Wessel v. 3M Co.

BARBARA J. WESSEL, Employee/Appellant, v. 3M CO., and HELMSMAN MANAGEMENT SERVS., Employer-Insurer/Cross-Appellants.

REHABILITATION - RETRAINING. Substantial evidence, including expert vocational testimony, supported the compensation judge=s decision that the proposed retraining plan was not appropriate to address the employee=s lost earning capacity.

MAXIMUM MEDICAL IMPROVEMENT - SERVICE OF MMI REPORT. Where the employee=s 1978 injury contributed to the employee=s disability for the period at issue following the employee=s 2002 work injury, service of notice of MMI covering the 1978 injury was necessary to trigger the commencement of the 90-day post-MMI period for discontinuance purposes.

Attorneys: John J. Horvei, Attorney at Law, New Brighton, MN, for the Appellant. Timothy J. Manahan, Brown & Carlson, Minneapolis, MN, for the Cross-Appellants.

The employee appeals from the compensation judge=s denial of her request for approval of retraining as a sign language interpreter and from the judge=s decision that she reached maximum medical improvement from her work injuries effective June 25, 2003. The employer and insurer cross-appeal from the judge=s finding that the employee is a candidate for retraining. We affirm the judge=s findings as to retraining but reverse on the issue of maximum medical improvement.

The employee was born in 1947 and graduated from high school in 1965. She then worked as a beautician for several years before beginning employment with 3M Company [the employer] in 1968, performing various factory and warehouse jobs for more than 30 years. During the course of her career with the employer, she sustained a number of work-related injuries:

As a result of these injuries, the employee received various workers= compensation benefits, including benefits for a 15% permanent partial disability of the right arm; an 11% permanent partial disability of the right index finger; a 2% whole body impairment relative to her left knee; and a 2% whole body impairment relative to her right knee. On the date of her last injury, the employee was earning $934.89 per week in her job with the employer.

Records from Dr. Joseph Flake, the employee=s treating physician, indicate that the employee is subject to a 20 pound lift/carry limit and should avoid repetitive climbing and stooping as well as prolonged standing and walking.^[1] In the summer of 2002, the department in which the employee had been working was shut down, and the employer was apparently unable to offer the employee alternate work within her restrictions. As a result, the employee ultimately elected to accept a retirement package from the employer, which included severance pay, retiree medical benefits, and a pension. At about the same time, in June of 2002, the employee began receiving rehabilitation assistance from QRC Patricia Herbulock, who subsequently engaged Deborah Kersten, a placement specialist, to assist in job search efforts.

According to rehabilitation records, efforts were initially directed toward exploring a possible return to work with the employer. By August of 2002, after it had become apparent that there was no work there, job search efforts focused on finding the employee employment in areas such as social work and human services, child support, women=s outreach, paraprofessional education positions, and other areas consistent with the employee=s interests, restrictions, and vocational test results. To enhance the odds of employment in one of these fields, the employee followed the QRC=s suggestion to engage in some volunteer work at a women=s shelter and in a hospital hospice program. Because the employee had expressed dislike for office work, jobs in that category were not pursued or explored.

By October of 2002, the employee had become interested in retraining. Some programs in social services were eliminated as retraining possibilities after investigation disclosed that likely job opportunities would pay unacceptably low wages - in the $10 to $12 per hour range - in comparison with the employee=s salary at the employer. Training for employment as a probation officer was considered but rejected as beyond the employee=s restrictions; landscape design was also rejected, again due to wage concerns. Job search efforts continued, with a somewhat expanded job search area, but the employee received virtually no interviews, and QRC Herbulock became convinced that, given the employee=s restrictions and high date-of-injury wage, a 2- or 4-year retraining program would be necessary to restore the employee=s earning capacity. In April of 2003, after considering and rejecting retraining as a paralegal or a manicurist, the employee requested further investigation into the area of American Sign Language (ASL) interpreter training.

In July of 2003, the employee and QRC Herbulock signed a retraining plan calling for the employee to complete a sign language interpreter/translator AAS degree at St. Paul College. Total retraining costs were projected to be about $15,700, exclusive of wage replacement benefits. It was anticipated that the program would take at least two and one-half years for the employee to complete, including completion of the four sign language courses necessary prior to the employee=s admittance into the interpreter/translator program.

According to the supporting labor market survey, the vast majority of ASL interpreter jobs are found in educational settings, and school districts pay their translators from about $12.00 to about $22.00 an hour, depending on the district and depending on experience. Ninety-nine to one hundred percent of St. Paul College graduates from 2001 and 2002 obtained either part-time or full-time employment, with a starting salary range of $15.00 to $18.50 per hour.

The employer and insurer objected to the proposed retraining plan, and the matter came on for hearing before a compensation judge on February 13, 2004. In addition to the retraining dispute, issues included the legally effective date on which the employee had reached maximum medical improvement [MMI] following her last work injury. Evidence included recent medical records, the employee=s rehabilitation records, and the testimony of the employee, QRC Herbulock, and David Berdahl, the employer and insurer=s vocational expert.

In a decision issued on March 1, 2004, the compensation judge concluded that the employee was a candidate for retraining but that the proposed retraining plan was not reasonably necessary to restore the employee=s lost earning capacity. The judge also concluded that the employee had reached MMI effective June 25, 2003. Both parties 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 employee appeals from the compensation judge=s decision denying her request for approval of the sign language interpreter retraining program at St. Paul College. In her argument on this issue, the employee contends in part that the compensation judge erroneously based her decision on concerns about the employee=s job search efforts, when job search was not a defense raised by the employer or otherwise at issue at hearing. The employee also contends that, when considered in light of factors specified in Poole v. Farmstead Foods, 42 W.C.D. 970 (W.C.C.A. 1989), the proposed retraining plan is reasonable and suitable within the meaning and contemplation of Minn. Stat. ' 176.102 and related rules. We are not persuaded that the judge erred in denying approval of the proposed plan.

(b) Rehabilitation is intended to restore the injured employee so the employee may return to a job related to the employee=s former employment or to a job in another work area which produces an economic status as close as possible to that the employee would have enjoyed without disability. Rehabilitation to a job with a higher economic status than would have occurred without disability is permitted if it can be demonstrated that this rehabilitation is necessary to increase the likelihood of reemployment. Economic status is to be measured not only by opportunity for immediate income but also by opportunity for future income.

AThe purpose of retraining is to return the employee to suitable gainful employment through a formal course of study.@ Minn. R. 5220.0750, subp. 1. ASuitable gainful employment@ is employment that is reasonably attainable and Aoffers an opportunity to restore the injured employee as soon as possible and as nearly as possible to employment which produces an economic status as close as possible to that which the employee would have enjoyed without disability.@ Minn. R. 5220.0100, subp. 34. An employee=s Aage, education, previous work history, interests, and skills@ are relevant in determining whether employment qualifies as suitable gainful employment. Id. When retraining is proposed, relevant considerations 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.

In the present case, as the employee correctly points out, the compensation judge made a number of findings criticizing both the employee=s job search and the focus of rehabilitation assistance, finding, for example, as follows:

14. At the June 11, 2002 rehabilitation consultation, the employee told QRC Herbulock that she was Anot interested in pursuing office-related occupations.@ Between June 11, 2002 and the February 13, 2004 hearing, the QRC neither encouraged nor required the employee to check into Aoffice jobs@ based solely on the employee=s preference for a non-office place to work. Vocational testing showed that the employee has reading and math skills sufficient for entry level college work and therefore sufficient for many kinds of office jobs. While an employee need not look first for the worst jobs in the least-favored settings, as time goes on without obtaining a job, an employee must broaden the work search to include less desired jobs. It was not reasonable to rule out all office jobs as appropriate reemployment for this employee for the entire time span June 2002 through February 2004.

15. As set out in the [QRC=s] November 6, 2002 report, by that point the employee was in full time job search and looking for jobs identified on the Job Placement Plan and Agreement as follows: ASocial work and human services positions; child support officer; fraud and special investigator; women=s research facilitator; education positions (i.e., paraprofessional); and other positions consistent with the employee=s restrictions and interests and testing.@ The occupations identified on the initial JPPA may have been consistent with the employee=s restrictions and interests, but as was shown when the employee checked with possible employers, those jobs required two- or four-year college degrees or years of experience she did not have. The initial job goals were inappropriate given the employee=s high school education and decades of factory work. Although in November 2002, the employee may not have realized that she did not have the academic and work background to qualify for any of her chosen occupations, her QRC and placement vendor should have realized this. The employee then checked into what would be involved in obtaining the credentials necessary to be a candidate for her chosen occupations. When she learned after a visit at Century College that the one or two year diploma programs would qualify her only for a $10 to $12 per hour job to start, she decided not to pursue skills enhancement at that point. By October 9, 2002, the employee had located a job opening at Anderson Corporation in assembly but, when she found out it was a temporary job that would have paid $11 per hour, she did not apply for it.

19. The employee=s job logs document that she looked almost exclusively for jobs that required academic credentials she did not have, experience she did not have, or were beyond her physical restrictions. To look at want ads without making follow up telephone calls and filling out job applications is not to make a diligent search for work.

20. To the extent that one of the factors in recommending retraining was that the employee conducted a diligent work search and exhausted direct reemployment possibilities, the employee=s testimony about her work search and her job logs do not support the conclusion that she has exhausted possibilities for direct reemployment. She cooperated with her QRC and placement vendor, but she was encouraged to look for work in fields that required more education than she had, that required experience she did not have, or were beyond her physically. It was not reasonable for the QRC and placement vendor to encourage the employee to apply for jobs in social work that require a college degree or for truck driving/delivery and over-the-road trucking jobs that were beyond her physical restrictions.

It is also true, as the employee alleges, that the employee=s job search efforts were not raised by the defense, at the beginning of the hearing, as a basis for rejecting the proposed retraining plan. However, as the compensation judge noted, QRC Herbulock was recommending retraining at least in part because the employee had purportedly exhausted direct employment possibilities without obtaining suitable work.^[2] Because this was at least one basis for proposing retraining, job search was in fact relevant. Moreover, as the employer and insurer point out, the Poole factors, which are generally applicable in evaluating retraining plans, also suggest that job search is a relevant question, because retraining must be weighed against the possibility of securing suitable employment through direct placement. For all these reasons, the judge did not err in considering the employee=s job search, and the direction of rehabilitation efforts, when considering the propriety retraining request at issue here. In addition, job search issues aside, the judge=s denial of this particular retraining plan is supported by substantial evidence in the record as a whole.

As previously indicated, the overwhelming majority of sign language interpreter jobs are found in the school system. According to the labor market surveys, these jobs typically pay from $12.00 to $15.00 per hour to start. However, school sign language interpreters typically only work during the school year, meaning, as the compensation judge noted, that a $12.00-an-hour wage in this job annualizes to a $9.00-an-hour-wage. And, while school ASL interpreter wages top out at more than $20.00 an hour, that wage is attained only after years of experience, and the employee would have been over 60 years old by the time she completed the proposed retraining program, making it somewhat less likely that she would progress to the top of the wage scale. It may be true that freelance interpreters can earn as much as $40.00 to $50.00 an hour; however no evidence was submitted as to how much call there is for freelance work or how much freelance interpreters generally earn on an annual basis. In fact, according to Mr. Berdahl, freelance ASL translators never work full time. Mr. Berdahl also testified that the employee would qualify for certain jobs in the labor market that would pay in the range of $15.00 an hour after three years. Specifically, Mr. Berdahl testified that the employee is an excellent communicator and would be great in customer service work, perhaps after brushing up on her keyboarding skills. He also testified that customer service work is one of the largest occupational groups in the Twin Cities labor market. We acknowledge that the employee has indicated that she dislikes Aoffice work.@ However, QRC Herbulock explained that she took this to mean primarily secretarial work. Moreover, an employee=s subjective dissatisfaction with a job, standing alone, is not necessarily determinative of the suitability of that job. Fisher v. Northface Exteriors, 45 W.C.D. 500 (W.C.C.A. 1991); Jones v. Hy-Vee Food Stores, slip op. (W.C.C.A. July 22, 1996). Also, contrary to the employee=s contention, the compensation judge was not required to find Mr. Berdahl=s testimony on available jobs to be impermissibly speculative.

The employee was earning more than $23.00 an hour on the date of her last work injury. The proposed retraining plan would remove her from the labor market for nearly three years,

to qualify her to obtain work, at age 60 or 61, paying $9.00 to $12.00 an hour, on an annualized basis. According to Mr. Berdahl, there is comparable-paying work, within the employee=s restrictions, that the employee could obtain with minor skill enhancements, such as keyboarding classes or blueprint reading classes. The employee has not looked for this kind of work, and the record indicates in fact that jobs paying similar to ASL translator jobs were at times excluded from consideration, during the rehabilitation process, as too low-paying. Under these circumstances, the compensation judge did not err in rejecting the employee=s request for approval of the proposed ASL interpreter retraining plan, and we affirm.

2. Candidate for Retraining

In one of her findings on the retraining issue, the compensation judge wrote as follows:

21. In order to be a candidate for retraining, it [is] not necessary that an employee first exhaust a diligent job search without finding work where it is apparent that a job search is likely to be futile. . . . Given the employee=s date-of-injury wage of $984 per week, her high school education, and her decades of factory work, as well as QRC Herbulock=s opinion, the employee is a candidate for retraining to obtain additional skills.

On cross-appeal, the employer and insurer contend that, given the compensation judge=s denial of the employee=s request for approval of the ASL interpreter retraining plan, the finding that the employee is a Acandidate for retraining@ is Amoot@ and should be stricken.

We acknowledge that the propriety of retraining is often difficult to evaluate in a vacuum, that is, in the absence of a specific retraining plan. However, the Minnesota Supreme Court has suggested that it is sometimes appropriate to determine the necessity of retraining, even when a particular proposed plan has been disapproved. Krauss v. ITT Continental Baking Co., 436 N.W.2d. 769, 41 W.C.D. 705 (Minn. 1989). In the case now before us, both vocational experts have indicated that the employee has virtually no chance of earning anywhere near her pre-injury wage without retraining,^[3] meaning that further investigation into retraining may well be warranted.^[4] This is what we take the compensation judge=s finding to mean. As in any other case, any proposed plan will be subject to evaluation on its merits. We see no reason to vacate or otherwise modify the judge=s decision on this issue.

3. Maximum Medical Improvement

The other dispute in this matter concerned the legally effective date of MMI. The employee agreed that she had reached MMI from all of her injuries effective with service of an MMI report on February 9, 2004. The employer and insurer contended that service of an MMI report covering all injuries was not required here and that the employee had in fact reached MMI effective with an MMI report from Dr. Flake on June 25, 2003, meaning that temporary total disability benefits were properly discontinued 90 days after that date. The compensation judge adopted the employer and insurer=s position on this issue, finding MMI effective with service of Dr. Flake=s report on June 25, 2003. The judge based her decision on this point on her conclusion that an employer and insurer need not serve notice of MMI for injuries occurring prior to 1984, for injuries for which the employee lost no time from work, or for injuries from which the employee had completely healed. We reverse.

Pursuant to Joyce v. Lewis Bolt & Nut Co., 412 N.W.2d. 304, 40 W.C.D. 209 (Minn. 1987), an employee=s eligibility for wage loss benefits is generally governed by the law in effect on the date of the employee=s most recent compensable injury. Moreover, in Hammer v. Mark Hagen Plumbing & Heating, 435 N.W.2d. 525, 41 W.C.D. 634 (Minn. 1989), the supreme court indicated that discontinuance of temporary total disability benefits is generally not appropriate until an employee has reached MMI from both Aold law@ (pre-1984) and Anew law@ injuries. As MMI is not legally effective until notice of MMI has been served, MMI was not legally effective in the present case until February 9, 2004, the date on which the employee was served with notice of MMI covering all injuries that contributed to her disability.^[5] See Heimermann v. Old Dutch Foods, 55 W.C.D. 603 (W.C.C.A. 1996); Olson v. Hollenback & Nelson, Inc., slip op. (W.C.C.A. May 26, 1994) (service of an MMI report covering the employee=s pre-1984 injuries was necessary to trigger the commencement of the 90-day post-MMI period for discontinuance purposes). The employee is therefore entitled to additional temporary total disability benefits accordingly, subject, however, to the 104-week limit specified in Minn. Stat. ' 176.101, subd. 1(k).^[6]

^[1] These restrictions were made permanent in January of 2003 but had been in place for some time before.

^[2] Just prior to hearing, the employee was offered part-time work as a bus driver, pending completion of a security check. There is no contention that this job qualifies as suitable work.

^[3] And Mr. Berdahl indicated that the employee would not be able to earn that wage even with retraining.

^[4] The compensation judge in fact suggested that retraining should have been considered much sooner than it was.

^[5] It is undisputed that the employee is subject to restrictions due to her 1978 shoulder injury.

^[6] We note that, in the present case, all of the employee=s injuries arose out of and in the course of her employment with the same employer, and the employer was clearly aware of all of the injuries. We intend to express no opinion here on MMI service requirements under other factual scenarios.