RONALD SEVER, Employee, v. RADOTICH HEATING & SHEET METAL and AP CAPITAL, INC., Employer-Insurer/Appellants.

STATE OF MINNESOTA

WORKERS= COMPENSATION COURT OF APPEALS

No. WC04-177

HEADNOTES

REHABILITATION - RETRAINING.  Where it was reasonably supported by analysis under all of the factors identified in Poole v. Farmstead Foods, 42 W.C.D. 970 (W.C.C.A. 1989), the compensation judge=s award of retraining benefits was not clearly erroneous and unsupported by substantial evidence.

TEMPORARY PARTIAL DISABILITY - SUBSTANTIAL EVIDENCE.  Where the employee had petitioned for temporary total disability benefits during the period of any retraining program that might be certified by the judge, and where, at trial, the employee=s counsel advised the court that his client was working two or three hours a week under a work/study program and that the judge should take earnings in that program into consideration in any award of wage loss benefits should the retraining plan be approved, the compensation judge=s award of temporary partial disability benefits concurrent with retraining benefits was not clearly erroneous and unsupported by substantial evidence, notwithstanding the employer and insurer=s contention that the employee=s work/study earnings did not represent his true earning capacity and that they had not received proper notice of the claim prior to trial.

Affirmed.

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

Compensation Judge: Gregory A. Bonovetz

Attorneys: Gina M. Stanaway, Brown & Carlson, Minneapolis, MN, for the Appellants. Thomas R. Longfellow, St. Paul, MN, for the Respondent.

OPINION

WILLIAM R. PEDERSON, Judge

The employer and insurer appeal from the compensation judge=s approval of a college degree retraining program in accounting at the Mesabi Range Community and Technical College and the University of Minnesota Duluth, and from the judge=s award of temporary partial disability benefits during the retraining program.  We affirm.

BACKGROUND

The employee, Ronald Sever, was born in 1962 and graduated from Chisholm High School in 1980.  Following high school, Mr. Sever [the employee] worked primarily in the construction trades, both as an employee and as a self-employed individual.  In May of 1993, the employee began work as a laborer with the employer herein, Radotich Heating & Sheet Metal [the employer].  After working for about ten months with the employer and then for about two years with Northern Pipeline, the employee returned to work with the employer in February 1996, again as a general laborer.  The employee also began at that time receiving training from the employer in HVAC installation and sheet metal fabrication.

On December 22, 1999, the employee sustained an admitted injury to his right ankle while working for the employer.  On that date he evidently was earning $687.20 per week.[1]  The employee began losing time from work on January 3, 2000, and he underwent surgery to the injured right ankle on February 3, 2000.  After a stint of physical therapy, the employee was released to return to work with restrictions on March 27, 2000.  The employee returned to his job with the employer, where his work came also to entail plumbing tasks, for which work his wages were evidently higher than his date of injury wage.

The employee continued to experience pain, swelling, and catching in his right ankle, and on June 11, 2001, he was seen in consultation by orthopedist Dr. Scott McGarvey.  Dr. McGarvey diagnosed post-traumatic changes in the tibiotalar and subtalar joints, a possible loose body, and a malunited lateral process fracture.  He recommended a second surgery, and on August 7, 2001, he performed a debridement of the right ankle and subtalar joint, with a removal of the loose body and a modified Brostrom ligamentous repair.  Following his surgery, the employee was prescribed further physical therapy and medications for pain.

The employee obtained no long term benefit from the surgery and did not return to work for the employer.  Dr. McGarvey discussed with the employee the risks, benefits, expectations, and potential complications of arthrodesis.  The employee decided against additional surgery, and by March of 2003 Dr. McGarvey had issued permanent restrictions limiting the employee to sedentary work, restricted from standing or walking more than one hour in an eight-hour day.

On August 27, 2003, the employee was seen by orthopedist Dr. Stephen Barron at the request of the employer and insurer.  Dr. Barron obtained a history from the employee, reviewed the pertinent medical records, and performed a physical examination.  He concluded that the employee suffered from degenerative arthritis of his tibiotalar joint that was causally related to the work injury of December 22, 1999.  Dr. Barron stated that, in his opinion, the employee was a candidate for tibiotalar fusion.  He concluded also that the employee was capable of sedentary work only and should not lift more than five to ten pounds or stand for more than one hour at a time.

Having accepted liability for the employee=s right ankle injury, the employer and insurer initially paid temporary total disability benefits to the employee from January 3, 2000, through March 26, 2000.  Following the employee=s unsuccessful attempt to return to work, they also paid temporary total disability benefits from August 7, 2001, through May 12, 2003.  Temporary total disability benefits were then discontinued based on the employee=s having been paid the statutory maximum of 104 weeks.

Early in 2000, the insurer assigned a disability case manager to assist the employee with medical management and with attempts to stabilize his right ankle.  During this medical management period, the employee underwent various surgical procedures and was issued braces for his lower right leg.

In September 2002, the employee underwent a vocational assessment conducted by QRC Greg Kestly.  Mr. Kestly noted that the employee wears a rigid brace at all times, must avoid uneven terrain and stairs, and is no longer able to perform construction work.  Based on a battery of tests administered to the employee, Mr. Kestly concluded that the employee Awould be considered a good candidate for formal skill enhancement if strongly motivated to do so.@

By early January 2003, the employee had decided against additional surgery, and QRC Kestly noted on January 22, 2003, that Athe employee is interested in continuing his retraining research which is being supported by the insurer.@  Direct job placement or job searching activity was not part of the employee=s rehabilitation plan.  On April 22, 2003, the employee filed a claim petition, seeking certification for a retraining program in radiology or, in the alternative, in bookkeeping/accounting or computer programming.

About this time, the employee completed testing for admission to Mesabi Community College.  QRC Kestly discussed the employee=s scores with an admissions counselor at the college and was told that the employee=s scores were generally Aas good if not somewhat better than the typical high school student applying for enrollment.@  The counselor recommended that that summer the employee take a refresher course in college writing and an algebra course to prepare him for additional schooling.  These refresher courses each covered ten weeks of schooling in five weeks.  The insurer evidently agreed to pay for the courses.  The employee successfully completed the summer courses, received an >A= in his writing course and a >B= in his algebra course.

In early 2003, the employee and his QRC actively investigated various retraining programs in medical-related fields.  It was eventually concluded that the medical careers being considered were beyond the employee=s physical capabilities.  The employee then turned his attention to a potential career in accounting.  The employee and his QRC researched the viability of an accounting program by consulting with teachers, counselors, and people in the profession.  It was concluded that a four-year degree in accounting was a reasonable match.  The QRC also looked at two-year programs but concluded that a shorter program would not return the employee to the economic status he once enjoyed.

On September 26, 2003, the employee and his QRC signed a retraining plan leading to a Bachelor of Accounting degree, with the first two years of study at the Mesabi Community College and the final two years at the University of Minnesota Duluth.  The anticipated cost for the program, excluding wage-replacement benefits, was $49,746.00.  The retraining plan included the retraining goals and all of the information regarding the course of study that is required under the retraining plan and Minn. R. 5220.0750, subp. 2H.

The employee actually began his retraining program on about September 7, 2003, and he completed his first semester at Mesabi Community College in December 2003.  His first semester classes included sociology, algebra, college writing, and interpersonal communication.  The employee completed the semester with a 3.75 grade point average and made the Dean=s list.  While completing his studies, the employee also worked two to three hours per week in the school library on a work study program, earning approximately $7.00 per hour for this work.

On September 19, 2003, the employee was evaluated for the employer and insurer by vocational expert David Berdahl, who met with the employee and reviewed his educational, vocational, and medical background.  In a report dated October 21, 2003, Mr. Berdahl concluded that the proposed retraining program did not meet the criteria set forth in Poole v. Farmstead Foods, 42 W.C.D. 970, 978 (W.C.C.A. 1989), and therefore was not a reasonable retraining plan.

The employee=s claims came on for hearing on March 9, 2004.  Issues at hearing included the appropriateness of the proposed retraining program in light of the Poole criteria and the weekly compensation that the employee would be entitled to during the course of his retraining.  Witnesses at hearing included the employee, QRC Greg Kestly, and vocational expert David Berdahl.  In Findings and Order issued March 16, 2004, the compensation judge concluded in part that the employee is permanently precluded from returning to his date of injury employment and is effectively precluded from ever returning to any of the employment activities that he performed as an adult.  Reviewing the evidence in light of the Poole factors, the judge concluded that the proposed retraining plan is reasonable and appropriate for the employee and that the employee is entitled to temporary partial disability benefits as he undergoes his retraining program.  The employer and insurer appeal.

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, 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, 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

1.  Retraining

Retraining an injured worker in another occupation may be appropriate if the retraining Awill materially assist the employee in restoring his impaired capacity to earn a livelihood.@  Norby v. Arctic Enters., Inc., 305 Minn. 519, 521, 232 N.W.2d 773, 775, 28 W.C.D. 48, 50 (1975).  As noted in Poole v. Farmstead Foods, 42 W.C.D. 970, 978 (W.C.C.A. 1989),

Areas of concern in evaluating an employee=s entitlement to retraining . . . include: (1) the reasonableness of retraining as compared to returning to work with 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 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.

The compensation judge found that the retraining plan entered into by the employee and his QRC on September 26, 2003, with a goal of obtaining a Bachelor of Accounting degree is reasonable and appropriate and will return the employee to the economic status he would be enjoying but for the permanent effects of the work injury.  The employer and insurer contend that the record as a whole lacks substantial evidentiary support for such retraining according to the factors for consideration enumerated in Poole.  We affirm.

(a)  The Reasonableness of Retraining Compared with Alternatives.  At Finding 19, the compensation judge found that the employee is effectively precluded not only from returning to his date of injury employment but also from returning to any of the employment which he had performed during his adult life.  At Finding 20, the judge concluded that, in light of the economic situation on the Iron Range, the likelihood that the employee will find, through direct placement, employment matching his date of injury economic status is extremely remote at best.  And at Finding 21, the judge found that, based on the employee=s current training and work history, the employee has few if any transferable skills that he can use, given his permanent physical limitations.  Therefore, the judge determined, it is essential that the employee obtain substantial skills enhancements.  The employer and insurer acknowledge that  the employer had no work available for the employee, but they contend that, because direct job search was never tried, there was no analysis of available jobs and alternatives to retraining within the relevant labor market.  We are not persuaded.

The employer and insurer have argued that the first Poole factor has not been met because direct job placement was never tried.  David Berdahl testified that viable employment options existed on the Iron Range at wages between $12.00 and $15.00 per hour.  Given that such jobs were available, Mr. Berdahl concluded that it was certainly possible that the employee could return to work through direct job placement.  On the other hand, QRC Kestly testified that, because the employee has worked exclusively in the area of physical labor, he had few, if any, transferable skills for any type of entry-level sedentary work.  Mr. Kestly testified that job search would therefore be a waste of time in this case.  He proposed retraining because, based on his knowledge of the Iron Range job market, available jobs would not fall within the employee=s physical restrictions and restore his earning capacity.

In his memorandum, the judge acknowledged Mr. Berdahl=s testimony but specifically noted that the various jobs cited by Mr. Berdahl Afailed to take into account the employee=s lack of transferable skills@ and that Aeven under a best case scenario none of those theoretical jobs would return the employee to the economic status which he would have enjoyed but for the work injury.@  At Finding 25, the judge found,

Because of the dire economic situation on the Iron Range and the intense competition for any employment opportunities the employee, with his profound physical limitations coupled with his age, is most unlikely to find any form of employment through job searching or direct placement activities.  Even if such efforts were successful, any employment which the employee found by those means would fall far short economically of the economic situation which he was enjoying on the date of injury.

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) (Athe 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 Kestly=s opinion was based on any false premises.

Whether direct job search was reasonable under the facts of this case was a question of fact for the compensation judge.  His conclusion that the employee is unlikely to find suitable gainful employment through job search efforts is wholly supported by the evidence.  Therefore the judge=s findings as to the first Poole factor are affirmed.

(b)  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 an accountant.  They argue that the employee=s tested academic aptitude, particularly in the area of mathematics, does not bode well for success in such a program.  Mr. Berdahl testified that the accounting program requires comprehension of very sophisticated mathematical fundamentals and principles, that he did not believe, given the employee=s aptitude testing, that accounting was a viable opinion for the employee.  Moreover, the employer and insurer note, even QRC Kestly acknowledged that accounting may be a stretch for the employee and that the employee=s test scores reflected a relatively low interest in accounting and were not considered indicative of a high aptitude for math.  They argue also that the compensation judge erroneously focused on the employee=s motivation to complete the program, rather than his ability to complete it.  We are not persuaded.

We acknowledge, as did the compensation judge, that the employee=s aptitude in mathematics is certainly not high.  But, as noted by QRC Kestly, while aptitude testing indicated that the employee had only average aptitude for accounting, his learning ability according to the aptitude battery was above average.  In addition, while it is clear that he was impressed by the employee=s motivation to succeed, the judge was also persuaded by the employee=s actual success.  The judge explained in his memorandum that,

[a]lthough the employee is acknowledged to have a high sense of work ethic and although the evidence clearly shows the employee is motivated, that of and by itself cannot predict success.  What can predict success, however, is Asuccess.@  The proof is in the pudding.  As the evidence reflects the employee entered into a five week intensive program in the Summer of 2003.  During the five week period the employee successfully completed an entire semester=s worth of classes in both college writing and algebra.  Further predicting the employee=s success is his very fine work during the Fall semester of 2003.  With a grade point average of 3.75 and having been placed on the Dean=s list the employee has proven to the Court that he can succeed in this formal course of study.

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 desire, 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.

(c)  Reasonably Attainable 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 Kestly was unable to locate any jobs within a fifty-mile radius of the employee=s labor market.  Mr. Berdahl agreed that there were not going to be jobs in accounting within the employee=s geographical area.  Therefore, the employer and insurer contend, no competent evidence was submitted at hearing showing that any job would be available for the employee upon graduation.  We are not persuaded.

At Finding 23, the compensation judge found,

With the attainment of a 4 year degree in accounting, in light of the concerns of those in academia that there has been a marked decline in the number of students going into accounting, in all likelihood the employee will be able to obtain employment with the completion of his retraining program.  This is especially true in light of the fact that although the employee would like to remain on the Iron Range and ultimately intends to locate on the Iron Range he is amenable to pursuing employment opportunities outside of the Iron Range.

(Underscoring added.)  QRC Kestly testified that his labor market research revealed over 200 positions statewide.  He further testified that the Occupational Outlook Handbook projected average growth in the accounting field nationwide.  Given the employee=s willingness to relocate upon graduation and QRC Kestly=s testimony, we cannot conclude that it was unreasonable for the judge to have found that the employee satisfied the third Poole criterion.

(d)  Economic Status.  The employer and insurer also argue that substantial evidence does not support the compensation judge=s finding that retraining as an accountant would produce an economic status as close as possible to that which the employee would have enjoyed without his work injury and subsequent disability.  Specifically, they contend, as completion of the retraining program is not likely to result in access to employment and employment is simply not present in northern Minnesota, retraining in this case will not produce the required economic status.  We are not persuaded.

QRC Kestly testified that accountants with a four-year degree are earning anywhere from $27,000 to the $72,000, with an average of $44,300.  The judge concluded at Finding 24 that obtaining a four-year degree in accounting will in fact result in employment for the employee that produces an economic status similar to that which the employee would have been earning but for the work injury of December 22, 1999.  Again, given the employee=s willingness to relocate upon completion of the program, the number of positions available statewide, and the testimony of the employee=s QRC regarding potential earnings, the conclusion of the compensation judge regarding the fourth Poole factor is affirmed.

While the employer and insurer raise legitimate concerns regarding the proposed retraining plan, particularly the cognitive demands of the academic program, it was not unreasonable for the compensation judge to conclude that retraining is reasonably necessary to return the employee to suitable gainful employment and that the proposed plan is reasonably likely to achieve that goal.  Although the costs associated with the retraining plan are substantial, the employee=s loss of earning capacity is also substantial.  And while evidence exists, including the expert testimony of Mr. Berdahl, to support the contentions of the employer and insurer, substantial evidence exists also to support the findings of the compensation judge.  Where the evidence is conflicting or more than one inference may reasonably be drawn from the evidence, a reasonable decision of a compensation judge must be affirmed.  See Hengemuhle, 358 N.W.2d at 59-60, 37 W.C.D. at 239-40.  On that basis we affirm the judge=s award of retraining benefits.

2.  Temporary Partial Disability Benefits

The employer and insurer also contend that the compensation judge erroneously awarded weekly temporary partial disability benefits along with the retraining plan.  They contend that the employee=s earnings at the school library do not represent his true earning capacity and that the judge erred in considering the issue without adequate notice of the claim prior to trial.  We are not persuaded.

First of all, wage loss benefits were clearly part of the employee=s retraining plan, and the employee=s claim for temporary total disability benefits during the period of the certified program should have come as no surprise to the employer and insurer.  At trial, the employee=s counsel advised the court that his client was working two to three hours per week under a work study program and that the judge should take these earnings into consideration in any award of wage loss benefits, should the retraining plan be approved.  Instead of awarding the full amount of temporary total disability benefits, as would normally be done in a retraining circumstance, the judge actually lessened the employer and insurer=s burden by awarding temporary partial disability benefits.  Such an award is contemplated by Minn. Stat. ' 176.102, subd. 11(b).  With regard to the employer and insurer=s argument that the employee=s library earnings do not represent the employee=s true earning capacity, we note that no evidence was offered regarding the availability of other employment during the employee=s attendance at school.  Under the circumstances of this case, we find no merit in the arguments of the employer and insurer.

The Findings and Order of the compensation judge are in all respects affirmed.