MARK S. KAUFMANN, Employee, v. NORTH STAR STEEL and NATIONAL UNION INS. CO./CRAWFORD & CO., Employer-Insurer/Appellants.

 

WORKERS= COMPENSATION COURT OF APPEALS

JANUARY 27, 2005

 

No. WC04-230

 

HEADNOTES

 

REHABILITATION - RETRAINING; TEMPORARY TOTAL DISABILITY.  Where the compensation judge reasonably concluded the employee audited courses during the fall of 2003 after returning from active duty overseas with the United States Army, prior to recommencing his degree coursework in winter quarter 2004, the compensation judge did not err in ordering that the rehabilitation plan be amended to include the audited coursework, and ordering the employer and insurer to pay temporary total retraining benefits from September 22 through November 30, 2003.

 

PRACTICE & PROCEDURE - MATTERS AT ISSUE.  Where the employee=s requests indicated the nature of the dispute included the Adirection of the rehab plan@ and entitlement to retraining benefits, the compensation judge did not improperly expand the issues by raising and determining an issue not pled or litigated, as the issue in dispute, whether the employee was entitled to wage loss benefits from September 22 to November 30, 2003, was clearly raised and encompasses the underlying dispute whether styled as an amendment to the rehabilitation plan or a dispute over entitlement to benefits under the existing rehabilitation plan.

 

Affirmed.

 

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

Compensation Judge: Gary M. Hall

 

Attorneys: David R. Vail, Soderberg & Vail, Minneapolis, MN, for the Respondent.  Louis R. Tilton and Jeffrey J. Lindquist, Pustorino, Tilton, Parrington & Lindquist, Minneapolis, MN, for the Appellants.

 

 

OPINION

 

THOMAS L. JOHNSON, Judge

 

The employer and insurer appeal the compensation judge=s decision ordering that the employee=s retraining plan be formally amended to include coursework audited in the fall of 2003 and ordering payment of weekly temporary total disability benefits to the employee for the time period during which he audited the classes.  We affirm.

 

BACKGROUND

 

Mark S. Kaufmann, the employee, sustained a personal injury on April 17, 2000, while working for North Star Steel, the employer, insured by National Union Fire Insurance with claims administered by Crawford and Company.  The employer and its insurer admitted liability for the employee=s personal injury.  The employee was unable to return to his job with the employer, was assigned a qualified rehabilitation consultant (QRC), Michael Stern, and a vocational rehabilitation plan was implemented.  Initial attempts at job placement were unsuccessful and a retraining plan was ultimately approved, involving a course of study at Dunwoody Institute with the goal of obtaining an A.A.S. degree in Architectural and Mechanical Design of HVAC systems.  Under the terms of the retraining plan, the employer and insurer were obligated to pay for the employee=s tuition and other costs of the retraining program together with weekly retraining benefits under Minn Stat. ' 176.102 subd. 11(b).^[1]

 

The employee commenced his course of study at Dunwoody in September 2001.  By the end of November 2002, the employee had successfully completed four quarters of the program  and was on schedule to complete his degree in June 2003, as projected in the retraining plan.  On December 11, 2002, shortly after the employee began winter quarter classes, he was called to active duty by the United States Army and was sent to Germany.  The employee=s retraining benefits were discontinued.

 

The employee returned home in September 2003.  He returned to Dunwoody, but the classes then being offered were the same as those he had completed during the fall quarter of 2002.  The classes the employee needed to continue his degree would not be offered until the winter quarter which began in December 2003.  The employee made arrangements with Dunwoody to audit, without tuition charge, the 2003 fall quarter classes, all of which he had successfully completed the year before.  Auditing these courses did nothing to change the employee=s curriculum or the date of his graduation.  In December 2003, the employee commenced winter quarter classes and the insurer reinstated restraining benefits.  The employee successfully completed the program in June 2004.

 

On October 30, 2003, the employee filed a claim petition seeking temporary total disability A(retraining benefit) 09/20/03 to present and continuing.@  On December 10, 2003, the employee filed a Request for Certification of a Dispute with the Department of Labor and Industry.  The nature of the dispute was ADirection of the Rehab Plan: The employee is in a retraining plan but the employer and insurer refuse to pay retraining benefits.@  The department refused to certify the case and the employee filed a Request for Assistance in January 2004, stating Athere is a dispute over the direction of the rehab plan: The employee is in a retraining plan but the employer and insurer refuse to pay retraining benefits.@  The case was heard by a compensation judge.  In a Findings and Order filed July 7, 2004, the compensation judge found the Aemployee reasonably believed it was necessary to retake the fall quarter courses as a refresher before starting winter quarter where he left off the year before.  He attended the audited classes every day.@  (Finding 3.)  The compensation judge further found the employee=s audit of the courses was consistent with the spirit of the retraining plan.  The compensation judge ordered that the employee=s retraining plan be formally amended to include the coursework audited in the fall of 2003, and ordered the insurer to pay weekly benefits to the employee for the time period during which time he audited the classes.  The employer and insurer appeal.

 

DECISION

 

The issue, as stated by the compensation judge in the Findings and Order, was whether the employee was entitled to temporary total disability benefits from September 22 through November 30, 2003, as part of his retraining plan.  The appellants contend the employee never sought to amend his retraining plan and that issue was not pled, raised or argued at the hearing.  They argue the compensation judge exceeded his jurisdiction by raising and determining an issue, an amendment to the retraining plan, which was not pled or litigated at trial.  Accordingly, the appellants assert the compensation judge=s order amending the retraining plan and the consequent award of weekly retraining benefits must be vacated.

 

It is clear from the pleadings filed by the employee, that the issue in dispute was identified as the direction of the rehabilitation plan and the employee=s entitlement to retraining benefits from and after September 20, 2003.  At the hearing, both parties agreed the issue was whether the employee was entitled to temporary total disability benefits from September 22 through November 30, 2003, as part of the retraining plan.  (T. 5-6.)  The compensation judge ordered the employee=s retraining plan be formally amended to include the coursework audited during the fall of 2003.  Admittedly, the issue of whether the retraining plan should be amended was not specifically pled.  In this case, however, we cannot conclude that this fact mandates a vacation of the compensation judge=s Findings and Order.

 

Michael Stern, the employee=s qualified rehabilitation consultant, testified he did not seek to amend the retraining plan because Athe plan was to continue schooling when he [the employee] returned from active duty so there wasn=t an absolute need to change it.@  (T. 41.)  The appellants disagree, and argue the employee=s claim does require a formal amendment to the rehabilitation plan.  Whether the dispute in this case is styled as an amendment to the rehabilitation plan or a dispute over an entitlement to benefits under the existing plan is not determinative.  Rather, the issue was whether the employee was entitled to wage loss benefits from September 22 through November 30, 2003.  That issue was clearly pled by the employee and litigated at the hearing, and encompasses the underlying disagreement, however described.  We therefore reject the appellant=s argument that the compensation judge exceeded his jurisdiction in deciding an issue which had not been raised.

 

Minn. Stat. ' 176.011, subd. 23, defines retraining as a formal course of study in a school setting which is designed to train an employee to return to suitable employment.  Auditing classes previously completed does not, the appellants argue, constitute a formal course of study.  There is no dispute the employee earned no credit toward his degree while auditing the previously completed courses.  Further, the retraining plan contained no request to audit courses.  Accordingly the appellants argue the employee has no statutory right to receive benefits during the period in question.

 

QRC Stern testified it was appropriate for the employee to audit the classes because of the technical nature of the training he was taking and because of the time that had passed since he had last been in school.  The employee testified he believed it was necessary for him to review the classes from his prior quarter before commencing the winter quarter.  At issue in this case are approximately two months of weekly wage loss benefits.  The employee successfully completed the retraining program in June 2004 and received a degree.  We conclude the compensation judge=s order awarding weekly retraining benefits from September 22 to November 30, 2003, was not unreasonable in this case.  The compensation judge=s decision is affirmed.