) degree in the field of computer network technology, offered by the Mesabi Range Community and Technical College in Virginia, Minnesota.  The employee filed a rehabilitation request to be retrained as a computer networking services technologist, through a two-year degree program.  The employer and insurer objected to the request for retraining.

At the request of the employer and insurer, David Berdahl performed an independent vocational evaluation on July 3, 2003.  He noted that the employee=s restrictions placed him in the medium strength level.  Mr. Berdahl found the employee to be an articulate communicator, with good demonstrated transferable skills, a demonstrated ability to learn and perform jobs, and an ability to access jobs in areas where he did not have prior experience or expertise.  He concluded that although the employee had the interest and most likely the capability of completing the proposed retraining program, he did not have reasonable prospects for occupational success post-graduation due to the current nature of the labor market.  Mr. Berdahl=s firm conducted a labor market survey which indicated that there was a Aglut@ in the labor market with more individuals seeking employment in the computer field than there were jobs available, and he therefore recommended against pursuit of a retraining program in the computer industry.  Mr. Berdahl instead strongly recommended that the employee explore other options in the areas of retail work, customer service, dispatching, hospitality industry and service writing in the automobile industry.  He concluded that the employee had good prospects of finding employment as a service writer, and that such a position could provide earnings in the range of $24,000-$30,000 per year. 

The employee continued to seek work within his restrictions.  His physical work capabilities have been addressed by his treating physicians and Dr. Jack Drogt, independent medical examiner, who examined the employee in August 2001, July 2002 and November 2002.  Dr. Drogt concluded that the employee injured his right shoulder on January 31, 2001, but that he did not sustain a right carpal tunnel syndrome as a result of that incident.  Dr. Drogt concluded that by November 22, 2002, the employee had reached maximum medical improvement with regard to his shoulder condition, and that he sustained a 6% permanent partial disability of the whole body.^[1]  Dr. Drogt determined that the employee might be capable of driving a semi-trailer truck depending on the nature of the vehicle, its handling and the nature of the controls available to him, but that he would be incapable of his pre-injury job duties if he was required to load and unload, use his upper extremities repetitively at or above shoulder level, or to stress his upper extremities with lifting-related tasks.  Dr. Drogt also determined that the employee is capable of light-duty work and perhaps medium-duty work with limited use of his upper extremities above the shoulder level and within lifting restrictions.

The employee=s treating surgeon, Dr. Kaiser, concluded that the employee sustained both a right shoulder injury and developed right carpal tunnel syndrome as a result of his January 31, 2001 injury.  He determined that the employee had reached maximum medical improvement from his injuries by January 17, 2003, and that he sustained a 6% permanent partial disability of the whole body for his rotator cuff tear in his right shoulder^[2] in addition to a 3% permanent partial disability of the body as a whole due to his distal clavicle excision.^[3]  Dr. Kaiser determined that the employee could perform medium-level work, within lifting restrictions and restrictions on work above shoulder level.

Dr. Larry Stember, D.C., who conducted an independent examination at the employee=s request, concluded that the employee=s carpal tunnel syndrome was causally related to his work injury of January 31, 2001.  Dr. Stember assigned an overall permanent partial disability rating of 22% whole body impairment, which included ratings for loss of motion of the shoulder joint, along with a rating for skin lesions resulting from his carpal tunnel release.  He concluded that the employee was well-suited to continue working in the computer consulting business, and recommended a 20-pound lifting restriction.

Procedural History

On April 19, 2002, the employee filed a claim petition, claiming entitlement to payment of temporary total and temporary partial disability benefits and medical expenses. In addition, the employee filed an objection to discontinuance, in response to the earlier discontinuance of benefits at the time the employee remained off work as a result of his ankle injury.   The employee later amended his claim petition to include permanent partial disability benefits and filed a rehabilitation request for retraining benefits.

The employee=s multiple claims were consolidated for hearing before a compensation judge, which was held on September 19, 2003.  In her Findings and Order dated November 19, 2003, the compensation judge awarded payment of temporary total disability benefits from January 10 through August 23, 2002, and December 15, 2002, through January 13, 2003.  That award was unappealed.  The compensation judge also awarded temporary partial disability benefits for the periods of time the employee was employed with Sykes, Inc., and Computer Enterprises in 2002 and 2003, based on her conclusion that the employee=s earnings for those employers represented his retained earning capacity.

The compensation judge found that the employee sustained a total of 8.82% permanent partial disability to the body as a whole due to his right shoulder condition, based upon a combination of 6% and 3% ratings assigned by Dr. Kaiser;^[4] the compensation judge awarded a credit for the permanency benefits already paid to the extent of 6% whole body impairment.  In addition, the compensation judge awarded the employee=s claim for retraining, finding that the employee had cooperated with rehabilitation services and had conducted a diligent job search for employment since May 2001, and that retraining Awas a reasonable alternative to continued job placement activities@ since the employee=s extensive job search failed to provide him with a job that would produce an economic status as close as possible to his preinjury wage.

The compensation judge also found that the employee did not sustain an injury in the nature of a right carpal tunnel syndrome as a result of his admitted January 31, 2001, work injury.

In addition, the compensation judge denied the employee=s claims for additional permanent disability benefits beyond 8.82% whole body impairment, denying the employee=s claims that he was entitled to additional permanency due to his loss of range of motion in his right shoulder and due to cosmetic disfigurement from skin lesions resulting from his carpal tunnel surgery.

The employer appeals from the compensation judge=s award of temporary partial disability benefits, from the award of additional permanency benefits beyond the amount already paid, and from the award of a two-year retraining plan. The employee cross-appeals from the compensation judge=s finding that the employee did not sustain an injury in the nature of right carpal tunnel syndrome as a result of his admitted work-related injury on January 31, 2001, from the compensation judge=s finding concerning calculation of the employee=s weekly wage and from the finding concerning level of permanent partial disability to the right shoulder sustained by the employee.   We affirm.

STANDARD OF REVIEW

On appeal, the Workers' Compensation Court of Appeals 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 (2004).  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).  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, findings of fact should not be disturbed, even though the reviewing court might disagree with them, "unless 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.@  Northern States Power Co. v. Lyon Food Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975).

"[A] decision which rests upon the application of a statute or rule to essentially undisputed facts generally involves a question of law which [the Workers' Compensation Court of Appeals] may consider de novo."  Krovchuk v. Koch Oil Refinery, 48 W.C.D. 607, 608 (W.C.C.A. 1993), summarily aff=d (Minn. June 3, 1993).

DECISION

1. Nature of Injury

The employee appeals from the compensation judge=s denial of his claim that he sustained a right carpal tunnel syndrome as a result of his 2001 work-related injury.  The compensation judge found that the employee=s carpal tunnel symptoms are related to his pre-existing condition and not to his work injury of January 31, 2001, specifically relying on the opinion of Dr. Drogt who had concluded that there is no evidence to suggest that the employee=s carpal tunnel syndrome developed as a result of his work injury in 2001. 

The determination of whether the employee sustained a compensable personal injury  is a question of fact for the compen­sation judge.  See Felton v. Anton Chevrolet, 513 N.W.2d 457, 50 W.C.D.181 (Minn.1994); Jacobo­witch v. Bell & Howell, 404 N.W.2d, 270, 274, 39 W.C.D. 771, 778 (Minn. 1987).  We ac­knowledge that different conclusions could be drawn from the evidence in this case, in view of the medical opinions provided by Dr. Kaiser and Dr. Stember, who both concluded that the employee=s carpal tunnel syndrome developed as a direct result of the January 31, 2001, injury.  Where, however, the evi­dence conflicts or more than one inference may reasonably be drawn from the evidence, the compensation judge=s findings must be af­firmed.  Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 60, 37 W.C.D. 235, 240 (Minn. 1984).  And, generally, a compen­sation judge=s choice between conflicting expert opinions must be upheld, unless the opinion of the expert lacks foundation.  See Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 64 (Minn. l985)  In this case, the compensation judge=s determination that the employee=s right carpal tunnel syndrome was not causally related to his 2001 work injury is supported by medical evidence in the record, including the opinion of Dr. Drogt, and we therefore affirm.

2. Permanent Partial Disability

The compensation judge determined that the employee sustained 8.82% permanent partial disability to the body as a whole, as a result of his right shoulder injury.  She relied on the opinion of the employee=s treating surgeon, Dr. Kaiser, in reaching that determination.  The employer and insurer appeal, contending that the employee=s permanency relative to his shoulder condition is limited to 6% whole body impairment, as assigned by Dr. Drogt, and for which they have already compensated the employee.

The employee cross-appeals, claiming additional permanent partial disability for loss of range of motion in his right shoulder and skin lesions resulting from carpal tunnel surgery.  However, in his brief, the employee waived any claim to additional permanent partial disability relative to his shoulder condition and argued that the rating awarded by the compensation judge for that condition was appropriate.  Although the employee also cross-appealed from the compensation judge=s findings concerning additional permanency claimed due to surgical scarring, the employee did not address that claim in his brief and therefore we consider that portion of his cross-appeal to be waived.  See Minn. R. 9800.0900, subp.1.

The issue of permanent partial disability is a question of fact to be determined by the compensation judge which must be affirmed if it is supported by substantial evidence.  Jacobowitch v. Bell & Howell, 404 N.W.2d 270, 39 W.C.D. 771 (Minn. 1987).  Dr. Drogt opined that the employee was entitled to 6% permanent partial disability under Minn. R. 5223.0450, subp. 3A(2) for a chronic rotator cuff tear.  Dr. Kaiser agreed with that rating but also assigned a 3% rating for distal clavicle excision under Minn. R. 5223.0450, subp. 2C.  Neither Dr. Drogt nor Dr. Kaiser believed that the employee was entitled to any further permanent partial disability ratings for limitations in his range of motion.  The compensation judge determined that although Minn. R. 5223.0450, subp. 2.D., is an exclusive category within the permanency schedules, she concluded that the additional 3% rating afforded by that category most closely represented the employee=s post-surgical condition.  See Grashorn v. Boise Cascade Corporation, slip op. (W.C.C.A. Mar. 6, 2002) (under the terms of the rules, an employee may not receive a separate rating for any loss of function caused by a distal clavicle resection, but Athe employee may receive a rating for both the distal clavicle resection and a torn rotator cuff, because they constitute separate impairing conditions.@). 

The compensation judge relied on Dr. Kaiser=s opinion concerning the level of the employee=s permanent partial disability, even though she had rejected his opinion on the causation of the employee=s carpal tunnel syndrome.  AA compensation judge generally is free to accept a portion of an expert=s opinion while rejecting other portions.@  Johnson v. L.S. Black Constr., Inc., slip op. (W.C.C.A. Aug. 18, 1994) (citing City of Minnetonka v. Carlson, 298 N.W. 2d 763, 767 (Minn. 1980)(a factfinder generally Amay accept all or only part of any witness= testimony.@).  See also Klasen v. American Linen, 52 W.C.D. 284, 292 (W.C.C.A. 1994).  In addition, as a general rule, unless the opinion of the expert lacks foundation, the compen­sation judge=s choice between experts must be upheld.  See Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 64 (Minn. l985); Yonke v. Continental Machines, Inc., slip op. (W.C.C.A. Feb. 13, 2001).   In this case, substantial evidence of record, including Dr. Kaiser=s expert medical opinion, supports the compensation judge=s finding that the employee was entitled to a 8.82% permanent partial disability rating for his shoulder condition.  Accordingly, we affirm.

3. Weekly Wage Rate

The employee appeals the compensation judge=s determination of his weekly wage, arguing that the judge erred by failing to include payment for unused sick leave, and for bonus pay, in the weekly wage calculation.  The compensation judge concluded that the employee=s weekly wage rate at the time of his injury was $625.00; the employee argues that he earned approximately $633.66 at the time of his injury, based on inclusion of sick leave pay, available as wages if not taken as "sick leave"during a calendar year, and a "bonus" payment he was paid for an additional driving task during the 26 weeks preceding his work injury.

The object of a wage determination is to arrive at a fair approximation of the employee=s probable future earning power which has been impaired or destroyed by the injury.  Sawczuk v. Special School District 1, 34 W.C.D. 282, 312 N.W.2d 435 (Minn. 1981).  See also Bradley v. Vic=s Welding, 39 W.C.D. 921, 405 N.W.2d 243 (Minn. 1987); Beissel v. Marschall Line, Inc., 58 W.C.D. 470 (W.C.C.A. 1998).  

The employee was paid a salary of $625.00 per week and apparently did not submit hourly time records to the employer.  The employee=s wage records do not indicate the number of hours worked per week, only the amount paid.  The wage records submitted into evidence indicated that the employee was paid $625.00 per work for 25 of the 26 weeks preceding the injury.  The compensation judge could reasonably conclude that the employee=s wage was not irregular and difficult to determine.  Other items such as vacation, holiday and sick pay, overtime pay, attendance bonuses, performance bonuses and incentive bonuses are included in the daily wage calculation only if the statutory formula is applied to calculate a wage that is Airregular or difficult to determine.@  See Minn. Stat. ' 176.011, subds. 3 and 18; Fougner v. Boise Cascade, 43 W.C.D. 281, 460 N.W.2d 1 (Minn. 1990); see also Boschee v. Barry Blower, slip op. (W.C.C.A. Aug. 25, 1989); Anderson v. Ford Motor Co., 46 W.C.D. 24 (W.C.C.A. 1991); Senser v. Minnesota Vikings, 42 W.C.D. 688 (W.C.C.A. 1989).  Since the employee=s wage was not irregular and difficult to determine, the compensation judge did not err by not including the claimed sick leave pay in the wage determination.^[5]

The compensation judge also denied inclusion of a $100 bonus or payment earned and received during the 26 week period before the employee=s injury.  The employee argues that his estimated "bonus" of $100 should have been included in the calculation of his weekly wage, contending that he typically earns that same bonus approximately every six months.

We cannot discern the nature of this $100 payment from the wage records that are in evidence.  Although the employee=s wage records show that the employee was paid a gross wage of $625.00 during 25 of the 26 weeks before his injury, during the remaining week his gross wage is listed as $725.00.  The $100 increase for that week was not identified as "overtime" or "bonus."  The only evidence of the nature of the additional $100 payment is found in the employee=s testimony.  He testified that during one week in that 26-week period, he earned an additional payment or "bonus" of $100 for making an extra delivery to the Twin Cities.  He testified that he typically drove this extra freight run to the Twin Cities a few times each year, and was paid $100 for each extra delivery; he also testified that the number of times he earned this type of payment fluctuated from year to year.

The employee argues that this estimated payment or bonus, $100 every six months, should be included in his weekly wage calculation.  The nature of a payment determines whether it can be included in the calculation of an employee=s weekly wage.  For example, benefits which are not payable directly to the employee, not used at the employee=s discretion, and that are not taxable as wages, are not included in the calculation of weekly wage because such benefits do not reflect earning capacity.  See Carothers v. Pride Mechanical, slip op. (W.C.C.A. Nov. 4, 1994) (citing Boschee v. Barry Blower, slip op. (W.C.C.A. Aug. 25, 1989)).  However, receipt of a bonus which is dependent on personal performance is appropriately considered includable earnings for weekly wage purposes.  Anderson v. Ford Motor Co., 46 W.C.D. 24 (Minn. 1991), summarily aff=d (Minn. Jan. 22, 1992).

In this case, since the employee had to perform a specific task to receive the payment, it does not appear to be a "bonus" in the traditional sense.  It is unclear whether this payment is considered to be an overtime payment, even though it was ostensibly paid for additional work performed by the employee.  Even if it were to be considered an overtime payment, receipt of overtime on such an infrequent basis is specifically excluded by statute from the wage calculations.  Minn. Stat. ' 176.011, subd. 3.  Since the evidence does not clearly show the basis for the payment or the nature of the payment, the compensation judge did not err by excluding the $100 payment from the weekly wage determination.  Accordingly, we affirm.

4. Award of Temporary Partial Disability

The compensation judge awarded temporary partial disability benefits to the employee for two periods of time he worked, in 2001 and 2002.  She concluded that his wages  were presumed to represent his retained post-injury earning capacity.  The employer and insurer appeal, arguing that the employee failed to diligently explore other employment options, such as those identified by Mr. Berdahl, that would have paid him close to or exceeding his pre-injury wage.

Minn. Stat. ' 176.101, subd. 2 requires that temporary partial disability benefits be paid based on the difference between the weekly wage of the employee at the time of the injury and the wage the employee is able to earn in the employee=s partially disabled condition.  To demonstrate entitlement to temporary partial disability benefits, an employee must show a work-related physical disability, an ability to work subject to the disability, and an actual loss of earning capacity that is causally related to the disability.  See Krotzer v. Browning-Ferris/Woodlake Sanitation Serv., 459 N.W.2d 509, 43 W.C.D. 254 (Minn. 1990); Dorn v. A.J. Chromy Constr. Co., 310 Minn. 42, 245 N.W.2d 451, 29 W.C.D. 86 (1976).  The employee has the burden of establishing a diminution in earning capacity that is causally related to the disability.  Arouni v. Kelleher Constr., Inc., 426 N.W.2d 860, 864, 41 W.C.D. 42, 48-49 (Minn. 1988).  However, when a disabled employee who is released to return to full-time work finds a full-time job, the earnings from such employment create a presumption of earning capacity.  Roberts v. Motor Cargo, Inc., 258 Minn. 425, 104 N.W.2d 546, 21 W.C.D. 314 (1960); Einberger v. 3M Co., 41 W.C.D. 727 (W.C.C.A. 1989).  In appropriate circumstanc­es, this presumption can be rebutted with evidence indicat­ing that the employee's ability to earn is different than the post-injury wage.  Patterson v. Denny's Restau­rant, 42 W.C.D. 868, 874 (W.C.C.A. 1989).   In order to establish an earning capacity different from actual earnings, there must, however, be more presented than evidence of a hypothetical job paying a theoreti­cal wage.  Saad v. A.J. Spanjers Co., 42 W.C.D. 1184, 1194 (W.C.C.A. 1990).

The employer and insurer argue that the employee=s earnings for Sykes, Inc. and Computer Enterprises do not accurately reflect the employee=s earning capacity, arguing that the employee and his QRC failed to diligently explore other employment options, such as customer service, hospitality positions, retail sales, and service writing positions suggested by Mr. Berdahl.  While a reasonable and diligent job search is not required for an award of temporary par­tial disability benefits, the nature and extent of any job search is evidence which the compensation judge may con­sider in determining whether the employee=s wage loss was causally related to the work injury.  Nolan v. Sidal Realty Co., 53 W.C.D. 388 (W.C.C.A. 1995), citing Johnson v. Axel Ohman, 48 W.C.D. 198 (1992), summarily aff=d (Minn. Mar. 2, 1993). Further, an employee generally does not lose eligibility for temporary partial disability benefits by failing to search for higher-paying work when he is already employed on a full-time basis.  Peters v. Egan & Sons, 54 W.C.D. 262 (W.C.C.A. 1996); see also Tossey v. City of St. Paul, 60 W.C.D. 74 (W.C.C.A. 1999). 

The records in evidence, including the employee=s rehabilitation records and testimony by the QRC, show that the employee and QRC explored job possibilities in the same career areas suggested by Mr. Berdahl, and that the employee was unable to obtain any job offers in those fields.  Since January 2002, the employer has had no work available to the employee within his restrictions.  By August 2002, the employee finally obtained work in the computer field, and worked for two separate employers until June 2003.  Although both jobs were initially considered to be part-time, the employee testified that he typically worked full-time or overtime hours for both employers.  While working at those jobs, the employee continued to seek alternative employment, and as of August 28, 2003, the employee and QRC had made approximately 1900 job contacts, an amount which the compensation judge found to be extensive.  Where evidence is conflicting or more than one inference may reasonably be drawn from the evidence, the findings of the compensation judge are to be upheld.  Redgate v. Sroga's Standard Serv., 421 N.W.2d 729, 734, 40 W.C.D. 948, 957 (Minn. 1988).  It is the compensation judge=s responsibility, as trier of fact, to resolve conflicts in expert testimony.  Nord,  360 N.W.2d at 342, 37 W.C.D. at 372.  The compensation judge could reasonably conclude that the employer and insurer had not rebutted the presumption that the employee's ability to earn during the relevant periods of time was different than the wage he earned in those positions.  Therefore, we affirm.

5. Award of Retraining Benefits

The compensation judge awarded the employee retraining benefits for a two-year  program.  The employer and insurer appeal, arguing that other job opportunities exist in the labor market which would provide the employee a wage comparable to his pre-injury wage without the need for the employee to undergo what they deemed to be an expensive and time-consuming retraining program.

Vocational rehabili­tation, including retraining, is designed to return the employee to suitable gainful employ­ment.  ASuitable gainful employment@ is employment which is reasonably attainable and which of­fers an opportunity to restore the injured employee as soon as possible to employment which produces an economic status as close as possible to that which the employee would have enjoyed without the disability. Minn. Stat. '' 176.011, subd. 23, 176.102, subd. 1(b); Minn. R. 5220.0100, subp. 34; 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 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).

It is evident that the compensation judge thoroughly reviewed the vocational evidence and testimony and applied the Poole factors to the facts of this case.  She summarized her analysis as follows:

The two-year retraining plan as a Computer Networking Services Technologist is reasonable and necessary.  Although the job market for computer networking is problematic due to the general economy, with the employee=s prior computer related experience, maturity, and positive presentation, the employee is reasonably likely to attain employment subsequent to retraining. Retraining will be likely to produce an economic status as close as possible to that enjoyed without disability.  If [he is] able to secure a position in the field, the employee=s earnings are expected to range from $300 to $900 per week; the higher wage range is expected with increasing experience.  The employee has a high prospect for success in any post secondary educational program considering his result with testing.  According to the opinion of David Berdahl, QRC, the employee was a high wage earner and some type of retraining is not an unreasonable avenue to consider and pursue.  The employee has a high interest in the computer field as shown by obtaining two entry-level positions in the computer field subsequent to the work injury.  Retraining is reasonably compared to job placement activities since the past extensive job search failed to produce an economic status as close as possible to the preinjury wage.  The personal injury of January 31, 2001, is a substantial contributing factor to the necessity for the retraining plan.

(Finding No. 13.)

The employer and insurer do not dispute the employee=s ability to successfully complete the proposed retraining program, one of the factors cited in Poole.    However, they contend that current job opportunities exist in the employee=s labor market that would pay the employee a wage comparable to his pre-injury wage and which would obviate his need for retraining.  They also argue that the proposed retraining plan does not offer realistic prospects for the employee, due to the nature of the labor market.  The compensation judge compared the proposed retraining program with continued job search, and concluded that in spite of the employee=s full cooperation with rehabilitation services and his extensive job search over a substantial period of time, he had not located a job that would produce a wage Aas close as possible@ to his date-of-injury wage.  She also evaluated the option of a part-time retraining program, as had been suggested by Mr. Berdahl, and concluded that A[c]ontinued part-time employment along with part-time schooling is not a reasonable option since the coursework will take longer, the demands on the employee and his family will be great, and success in the program may be affected.@  The compensation judge referred to Mr. Berdahl=s recommendation that the retraining plan be placed in abeyance, but stated that he Afails to offer reasonable prospects to achieve the desired goals of the retraining plan within a reasonable period of time.@  (Memo, p. 10.) 

Each case must be analyzed on its own facts with a view to determining the ap­proach or plan that will most realistically result in a return to suitable gainful employment.  Anderson v. Ford Motor Co., 46 W.C.D. 24, 30 (W.C.C.A. 1991); Stone v. General Office Prods., slip op. (W.C.C.A. Aug. 13, 1998); McCann v. Sysco/Continental, slip op. (W.C.C.A. Dec. 2, 1993); Kostreba v. Stay Clean Janitorial, slip op. (W.C.C.A. July 31, 1990).  In view of the substantial evidence in the record that supports the compensation judge=s award of the proposed retraining plan, including the employee=s testimony, expert vocational opinions and rehabilitation records, we affirm the compensation judge=s approval of the proposed retraining plan.  Hengemuhle, 358 N.W.2d at 59, 37 W.C.D. at 239.