In his Findings and Order, served and filed July 30, 2003, the compensation judge concluded that the employee had not proven that the retraining course in radiologic technology was more reasonable than job search and placement in the Duluth area.  The compensation judge found the retraining plan was premature and denied the employee=s claim.  The employee appeals.

 

DECISION

 

The goal of rehabilitation is to return the employee as closely as possible to the economic status the employee would have enjoyed but for the injury.  Minn. Stat. ' 176.102, subd. 1(b).  In arriving at that goal, retraining, defined by the statute as a formal course of study in a school setting, may be necessary if it will be likely to restore impaired capacity to earn a livelihood.  Siltman v. Partridge River Inc., 523 N.W.2d 491, 51 W.C.D. 282 (Minn. 1994).  In considering whether retraining is appropriate, Anecessary@ does not mean Aindispensable@ but rather means that retraining will  likely restore the employee=s impaired capacity to earn a livelihood.  Leahy v. St. Mary=s Hosp., 339 N.W.2d 265, 36 W.C.D. 253 (Minn. 1983).  Retraining is to be given equal consideration with other rehabilitation services.  Minn. R. 5220.0750.  The reasonable conclusion to be drawn is that in order to obtain retraining, the employee need not prove that retraining is the only rehabilitation option available but, rather, that retraining is an appropriate rehabilitation option. 

 

Generally in considering whether or not retraining is appropriate, this court has applied what have come to be known as the Poole factors:  (1) the reasonableness of retraining as compared to job placement; (2) the likelihood that the employee has the abilities and interest to succeed in the proposed formal cause of study; (3) the likelihood that retraining will result in reasonably obtainable employment; and (4)  the likelihood that retraining will produce an economic status as close as possible to that which the employee would have enjoyed without the disability.^[1]

 

In the present case the employer and insurer raised a number of objections to the proposed retraining plan.  It was argued that testing had not shown the area of radiologic technician to be a field in which the employee had an interest, that the employee=s grades in college were indicative of potential academic problems in the retraining program, that the employee=s age at the anticipated end of the retraining program would make placement difficult, and that the physical demands of being a radiologic technician might be beyond the employee=s physical restrictions.  However, the central objection of the employer and insurer was that job placement had not been exhausted as a rehabilitation option.  While agreeing that the employee had demonstrated a diligent and successful job search in his community, the employer and insurer argued that  the employee=s job search should be expanded to include Duluth-Superior, since it was in Duluth that the employee anticipated attending the retraining program.

 

In his findings, the compensation judge determined that entry level jobs in radiologic technology in Duluth-Superior did not pay more than jobs in that location for which the employee was otherwise qualified, such as bus driver or utility line locator.  Based upon that determination, the compensation judge concluded that retraining was premature until the employee had conducted a job search in the Duluth-Superior area, given the Aunique@ facts in this case.  We conclude the compensation judge erred as a matter of law.

 

The two rehabilitation options presented to the compensation judge for comparison were additional job placement or retraining. If a rehabilitation plan calls for job placement, the employee is then obligated to engage in a diligent search for employment. Minn. R. 5220.0100 subp. 18; Ruppert v. Sandoz/Northrup King, 61 W.C.D. 342 (W.C.C.A. 2001).  An employee may not be required to job search outside his or her own community.  Fredenburg v. Control Data Corp., 311 N.W.2d 860, 34 W.C.D. 260 (Minn. 1981). The compensation judge=s decision does not compare job search in the employee=s community with retraining but instead compares retraining with a job search obligation which may not be imposed upon the employee. The decision goes far beyond a comparison of two equally favored rehabilitation options.

 

The employer and  insurer cite our decision in Stotts v. Polaris Industries, slip op. (W.C.C.A. Sept. 5, 2003) as authority for the compensation judge=s decision. However, in that case, we affirmed the decision of the compensation judge in denying retraining where the possibility of employment outside the employee=s community was only one of several factors, including lack of a diligent job search in the community, referred to by the compensation judge as grounds for his decision. Those additional factors do not exist in the present case.

 

The employer and insurer also point out that the compensation judge=s decision does not require the employee to job search in Duluth. While this is technically correct, under the decision, the employee must either decide to accept the limited wages in his local community or, if he wishes to pursue retraining, he will have to amend his retraining plan so that it provides for job placement and, accordingly, a diligent job search in Duluth-Superior. Failure by the employee to do so would not only result in continuing denial of his retraining request but could also lead to discontinuance of his current benefits. Minn. Stat. '176.102 subd. 13.

 

We disagree that this is a Aunique@ case which calls for this expanded obligation of the employee as a prerequisite for retraining.  No findings were made which would indicate why this case is unique.  Minnesota is a state with  87 counties, the overwhelming majority of which are non-urban and more than 100 miles away from a metropolitan area.  If this decision were affirmed, injured employees in those counties could all face the same conundrum presented to the employee here.  Such a result would place a significant burden on the ability of injured workers to receive retraining and would also represent a major change in workers= compensation law in Minnesota.

 

We believe the practical difficulties inherent in a system which would require the employee to job search in a different geographic area as a prerequisite to retraining are illustrated by the evidence in the present case.  The vocational expert for the employer listed a number of possible jobs which were said to be generally available in Duluth-Superior but no actual employers were identified and there was no evidence as to whether or not there were actual job openings for which the employee might be qualified.  The only actual job identified was that of a utility locator for SM&P Utility Resources, a job which would pay $12.00 to $14.00 an hour.  The compensation judge, referring to this position in both his findings and his memorandum, clearly found the existence of this job significant in his decision.  However, while the vocational expert stated the job was in Duluth, the exhibit prepared by the expert clearly stated the job was in Rochester.  This discrepancy was not addressed at any point in the hearing or in the findings.  Whether or not the job of utility locator actually exists is not clear from the record but it is obviously not substantial evidence or even an illustration of actual employment which would be available to the employee if he were to move to Duluth.

 

We believe the compensation judge also erred in comparing entry level wages after retraining with the wages available in other jobs without retraining.  The goal of rehabilitation is to return the employee as closely as possible to the economic status which he would have enjoyed but for the disability.  AEconomic status is to be measured not only by opportunity for immediate income but also by opportunity for future income.@  Minn. Stat. ' 176.102, subd. 1(b).  The focus on the entry level wages for radiologic technicians rather than considering the potential for future increase in wages in that occupation is not in accordance with the statute.

 

We would note also, in this regard, that the employee in this case is limited to 225 weeks of temporary partial disability benefits under Minn. Stat. ' 176.101, subd. 2. A job which pays this employee $13.00 an hour would provide him with little more than half of his pre-injury earnings.  While temporary partial disability compensation being paid now may cushion that wage loss, that benefit will soon end for the employee and it seems reasonable to consider which rehabilitation option, retraining or job placement, will minimize the economic loss the employee faces in the very near future.

 

The compensation judge also determined that the employee did not prove that his claim for housing in Duluth and travel expenses for weekly return trips to Grand Marais was reasonable.  While the employee appealed this finding he did not address the issue in his brief and it is considered waived.  Minn. Rule 9800.0900 subpart 1.

 

The compensation judge=s order denying housing and travel expense is affirmed.  The order denying approval of the retraining plan is reversed. 

 

DISSENTING OPINION

 

WILLIAM R. PEDERSON, Judge

 

I respectfully dissent.  The majority asserts that the compensation judge=s decision imposes an expanded obligation on the employee to search for work outside his home community as a prerequisite for retraining.  In this case, they assert, rather than compare the employee=s job search in his community with the retraining proposal, the judge compared retraining with a job search obligation that may not be imposed on the employee.  I disagree.

 

First of all, the judge=s decision does not require the employee to seek work outside his home community of Grand Marais.  In evaluating the employee=s retraining plan, however, the judge found it significant that retraining in radiological technology is unlikely to result in reasonably attainable employment within fifty miles of Grand Marais.  In other words, neither vocational option, job search or retraining, will produce for the employee the desired Aeconomic status@ in Grand Marais.  In order for the employee to arrive at an economic status as close as possible to that he would have enjoyed without disability, he must relocate.

 

The employee did express a willingness to relocate to the Duluth-Superior area, not only for schooling but to obtain work upon completion of retraining.  The judge found it likely that, upon completion of the program, employment would be reasonably attainable in the Duluth-Superior labor market.  He found also that the employee currently qualifies for jobs in Duluth that pay a wage comparable to entry level jobs in radiological technology.  Recognizing that the reasonableness of the proposed retraining plan must be viewed in the context of a labor market other than Grand Marais, and finding that the employee had not conducted a job search outside a fifty mile radius of Grand Marais, the judge concluded that the employee did not prove that a retraining course in radiological technology is more reasonable than searching for a job in the Duluth-Superior area.  Rather than Aexpanding@ the employee=s obligation to look for work, the compensation judge=s decision simply acknowledges that the relevant geographic area in this case is not the employee=s home community.

 

In his memorandum, the compensation judge noted that it is not clear whether the employee will be able to obtain employment in Duluth that provides an economic status as close as possible to that he would have enjoyed without disability.  However, he stated also that Acomparison of placement opportunities in the extremely limited Grand Marais job market with post-retraining opportunities in the significantly larger Duluth market is not a fair or reasonable comparison.@  I agree.  It is the employee=s burden to establish the reasonableness of a proposed rehabilitation plan.  Under the circumstances of this particular case, where neither job placement activities nor retraining are likely to result in reasonably attainable employment within a fifty mile radius of Grand Marais, the reasonableness of a retraining plan as compared to other job placement activities must be viewed in the context of a geographic area broader than the employee=s home community.  I would affirm.