PAUL CUNNINGHAM, Employee, v. MINNESOTA MOTOR CO., and GENERAL CAS. COS., Employer-Insurer/Appellants, and MINNESOTA MOTOR CO., and BERKLEY RISK ADM=RS CO., Employer-Insurer.

 

WORKERS= COMPENSATION COURT OF APPEALS

AUGUST 1, 2005

 

No. WC05-122

 

HEADNOTES

 

REHABILITATION - RETRAINING.  Where the judge=s decision was based on the expert opinion of a qualified rehabilitation consultant, that, in keeping with the factors articulated in Poole v. Farmstead Foods, 42 W.C.D. 970, 978 (W.C.C.A. 1989), the employee (1) reasonably needed retraining rather than further job search, (2) was likely to succeed at the proposed retraining, (3) was likely to obtain related employment following the proposed retraining, and (4) was likely to recoup lost earning capacity consequent to that employment, the compensation judge=s award of retraining was not clearly erroneous and unsupported by substantial evidence.

 

Affirmed.

 

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

Compensation Judge: Harold W. Schultz, II     

 

Attorneys: DeAnna McCashin, Schoep & McCashin, Alexandria, MN, for the Respondent.  Krista L. Twesme, Aafedt, Forde, Gray, Monson & Hager, Minneapolis, MN, for the Appellants.

 

 

OPINION

 

WILLIAM R. PEDERSON, Judge

 

The employer and insurer General Casualty Insurance Company appeal from the compensation judge's award of retraining.  We affirm.

 

BACKGROUND

 

Paul Cunningham graduated from high school in 1975, and immediately thereafter he attended vocational/technical college, where he eventually completed a two-year course in painting and auto finishing.  Mr. Cunningham was thereafter self-employed in his own body shop for about four years, until 1982, when he left self-employment to take a job with Minnesota Motors in Fergus Falls, Minnesota.  Eventually Mr. Cunningham became head painter at Minnesota Motors, a position involving extensive use of a spray gun.  On July 28, 1999, about seventeen years after first taking the job with Minnesota Motors, Mr. Cunningham sustained an injury to his right, dominant-side shoulder in the course of his employment.  On the date of his injury, Mr. Cunningham [the employee] was forty-two years old and was earning a weekly wage of $665.00, and Minnesota Motors [the employer] had workers= compensation insurance coverage administered by Berkley Risk Administrators [Berkley].  Subsequent to the employee=s injury, the employer and Berkley paid workers= compensation benefits to the employee, who returned to his job with the employer.  About two and a half years later, on December 31, 2001, the employee sustained a second injury to the same, right, shoulder, also in the course of his work for the employer.  On the date of this second injury, the employee was forty-four years old and was earning a weekly wage of $936.00, and the employer was insured against workers= compensation liability by General Casualty Insurance Company [General Casualty], which also paid benefits.

 

Conservative treatment in early 2002 proved unsuccessful, and on February 4, 2002, the employee was examined by orthopedist Dr. Philip Johnson, who recommended surgical repair.  On March 26, 2002, Dr. Johnson performed on the employee=s shoulder an arthroscopic subacromial decompression with debridement of the supraspinatous tendon, to treat and repair what was diagnosed as a torn right rotator cuff with impingement syndrome.  The employee never thereafter returned to his job as head painter for the employer.  On June 4, 2002, the employee underwent a rehabilitation consultation with QRC Ione Tollefson, who concluded that the employee was a qualified employee for purposes of rehabilitation assistance, and she commenced services, although neither insurance carrier had apparently agreed to provide them.  The employee evidently worked for the employer for the last time for about three days in the summer of 2002, when he made three trips to the Twin Cities to deliver vehicles.

 

In July of 2002, at the recommendation of Dr. Johnson, the employee underwent a functional capacities evaluation, pursuant to which, on August 13, 2002, Dr. Johnson issued permanent restrictions against his doing any work above shoulder level and against his lifting more than forty pounds.  On August 29, 2002, Dr. Johnson further recommended that the employee Astay away from repetitive upper extremity work, most notably circular motions, and repetitive to and fro and back and forth motions.@  QRC Tollefson evidently spoke on that same date with Mr. Tom Brimhall at the employer, inquiring into the possibility of the employee=s returning to work for the employer within the restrictions set by Dr. Johnson, specifically as an estimator.  She was evidently informed by Mr. Brimhall that estimating work was being handled by the manager and that no positions within the employee=s restrictions were currently open with the employer.  Ms. Tollefson evidently requested that Mr. Brimhall contact her if that circumstance should change, and Mr. Brimhall apparently agreed to do so.  Ms. Tollefson also spoke with representative Matt Fasse at General Casualty on that same date, who indicated that it was his understanding that the employer still intended to offer the employee a position, and he also promised to follow up on the possibility and to call Ms. Tollefson back.  Neither Mr. Brimhall nor Mr. Fasse apparently ever did so.

 

On October 18, 2002, the employee underwent vocational testing with psychologist Dr. Robert Riedel.  In his report the following day, Dr. Riedel concluded in part that there was no reason to suppose that the employee would not succeed at a vocationally oriented training program, noting that A[t]here are also indications that a more academically oriented program would be within the realm of possibilities.@  Dr. Riedel went on to conclude that A[t]here is no reason that [the employee] would not be able to get into some of the rapidly growing fields in the computer area such as programming and network development and maintenance,@ noting that the employee Adoes have fair math skills and seem[s] to have some facility in this area.@  Berkley and General Casualty evidently authorized QRC Tollefson to continue providing rehabilitation services to the employee, and on about October 29, 2002, the employee began job search activities with placement specialist Donna Tomczak.  Initial contacts were focused in such areas as paint sales representative and body shop estimator/manager, which would utilize the employee=s existing skills and past experience.  As those efforts proved unsuccessful, the search eventually broadened into areas of print shop work, nursing home work, power company work, and land surveying.  The employee eventually received at least one offer of employment, for a job at an auto parts store paying an hourly wage ranging from $7.00 to $8.00, but he did not accept the position because of the low wage and the fact that the job was located fifty-five miles from his home.

 

On November 25, 2002, pursuant to a stipulation for settlement, Berkley and General Casualty agreed in part to apportion liability for all future benefits paid to the employee, General Casualty agreeing to be the paying agent, with a right to 50% reimbursement from Berkley for Aall payments made pursuant to this Stipulation,@ applying the Kaisershot apportionment formula^[1] to indemnity payments only.  An award on this stipulation was issued November 27, 2002.

 

On December 5, 2002, QRC Tollefson recommended that the employee take an introductory computer course at a local community college, in an attempt to be more broadly competitive in the job market.  General Casualty initially objected, but on April 7, 2003, it agreed to pay for such a course.  In the summer of 2003, at the request of QRC Tollefson, CRC Brent Larson conducted a labor market survey of eighteen potential employers for the purpose of assessing entry level job opportunities for individuals with two-year degrees in computer and voice networking, a field in which the employee had apparently expressed interest.  In his report on July 23, 2003, Mr. Larson indicated that hourly wages in the field ranged from $12.00 to $12.50, that none of the eighteen potential employers had current openings, and that none anticipated future hiring.  Ms. Tollefson=s records indicate that Mr. Larson suggested to her that Athere are generally always openings in the medical fields@ and that a recent survey of his revealed some openings also in the civil engineering field, although credentials in this field would require a four-year degree.  Ms. Tollefson evidently informed the employee that, based on Mr. Larson=s survey, she could not recommend retraining in computer and voice networking.  The employee did eventually inquire into several medically related lines of work, including x-ray technology, lab technology, surgical technology, physical therapy, occupational therapy, and, most notably, nursing, but he discovered that virtually all of the jobs in this latter field required the ability to lift up to fifty pounds, which was outside of his restrictions.  Eventually, in August of 2003, the employee did enroll in the introductory computer course that had been approved by General Casualty, which he completed in December of 2003, having earned a grade of B.  On January 21, 2004, QRC Tollefson wrote to claims representative Avery York at General Casualty, reiterating several previous reports that A[the employee] has continued to participate in a very diligent job search but he has been unable to find suitable employment.@

 

Early in 2004, placement specialist Tomczak conducted a labor market survey to assess the employment prospects for a person with a two year degree in civil engineering and surveying technology from North Dakota State College of Science [NDSCS] in Wahpeton, North Dakota, a course of study that the employee had visited in person and had expressed an interest in pursuing.  In her report on February 24, 2004, after surveying eleven potential employers in the areas of Alexandria, Detroit Lakes, Fergus Falls, and Moorhead, Minnesota, and Fargo, West Fargo, and Wahpeton, North Dakota, Ms. Tomczak indicated in part as follows: (1) that entry level hourly wages ranged from $9.00 to $16.31; (2) that hourly wages after five years at six of the eleven employers ranged from $15.00 to about $21.63;^[2] (3) that one employer reported that civil engineering technicians who are willing to work very hard can earn as much as $75,000.00 a year; (4) that one of the eleven employers had two possible current openings while six had hired within the past year; (5) that five of the eleven employers said that they would be hiring within three years, while another two said that it was possible that they would be; (6) that two of the eleven employers said that they would be expanding or adding additional staff; and (7) that at least ten of the eleven employers surveyed indicated that duties in the subject positions in their organizations would be within the employee=s physical restrictions.  In that same report, Ms. Tomczak indicated that NDSCS=s placement report for 2002-2003 indicates that eleven of twelve graduates of the program that year obtained related employment while one was pursuing additional college, their monthly salaries ranging from $1,703.00 to $3,033.00.  On March 2, 2004, QRC Tollefson discussed the results of the survey with the employee, noting in her records that A[t]his appears to be a very positive L[abor ]M[arket ]S[urvey].@

 

In the spring of 2004, the employee found and accepted a full-time but seasonal job doing general maintenance and grounds keeping at a local golf course at an hourly wage of $7.50.  On March 8 of that year, QRC Tollefson filed a rehabilitation plan amendment, proposing retraining for the employee in the two-year course in civil engineering and surveying technology at NDSCS that was the basis of Ms. Tomczak=s labor market survey.  The proposed retraining was to commence in June of 2004 and to be complete in June of 2006, at a projected cost of $24,255.00, including tuition, fees, books, tools, and mileage.  In the retraining plan, QRC Tollefson listed the following as elements of her rationale:  (1) the employee is precluded by his work injury from returning to his pre-injury job as a lead painter; (2) Dr. Johnson has recommended that the employee be retrained, due to his work restrictions; (3) the employee has limited transferable skills; (4) the employee has conducted a very diligent job search for about seventeen months but has been unable to find suitable work; (5) the employee has the skills to successfully complete the proposed program of retraining; (6) jobs in the field of the proposed retraining are within the employee=s physical restrictions; (7) it appears from placement specialist Tomczak=s labor market survey that the employee will have an excellent opportunity for employment upon completion of the proposed retraining program; and (8) the employee will have an excellent opportunity as a result of such employment to achieve an economic status similar to his pre-injury economic status.

 

On March 29, 2004, General Casualty filed a rehabilitation request, denying the employee=s retraining request Ain its entirety,@ on grounds that the employee did not require retraining in order to restore his pre-injury earning capacity and that, even if he did, the proposed plan was not appropriate for him.  The matter was addressed at an administrative conference on June 17, 2004, pursuant to which, by a decision and order filed June 27, 2004, the employee was found to have conducted a reasonable and diligent job search and to be entitled to retraining according to the retraining plan at issue.  On July 13, 2004, the employer and General Casualty filed a request for formal hearing.

 

On August 9, 2004, the employee informed QRC Tollefson that he anticipated being laid off from his golf course job in October, and he requested assistance in searching for another job. About two weeks later, however, the employee enrolled in the two-year course in civil engineering and surveying technology at NDSCS that is here at issue, his golf course job officially ended, and his request for job placement services was withdrawn.  There are evidently eight students in the employee=s course of study, to attend which the employee travels about fifty-six miles round trip each week day.  He spends about eight hours in class each day, five days a week, and then studies at home about two to four hours each evening.  Subsequent to his starting classes, the employee evidently returned to work on a few weekends at the golf course , where he was able to avail himself of the machines in the gym to strengthen his continuingly symptomatic right shoulder.  On October 25, 2004, the employee=s wife called QRC Tollefson in part to report that the employee had earned all A=s and B=s in his mid term exams in his course of study at NDSCS.

 

In August 2004, at the request of the employer and General Casualty, QRC Christine Delich had commenced an independent vocational assessment of the employee=s employment options.  In her report on November 16, 2004, QRC Delich summarized the core of her findings in part as follows:

 

[The employee=s] job search appears to have been chaotic and unfocused.  He is asking to be retrained in a very competitive field, that will not restore his pre-injury wage nor is there strong support that employment is likely in his local labor market.  It would be my opinion that one more effort should be made with the former employer to make sure that the situation there has not changed and that they continue to not be able to offer [the employee] a suitable job. [The employee] has significant management skills in the auto body field but the record does not reflect that every effort has been made to find him a job i[n] his usual profession that he has the skills to perform.  It would be my opinion that a change of placement vendor needs to take place so that a more refined and sophisticated job search be pursued.

 

The matter came on for hearing on November 22, 2004.  Issues at hearing included whether or not the employee needed to be retrained pursuant to Minn. Stat. ' 176.102 in order to be rehabilitated from the effects of his work injuries and, if so, whether the proposed retraining program in civil engineering and surveying technology was appropriate for him and consistent with the goal of statutory retraining.  Berkley had indicated in a letter dated three days earlier that it would not be participating in the hearing but that it shared the position of General Casualty, that the retraining proposal at issue was neither reasonable nor necessary.  Evidence submitted at hearing included copious records of placement specialist Tomczak, detailing both her assistance several times a week of the employee in his job search and the findings of her labor market survey regarding the prospects of the employee=s proposed retraining in civil engineering and surveying technology.  Also submitted into evidence were the job search logs of the employee, itemizing some five hundred specific employment sources or contacts that he had consulted over the course of the sixteen months from November 8, 2002, through March 6, 2004.  Evidence submitted also included the testimony of QRC Delich for the employer and insurers, who essentially reiterated the opinions that she had expressed in her report of November 16, 2004.  Also testifying at hearing, for the employee, was QRC Tollefson, in part to the effect that placement specialist Tomczak=s assistance of the employee with his job search had been diligent and that the employee was in all ways cooperative with rehabilitation efforts.  She testified also that, although the employee might still be earning less than his pre-injury weekly wage after working five years in the field of the proposed retraining, she did not know of any other two-year program of retraining that would bring the employee a higher average weekly wage.

 

By findings and order filed January 5, 2005, the compensation judge concluded in part that there was Ano question@ that the employee was in need of retraining and that the retraining program at issue was appropriate for him.  On those conclusions the judge ordered that the employer and its insurers pay for the program at issue and for wage loss benefits as appropriate.  The employer and General Casualty 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, Athey 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.  The Need for Retraining

 

In order to be entitled to an award of retraining, an employee must first of all demonstrate Athe reasonableness of retraining as compared to returning to work with employer or other job placement activities.@  Poole v. Farmstead Foods, 42 W.C.D. 970, 978 (W.C.C.A. 1989).  At Finding 32, the compensation judge concluded that the employee was in need of retraining in order to reach an economic status as close as possible to what he would have enjoyed without his injury, and in his memorandum the judge added that there was Ano question@ that this was true.  The employer and General Casualty contend that substantial evidence does not support the judge=s conclusion.  They argue that Athe employee conducted a chaotic, unfocused job search that offered scant chance of successful placement@ and that Athe employee failed to properly explore the potential of returning to work with his pre-injury employer.@  We are not persuaded.

 

At the very beginning of his memorandum, the compensation judge stated expressly that he Aaccepts the testimony of QRC Ione Tollefson in this matter.@  In her testimony, QRC Tollefson suggested clearly that the employee=s job search, as directed by Ms. Tomczak under Ms. Tollefson=s own oversight, was in her opinion reasonable and diligent.  This opinion is amply supported by QRC Tollefson=s own records, in which it is frequently reiterated, and by the records of Ms. Tomczak and the job search logs of the employee.  We acknowledge that much of the employee=s vocational rehabilitation assistance did involve inquiry into possible retraining alternatives, particularly near the end, and that the employee=s own logs do reflect some redundancy and lack of focus.  However, Ms. Tollefson is an experienced QRC, and a trier of fact's choice between experts whose testimony conflicts is usually upheld unless the facts assumed by the expert in rendering her opinion are not supported by the evidence.  See Nord v. City of Cook, 360 N.W.2d 337, 342-43, 37 W.C.D. 364, 372-73 (Minn. 1985).  We cannot on this record conclude that Ms. Tollefson=s opinion was based on any false premises.  And while some of the employee=s employment contacts did seem to be directed on occasion toward jobs that might have exceeded his restrictions, we cannot say that they did so exclusively or unreasonably.  Moreover, particularly given the fact that the employer did at least once bring back the employee for post-injury work and so was apparently aware of his restrictions and interest in continuing employment, we also cannot find unreasonable the judge=s implicit conclusion that QRC Tollefson=s attempts to find suitable reemployment for the employee with the employer were satisfactory.  Because it was not unreasonable, and given its reliance on the expert opinion of QRC Tollefson, we affirm the compensation judge=s conclusion that the employee is in need of retraining.  See  Hengemuhle, 358 N.W.2d at 59, 37 W.C.D. at 239; Nord, 360 N.W.2d at 342-43, 37 W.C.D. at 372-73.

 

2.  The Appropriateness of the Retraining Program at Issue

 

At Finding 33, the compensation judge concluded that the proposed retraining program in civil engineering and surveying technology is an appropriate program for the employee.  The employer and General Casualty contend that this conclusion is unsupported by substantial evidence.  They argue that case law requires that, in order for a retraining program to be approved, there must be (1) a likelihood that the employee will succeed in the formal training of the program itself, (2) a likelihood that retraining will result in reasonably attainable employment, and (3) a likelihood that the retraining will produce an economic status as close as possible to that which the employee would have enjoyed without the disability.  See Wirtjes v. Interstate Power Co., 479 N.W.2d 713, 46 W.C.D. 95 (Minn. 1982); Poole, 42 W.C.D. at 978.  They concede that the employee satisfies the first of these three factors, but they contend that he cannot satisfy the second and the third.  We are not persuaded.

 

a.  The Likelihood that this retraining will result in employment.  The employer and General Casualty contend that there is little certainty that completion of the retraining program at issue will result in gainful employment for the employee.   They argue that, although Ms. Tomczak=s study^[3] indicated that ninety-four percent of 2002 graduates from the proposed program found related jobs upon graduation, most of those found their jobs in North Dakota rather than in Minnesota.  They argue that, while QRC Tollefson testified that Ms. Tomczak=s survey revealed good job potential in the field, the survey was based on only eleven potential employers, which they argue was an insufficient sample group.  We conclude, however, that it was not unreasonable for the judge to find, in reliance on QRC Tollefson=s expert testimony, that the employee=s completion of the proposed retraining program is likely to result in gainful employment.  Ninety-four percent employment of 2002 graduates from the program does, after all, portend a good likelihood that the employee could also find employment upon his completion of the program, particularly given his evidently good aptitude for and current performance in college studies.  That the majority of the successful job seekers found their jobs in North Dakota rather than in Minnesota may well be explained, we suppose, by the fact that NDSCS is a North Dakota school, perhaps attended mostly by North Dakota residents.  Moreover, that QRC Tollefson surveyed only eleven potential employers, rather than Aa much broader area, such as out-state Minnesota, Rochester, St. Cloud, and Sioux Falls,@ as the employer and General Casualty contend should have been surveyed, is not at all persuasive contrary evidence, since an employee is entitled to limit his job search to a reasonably local labor market, and--more importantly--in this case that local market appears to be a good one.

 

b.  The Likelihood that any resultant employment will restore lost economic status.  The employer and General Casualty contend also that even successful employment following successful completion of the proposed retraining program is unlikely to produce an economic status as close as possible to the employee=s pre-injury economic status.  They note that Ms. Tomczak=s survey of eleven potential employers in the area of the employee=s proposed retraining revealed an expectation of the equivalent of a starting weekly wage of only $440.00 to $652.40, arguing that such a wage, when compared with the employee=s pre-injury weekly wage, would constitute at best a negative disparity of at least $283.00.  Even after five years, they argue, the employee could only anticipate a top weekly wage of $865.00, still well beneath his pre-injury wage.  They argue further that the employee explored only four other possible retraining programs, two of themBnursing and x-ray technician--outside his physical restrictions, one of themBcomputer voice networkingBhaving an even lower job market potential than civil engineering technician, and one of themBlab technicianBbeing uninteresting to the employee.  They argue that the employee should at least have conducted a more thorough investigation into other potential retraining programs before choosing the one he did.

 

We conclude that the judge=s decision on this issue was not unreasonable.  Although the anticipated starting wage in the field of the employee=s proposed retraining might be only about half his pre-injury wage, it remains substantially better than any wage that he has been able to find without retraining, and the anticipated wage five years after entry into the field at least approaches the pre-injury wage and, according to one employer in the field, might well substantially exceed it with very hard work.  Moreover, with regard to the breadth of Ms. Tollefson=s retraining investigation, the compensation judge was entitled to credit the QRC=s testimony that she knew of no other two-year program of retraining that would bring the employee a higher weekly wage and to conclude therefrom that the proposed retraining was Alikely to produce an economic status as close as possible to that which the employee would have enjoyed without disability.@  Poole, 42 W.C.D. at 978 (emphasis added).  Having concluded that it was not unreasonable for the compensation judge to rely on QRC Tollefson=s opinion that the proposed retraining program was likely to result in employment and that that employment was likely to produce an economic status as close as possible to the employee=s pre-injury economic status, we affirm the judge=s conclusion that the proposed retraining program is appropriate for the employee.  See Hengemuhle, 358 N.W.2d at 59, 37 W.C.D. at 239; Nord, 360 N.W.2d at 342-43, 37 W.C.D. at 372-73.

 

Having affirmed the judge=s conclusions both that the employee is in need of retraining and that the proposed retraining plan is appropriate for him, we affirm the compensation judge=s award of the retraining here at issue.