Varda v. Northwest Airlines Corp.

TONYA L. VARDA, Employee, v. NORTHWEST AIRLINES CORP., and LIBERTY MUTUAL INS. CO., Employer-Insurer/Appellants.

REHABILITATION - RETRAINING. While substantial evidence supported the judge=s decision that the employee has restrictions and is in need of retraining, the record did not support the conclusion that a 4-year nursing degree from the College of St. Scholastica was reasonably required to restore the employee=s lost earning capacity. The judge=s approval of the 4-year program is therefore reversed and approval of a 2-year program at Hibbing Community College is substituted.

Attorneys: Kathy A. Endres and Susan M. Stepaniak, Aafedt, Forde, Gray, Monson, & Hager, Minneapolis, MN, for the Appellants. Thomas R. Longfellow, Longfellow Law Office, St. Paul, MN, for the Respondent.

The employer and insurer appeal from the compensation judge=s approval of retraining, arguing that substantial evidence does not support the judge=s decision as to the employee=s need for restrictions and that the judge in any event erred in approving a retraining plan calling for the employee to obtain a 4-year nursing degree from the College of St. Scholastica as opposed to a 2-year nursing degree from Hibbing Community College. We affirm the judge=s decision as to restrictions but reverse his approval of the 4-year degree program and substitute approval of the 2-year degree program.

On or about August 1, 2000, the employee sustained an admitted work injury, in the nature of bilateral carpal tunnel syndrome with ulnar nerve involvement, while employed by Northwest Airlines Corporation [the employer]. At the time of her injury, the employee worked primarily as a reservations agent, earning base pay of $12.73 per hour, at the employer=s Chisholm reservation center. However, the employee also worked for the employer periodically in a temporary, supervisory capacity,^[1] earning $19.87 an hour.^[2] The employee=s employment by the employer entitled her to various benefits, including health insurance, flight privileges, retirement benefits, and overtime pay.

The employee underwent right carpal tunnel release surgery in November of 2000 and right ulnar nerve release surgery in December of 2001. Neither procedure was considered successful, and, because the employer would not or could not provide light-duty work, the employee was terminated in March of 2002.

In late July 2002, Dr. Paul Donahue, one of the employee=s treating physicians, concluded that the employee was at maximum medical improvement with respect to her right elbow condition, which warranted a two percent whole body impairment rating. With respect to restrictions, Dr. Donahue wrote as follows:

I would recommend that she remain on permanent work restrictions, not keying or typing over 20 minutes per hour. She should also avoid jobs which involve . . . repetitive elbow flexion or heavy repetitive gripping with either hand. She is using an elbow splint for the right elbow at nighttime, which has been helpful. I would recommend that she obtain an elbow splint for the left for intermittent use at nighttime.

Despite rehabilitation assistance by QRC Scott Campbell, the employee was unable to find suitable employment consistent with these restrictions. Accordingly, in February of 2003, QRC Campbell completed a retraining plan, which called for the employee to attend the College of St. Scholastica, in Duluth, to obtain a Bachelor=s degree in nursing. Under the plan, the employee would commute from her home in Chisolm to Duluth each day, a 164-mile round trip, to attend classes, for four years. Tuition, fees, books, mileage, parking, and daycare were projected to cost $144,388.00.

By the time the retraining plan was formulated, the employee had obtained a part-time job with Mesaba Airlines, earning $8.32 an hour, with no benefits. This job was not expected to become full time.

On March 12, 2003, the employee was seen again by Dr. Donahue, whose office note of that date reads as follows:

She was seen with her QRC today. She would like to begin nursing training, but I did not think she had the strength to start this type of job. Requirements are for ability to lift 25 pounds repetitive, 50 pound intermittently. At this time Tonya notes that she is working at the airport and lifts baggage on a regular basis, this is up to 75 pounds. She has been splinting both elbows intermittently at nighttime and finds this to be the most helpful treatment that she has had so far. Her right elbow did not improve significantly with surgery, however with night splinting both elbows have improved symptoms.

Grip strength was obtained today of 50 pounds in the right hand, 40 pounds in the left hand. She has full elbow flexion and both hands.

I do think she has grip strength that would allow her to perform nursing as a career. Treatment was discussed and I would recommend to continue intermittent nighttime splinting as she has been doing. I wouldn=t consider surgery for her left elbow at this time, especially since she has had a poor result with surgery on the right and has improved with splinting.

She is under no restrictions at this time and I do believe she is capable of lifting 25 pounds frequently and up to 50 pounds occasionally using both hands.

In June of 2003, the employee met with vocational expert Jan Lowe, at the request of the employer and insurer. Ms. Lowe subsequently issued a report and offered deposition testimony concerning the reasonableness of the employee obtaining a 4-year nursing degree at St. Scholastica, as opposed to other vocational alternatives, including a 2-year degree program at nearby Hibbing Community College. Ms. Lowe was of the opinion that the St. Scholastica program was not reasonably required to return the employee to economically suitable employment as a registered nurse.

The matter came on for hearing before a compensation judge on October 23, 2003, for resolution of the employee=s request for approval of the retraining program developed by QRC Campbell. Issues included the nature of the employee=s restrictions, the employee=s need for retraining in general, and whether the specific 4-year St. Scholastica retraining plan developed by QRC Campbell was appropriate. Evidence included the employee=s medical and vocational records, the report and deposition testimony of Ms. Lowe, and the report and hearing testimony of Kandise Garrison, the employee=s independent vocational expert.

In a decision issued on January 9, 2004, the compensation judge concluded, in part, that the employee was subject to the upper extremity restrictions specified by Dr. Donahue in July of 2002, that the employee was in need of retraining, and that the proposed retraining program for a 4-year degree from the College of St. Scholastica was the most appropriate way for the employee to restore her lost earning capacity. The employer and insurer appeal.

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).

The compensation judge=s finding as to the restrictions necessitated by the employee=s work injury reads as follows:

As a direct result of the bilateral upper extremity overuse syndromes the employee has permanent restrictions to her physical activities which include no more than 20 minutes of typing/keyboarding each hour, no repetitive use of her hands and wrists and no repetitive extension of her arms. In addition the employee must limit her frequent lifting to 20 - 25 lbs. with occasional lifting up to 50 lbs.

The employer and insurer appeal, arguing that the judge erred in adopting Dr. Donahue=s July 2002 restrictions on hand use and lifting when the doctor later indicated, in March of 2003, that the employee was Aunder no restrictions at this time@ and was capable of lifting A25 pounds frequently and up to 50 pounds occasionally using both hands.@ Accordingly, the employer and insurer contend, the employee is not entitled to retraining because she is no longer subject to any restrictions as a result of her work injury.

We acknowledge that Dr. Donahue=s March 2003 treatment notes could perhaps be interpreted in the manner suggested by the employer and insurer. However, it is at least as reasonable to view Dr. Donahue=s March 2003 opinion on restrictions as having been intended to address only concerns about the lifting necessitated by a nursing career. That is, there is nothing in the March 2003 office note that expressly addresses Dr. Donahue=s July 2002 restrictions as to keyboarding and repetitive hand use, which the doctor specifically indicated at that time were permanent. Therefore, because it was not unreasonable for the compensation judge to conclude that the employee was still subject to the upper extremity restrictions specified in Dr. Donahue=s July 2002 treatment note, we affirm the judge=s decision on this issue.

Ms. Garrison, the employee=s vocational expert, testified that the employee needs retraining to restore her lost earning capacity and that the 4-year nursing program at the College of St. Scholastica is an appropriate retraining program under all the circumstances present here. Ms. Lowe, the employer and insurer=s vocational expert, agreed that, if Dr. Donahue=s July 2002 upper extremity restrictions are applicable, the employee is in need of retraining. She testified, however, that the 4-year program at St. Scholastica is not necessary to restore the employee=s earning capacity and that the 2-year registered nursing degree program at Hibbing Community College would be more appropriate given the employee=s academic background and given the relative costs of the two programs. Because both experts agree that retraining as an RN is appropriate, the only issue remaining on appeal is whether the compensation judge erred in approving the 4-year St. Scholastica program over the 2-year Hibbing Community College program.^[3] After careful review of the entire record, we conclude that insufficient evidence exists to support the conclusion that retraining at St. Scholastica, as opposed to Hibbing Community College, is reasonably required to restore the employee=s lost earning capacity.

The record reflects that both St. Scholastica and Hibbing Community College have 100% placement records for their registered nursing graduates and that registered nurses in Minnesota earn a median wage of $18.97 to $21.45 per hour, at a minimum.^[4] The labor market survey conducted by QRC Campbell in connection with the retraining plan did not differentiate between 2-year and 4-year RNs, and the information provided by Ms. Lowe indicates that there is little if any difference in the hourly wage paid to 2-year graduates as opposed to 4-year graduates. In fact, Ms. Garrison essentially agreed that the employee=s salary in a clinical setting would be about the same with either degree, and, while there has been no weekly wage decision in this case, the evidence strongly suggests that the employee will earn at least as much, and almost certainly more, with a 2-year RN degree, than she was earning in her job with the employer on the date of the injury.

It is true, as the employee notes, that the employee has expressed an interest in working as a public health nurse or a school nurse, and both jobs typically require a 4-year nursing degree. However, Ms. Lowe testified that public health nurse and school nurse jobs in the vicinity of the employee=s home in Chisolm are very few and that the jobs are subject to little turnover. The labor market survey conducted by Ms. Lowe also indicates that some of the school nurse jobs that do exist require a teaching certificate in addition to a Bachelor=s degree. Because neither Ms. Garrison or Mr. Campbell performed a labor market survey specifically for school nurse or public health nurse positions, there is no evidence to compete with Ms. Lowe=s testimony on this subject, and there is therefore simply no evidence whatsoever to support the conclusion that the employee could reasonably expect to obtain either a school nurse or public health nurse job, in her current labor market, even with a 4-year degree. Moreover, while the employee testified that she would consider relocating to obtain one of these positions, no evidence was presented indicating that the employee could reasonably expect a public health or school nurse job offer in any other labor market, either. As such, given the absence of any evidence establishing likely job availability, the employee=s expressed preference for public health and school nursing has little bearing on the propriety of retraining in a 4-year degree program.

The next factor - one which weighs heavily in this particular case - concerns cost. According to the retraining plan, the expected itemized cost of the 4-year St. Scholastica program is as follows:

The mileage and parking costs for St. Scholastica are high because of the employee=s need to commute from her home in Chisolm to Duluth, 164 miles round trip. Hibbing, on the other hand, is only 7 or 8 miles from the employee=s home. Moreover, according to Ms. Lowe, total tuition costs per year for Hibbing Community College are $3,600.00 for tuition, $750.00 for books and supplies, and $400.00 for miscellaneous items, for a total yearly cost of $4,750 and a total 2-year program cost of about $9,500.00. Even assuming that the employee might need 22 years to complete the program, which is a possibility, the cost savings of attendance at Hibbing, in tuition and mileage alone, are clearly substantial. Furthermore, the employee=s enrollment in the St. Scholastica program would obligate the employer and insurer to pay wage loss benefits for 4 school years, whereas the Hibbing program would require payment of wage loss benefits for only 2 to 22 years. All told, the St. Scholastica program would cost well over $100,000 more, for the employee to earn a 4-year nursing degree, than the Hibbing program would cost for the employee to earn a 2-year degree. And, as Ms. Lowe testified, there is no evidence as to any significant economic benefit to the employee upon completion of a 4-year degree as opposed to a 2-year degree.

We acknowledge that there is some evidence indicating that the employee may have to delay the start of her retraining longer if she attends Hibbing Community College as opposed to St. Scholastica. As of the October 2003 hearing, the incoming 2004 class at Hibbing was full and the 2005 class was in the process of filling. However, the employee had not as yet applied for or been accepted at St. Scholastica, either, and, while Ms. Garrison thought that the employee would probably gain admission into the St. Scholastica program, she acknowledged that she was not aware of St. Scholastica=s specific entrance requirements. In any event, the evidence at hearing indicated that the employee would likely be able to enter the labor market as an RN with a 2-year degree from Hibbing either at the same time or before she would be able to enter the labor market with a 4-year degree from St. Scholastica, even assuming a delay in starting the Hibbing program.

When an employer and insurer propose an alternative to a retraining plan sought by the employee, the compensation judge must do a comparative analysis of the plans. Kunsferman v. Ford Motor Co., 55 W.C.D. 464, 467-68 (W.C.C.A. 1996).

Inherent in this comparison would be a review of how long the various programs would take, how soon the employee would be returned to an economic status as close as possible to that which they would have enjoyed without the disability, and a comparison of the total costs associated with providing the retraining.

Certainly a 4-year degree may be Abetter,@ in terms of the number of employment opportunities, than the proposed 2-year alternative. Some nursing jobs do in fact require a Bachelor=s degree, and some other nursing jobs may be inconsistent with the employee=s lifting restrictions. However, in this case, the record simply fails to establish that the employee would gain any significant economic advantage by attending the 4-year program sufficient to outweigh the immense additional cost. This is especially true given that it is essentially uncontroverted that the employee will easily be able to obtain physically suitable work, as a RN with a 2-year degree, at a wage comparable to a 4-year RN and at a wage that equals or exceeds her pre-injury wage, and given that there is no evidence that the employee can reasonably expect to obtain work in one of her areas of special interest.

Because the record as a whole does not support the conclusion that the much more expensive St. Scholastica nursing program is reasonably required to restore the employee=s lost earning capacity, we reverse the judge=s approval of the employee=s proposed retraining plan and substitute approval of the alternative 2-year Hibbing Community College RN program.^[5]

^[1] The employee worked as a substitute supervisor for a total of about three months out of the year.

^[2] At hearing, the employee=s counsel made it clear that he did not want the compensation judge to make any finding as to the employee=s exact weekly wage, in that he had not received all pertinent wage information from the employer.

^[3] The employer and insurer did not have Ms. Lowe actually complete a formal retraining plan covering the Hibbing degree program, but they took the position at hearing that the information collected by Ms. Lowe and presented at hearing was sufficient to allow the judge to consider approval of retraining at Hibbing as opposed to St. Scholastica. We agree that adequate information was submitted to allow the judge to approve the Hibbing program.

^[4] These figures were gathered by Ms. Lowe. Ms. Garrison thought that the median wage was actually higher.

^[5] If circumstances have changed since the hearing date, either party may of course propose that the retraining plan be amended.