GARY R. MEYER, Employee/Cross-Appellant, v. GEORGE F. COOK CONSTR. CO., and STATE FUND MUT. INS. CO., Employer-Insurer/Appellants, and GRESSER CONCRETE, and LIBERTY MUT. INS. CO., Employer-Insurer, and STELLAR CONCRETE & MASONRY, and LUMBERMEN=S UNDERWRITING ALLIANCE, Employer-Insurer.

 

WORKERS= COMPENSATION COURT OF APPEALS

JUNE 27, 2005

 

No. WC04-325

 

HEADNOTES

 

CONTRIBUTION & REIMBURSEMENT; CAUSATION - GILLETTE INJURY.  The compensation judge did not err in denying the employer and insurer=s contribution claim where the expert opinions supporting the claim were based on faulty assumptions regarding the nature of the employee=s work activities for the other employers.

 

REHABILITATION - RETRAINING.  Where the retraining plan was never amended to reflect the course of study that the employee was actually pursuing, and where there was no labor market survey or other evidence sufficient to establish either availability of employment or potential earnings, the compensation judge erred in awarding retraining benefits related to the employee=s attainment of a B.A. in political science, and the record did not support the employee=s claim that the judge should have awarded retraining benefits also related to the employee=s attainment of a M.A.

 

Affirmed in part and reversed in part.

 

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

Compensation Judge: Ronald E. Erickson

 

Attorneys: Raymond R. Peterson, McCoy, Peterson & Jorstad, Minneapolis, MN, for the Cross-Appellant.  Kim D. Amundson, Lynn, Scharfenberg & Associates, Minneapolis, MN, for the Appellants.  Ross K. Menk, Law Offices of Susan Conley, St. Paul, MN, for Respondents Gresser/Liberty.  Julie A. Williams, Law Offices of Elizabeth Holden Hill, Minnetonka, MN, for Respondents Stellar/Lumbermen=s.

 

 

OPINION

 

DEBRA A. WILSON, Judge

 

The employer, George F. Cook Construction Company, and its insurer, State Fund Mutual Insurance Company, appeal from the judge=s decision that the employee=s work activities with Gresser Concrete and Stellar Concrete & Masonry were not a substantial contributing factor in the employee=s disability and need for medical care and from the judge=s award of certain retraining benefits.  The employee cross-appeals from the judge=s denial of retraining benefits after December 15, 2002.  We affirm in part and reverse in part.

 

BACKGROUND

 

The employee injured both of his knees while serving in the military in Vietnam.  In 1970, he underwent surgery on both knees in the nature of lateral meniscectomies.  He was given a 10% service-connected disability rating at that time and went on to school at the University of Minnesota, obtaining an Associate of Arts Degree in Philosophy.  The employee left school in the mid 1970s and went to work as a cement finisher.

 

On November 30, 1995, the employee was working as a cement finisher with George F. Cook Construction Company [the employer], at an average weekly of $921.84, when he sustained a right knee injury.  In February of 1996, he underwent arthroscopic surgery to the right knee, during which a tear of the meniscus was excised by Dr. Jack Bert.  The employer and insurer paid temporary total disability benefits for various periods through May 5, 1996, when the employee returned to work.  The employee worked for various companies thereafter and did not undergo further medical treatment for his right knee condition until January 22, 1999, when he returned to Dr. Bert and was diagnosed with Atraumatic pre-patellar bursitis.@  The knee was then aspirated and injected with steroids.  The employer and insurer reinstituted payment of temporary total disability benefits effective January 22, 1999, and the employee returned to work at full wage on April 9, 1999.

 

The employee worked for Gresser Concrete [Gresser] from May 5, 1999, to November 20, 1999, and for Stellar Concrete and Masonry [Stellar] for eight hours in September 1999, 16 hours in October 1999, and 39 hours in December 1999.  During these jobs, he was able to kneel only on the left knee and worked with his right leg extended.

 

On November 30, 1999, the employee applied to the Veteran=s Administration [V.A.] for vocational rehabilitation.  On an application dated December 13, 1999, he indicated that he was attempting to get his service-related disability rating increased to 30% and that he wanted to return to school to obtain a teaching and graduate degree so that he could become a teacher.^[1]

 

On December 14, 1999, the employee returned to Dr. Bert, who diagnosed pre-patellar bursitis in the right knee, with a massive effusion.  Dr. Bert took the employee off work, and, on May 16, 2000, he performed a right pre-patellar bursectomy.  Following the surgery, the employee was advised to avoid any kneeling.  Temporary total disability benefits were recommenced by the employer and insurer effective December 14, 1999.

 

The employee returned to school at the University of Minnesota in January of 2000.  A March 3, 2000, note from the V.A. indicates that the V.A. had agreed to a vocational rehabilitation plan under which the employee was to complete a B.A. degree in political science, apply and gain acceptance to the College of Education M.Ed./Licensure program in social studies, complete the M.Ed. program, and then apply for Minnesota licensure to teach social studies.  The V.A. paid for the employee=s tuition, books, and fees and provided him with a subsistence allowance.

 

Dr. Peter Daly performed an independent medical examination for the employer and insurer on September 28, 2000, and diagnosed degenerative arthritis, which he related to the employee=s service injuries and inactive pre-patellar bursitis.  It was his opinion that the employee could work full time with restrictions against prolonged standing and repetitive squatting or kneeling.  He further opined that the employee had reached maximum medical improvement [MMI] from his November 30, 1995, work injury on August 10, 1996.  Dr. Daly=s report was served on the employee on October 11, 2000, and on January 31, 2001, the employer and insurer filed a notice of intention to discontinue temporary total disability benefits effective January 29, 2001, 90 days post-MMI.  The matter proceeded to an administrative conference.  After the conference, the employee filed an objection to discontinuance, which proceeded to a formal hearing, and, thereafter, the employee appealed from the compensation judge=s findings and order allowing discontinuance.  On December 14, 2001, the Workers= Compensation Court of Appeals issued its decision, vacating the compensation judge=s findings and order and remanding the matter to the judge.

 

On March 6, 2001, Thomas S. Saby, rehabilitation consultant, prepared a retraining plan at the request of the employee=s attorney.  Mr. Saby proposed that the employee be retrained to be a teacher of social studies at the high school level by obtaining a B.A. degree and then an M.Ed. in social studies.  The retraining plan included a labor market survey of job possibilities for social studies teachers at the secondary school level.

 

On March 13, 2001, the employee filed a claim petition, alleging underpayment of temporary total and temporary partial disability benefits and seeking retraining benefits.  On August 8, 2002, the employer and insurer filed a petition for contribution and/or reimbursement from Stellar and its workers= compensation insurer, relying upon the testimony of Dr. Bert and Dr. Daly at depositions taken in 2002.  On April 1, 2003, the employer and insurer petitioned for contribution and/or reimbursement from Gresser and its workers= compensation insurer, relying on an independent medical examination report of Dr. Nolan Segal dated November 11, 2002.  Orders joining Stellar and Gresser were issued, and an order for consolidation of the petitions for contribution and the claim petition was filed on July 8, 2004.

 

In the meantime, on August 1, 2002, the hearing on remand was held, and the judge filed his findings and order on August 15, 2002.  The judge found, in relevant part, that the employee had reached MMI on September 28, 2000, that notice of MMI was served on April 13, 2001, and that the employee was entitled to compensation for 90 days post-service of MMI or to July 12, 2001.  No appeal was taken from this decision.

 

On June 15, 2004, the parties filed a partial stipulation for settlement, wherein they stipulated that the employee=s weekly wage on November 30, 1995, was $921.84, and the employer and insurer agreed to make a lump sum payment of $12,000 in exchange for a to-date settlement of all claims for underpayment of temporary total and temporary partial disability benefits.  An  award on stipulation was filed on June 16, 2004.

 

The issue of retraining and the employer and insurer=s petitions for contribution and/or reimbursement proceeded to hearing on September 9, 2004.  At hearing, the employee testified that he was in a master=s degree program at the U of M in comparative international development education [CIDE].  While that degree would allow him to teach at the junior college level, it would not qualify him to teach in secondary schools.  The employee also testified that he did not know what he was going to do with his degree and that he would Aprobably@ go on to get his doctorate.

 

In findings and order filed on November 12, 2004, the compensation judge found that the employee was in need of retraining to lessen the impact of his work injury and to increase his employability; that the proposed retraining program Aleading to an undergraduate degree, which the employee has secured effective December 2002,@ is a course of study likely to produce an economic status as close as possible to that which the employee would have enjoyed without the disability; that the employee was entitled to retraining benefits from July 12, 2001, through December 15, 2002; and that the employer and insurer had not established that the employee=s work activities with Stellar  or Gresser were substantial contributing factors in the employee=s disability.  The employer and insurer appeal and the employee cross-appeals.

 

STANDARD OF REVIEW

 

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 (2004).  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, 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.@  Northern States Power Co. v. Lyon Food Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975).

 

DECISION

 

1.  Contribution/reimbursement Claim

 

The employer and insurer contend that the compensation judge erred in finding that the employee did not sustain injuries at Gresser and Stellar, in that both Dr. Bert and Dr. Daly stated that the employee had sustained Gillette^[2] aggravations during those employments.  We are not persuaded.

 

Dr. Bert did render an opinion apportioning some responsibility for the employee=s disability to a Gillette injury culminating in December of 1999.  However, a thorough reading of Dr. Bert=s deposition, taken on July 10, 2002, reveals that his opinion to this effect was premised on his understanding that the employee was doing a lot of repetitive kneeling on both knees leading up to December of 1999.  In fact, the employee specifically testified that, after he returned to work in 1996, he kept his right knee outstretched and knelt only on his left knee.  As such, Dr. Bert=s assumption that the employee was repetitively kneeling on his right knee is inaccurate.

 

Similarly, Dr. Daly testified that, if the employee had been directly weight bearing on his knees, in a kneeling fashion, for four hours a day, then that activity could have led to a Gillette injury culminating in 1999.  Again, however, the employee testified at hearing that he did not kneel on his right knee while working after 1996.  Therefore, Dr. Daly=s opinion that the employee sustained a Gillette injury is also based on a faulty premise.

 

Because the judge did not err in rejecting the opinions of the two doctors that the employer and insurer relied upon for their contribution/reimbursement claim,^[3] we affirm the judge=s decision on this issue.^[4]

 

2.  Retraining

 

Minn. Stat. ' 176.102, subd. 1(b), provides that rehabilitation Ais 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.@  AThe purpose of retraining is to return the employee to suitable gainful employment through a formal course of study.  Retraining is to be given equal consideration with other rehabilitation services, and proposed for approval if other considered services are not likely to lead to suitable gainful employment.@  Minn. R. 5220.0750, subp. 1.  Factors to be considered in determining an employee=s entitlement to retraining include: (1) the reasonableness of retraining as compared to returning to work with the 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; (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.  Poole v. Farmstead Foods, 42 W.C.D. 970, 978 (W.C.C.A. 1989)

 

In the present case, the employer and insurer contend that the compensation judge erred in awarding retraining benefits through December 15, 2002, because the record does not support his finding that a B.A. degree will return the employee to suitable gainful employment.  We agree.

 

The employee returned to college in January of 2000, in a program approved by the V.A., to obtain a B.A. in political science and an M.Ed. in social studies, which would allow the employee to become certified to teach at the secondary school level.  Mr. Saby proposed the same retraining plan, but he acknowledged at hearing that he did not consider other options.  Mr. Saby also testified that the employee was no longer following the plan that he had proposed.  The retraining plan proposed by Mr. Saby was the plan that was before the compensation judge for consideration, and that plan was never amended, even though it was clear at hearing that the employee had not enrolled in the M.Ed. program after he completed his B.A.

 

The compensation judge did not approve the retraining plan that was at issue before him at hearing.  Rather, the judge found that Athe proposed retraining program leading to an undergraduate degree, which the employee has secured effective December 2002, is a course of study that is likely to produce an economic status as close as possible to that which the employee would have enjoyed without the disability.@  Substantial evidence does not support this finding.

 

The compensation judge found that both vocational experts testified Athat the employment rate of University of Minnesota graduates in a similar course of study as undertaken by the employee is excellent.  Most of their graduates have little difficulty in procuring employment and can look forward to a starting salary of approximately $27,500.00 per year.@   However, while Mr. Saby=s labor market survey, attached to the retraining plan, indicates that teachers with a B.A. averaged $28,962.00 per year, his report also indicates that the employee would not be certifiable as a teacher in Minnesota with a B.A. in political science,^[5] and there was no labor market information regarding other employment opportunities for graduates with a B.A. in political science. The only information about employment opportunities with a B.A. was the testimony of Mr. Saby, at hearing, that political science majors have a fairly broad range of Aearning work possibilities@ and that Amany of the possibilities for political science majors are working in political campaigns which can be very exciting but very low paying.@  Mr. Saby also testified that the employee could have looked for work following the completion of his bachelor=s degree; Ahowever, I am not optimistic about how much he would be able to earn.@ In his employability assessment dated July 19, 2002, Mr. Saby indicated that he had contacted the political science department at the U of M to learn about work prospects for graduates with a B.A.  He learned that, of the 13 graduates in 2002, five had jobs.  He also reviewed jobs posted at the U of M in May/June of 2002, which included jobs paying $13.50- $18 per hour.^[6]  Mr. Saby=s testimony and related documentation do not reasonably establish that a B.A. degree in political science would likely result in reasonably attainable employment, or likely produce an economic status as close as possible to that which the employee would have enjoyed without the disability.

 

In addition, substantial evidence does not support the judge=s finding that the employee secured his B.A. in December of 2002.^[7]  A letter from Jane Anderson, CLA social sciences coordinator and academic advisor at the U of M, dated November 4, 2002, indicates that the employee was postponing graduation to the spring of 2003, to allow him to study abroad in Australia.  At hearing, the employee testified that he graduated with a B.A. in May of 2003.

 

Finally, the record indicates that the employee never intended to look for work with his B.A. degree.  At the time of hearing, the employee was still in school, working on a M.A. in CIDE.  The B.A. degree cannot be expected to return the employee to suitable gainful employment if the employee has no intention of looking for work with that degree alone.

 

Because there was no retraining plan leading to a B.A. in political science and no labor market survey establishing either the availability of jobs or what the employee could expect to earn with that degree, and because the employee had no intention of looking for work with his B.A. degree alone, substantial evidence does not support the judge=s finding that the B.A. degree program was likely to produce an economic status as close as possible to that which the employee would have enjoyed without the disability.  We therefore reverse the judge=s finding and his corresponding award of retraining benefits.

 

3.  Employee=s Cross-Appeal

 

The employee cross-appeals from the judge=s denial of benefits beyond December 15, 2002, contending, first, that the compensation judge should have awarded benefits through May of 2003, when the employee actually attained his bachelor=s degree.  For the reasons stated above, we reject this argument.

 

In the alternative, the employee contends that the compensation judge meant to and should have awarded the full retraining program, which the employee identifies as Aeither earn masters in education and then his licensure or he must earn a masters in CIDE,@ in that following one of these tracks Ais necessary in order for him to teach.@  The employee appears to agree that the retraining plan, as written, along with the attached labor market survey, were geared towards the employee obtaining a master=s degree and teaching certification.  The employee goes on to allege that projections on earnings Awere all based on the attainment of a master=s degree whether it is in Education or in CIDE.@  However, it is simply not true that earnings projections were based on a master=s degree in CIDE.  In fact, no labor market survey was prepared for that degree.

 

The employee further contends that switching to a master=s degree in CIDE is actually an improvement in his retraining plan, because with Athis degree he would not have to earn his teaching licensure,@ and Afacts show that graduating with the CIDE masters will improve his chances for employment.@  Again, we are not persuaded.  While Mr. Saby testified that every graduate of the CIDE program in the last five years, who had not gone on to further education, had secured employment, he could not identify any specific jobs or earnings, other than to state that one student had started at $32,500 annually.  And, while the employee might be able to teach at the junior college level with such a degree, there was no specific evidence about what junior college teaching jobs pay.  In fact, Mr. Van Wagner testified that community and technical colleges like to hire Ph.D. candidates, who Ausually work as TAs [teaching assistants] and are not well paid.@

 

The most troubling aspect of the employee=s retraining claim, however, concerns the fact that the employee testified that, in all likelihood, he will not search for work once he obtains his M.A.  He could not say when he was going to get a job, stating that he would Aprobably go on to my doctorate,@ which he predicted would take an additional four to five years after the master=s degree.  The employee estimated that he would be 60 years old by the time he obtains his Ph.D.  The employee repeatedly testified that he was passionate about sustainable global international development and that he was not in college to make money.  While his enthusiasm is admirable, the purpose of retraining is to return the employee to suitable gainful employment.  Because there is insufficient evidence to establish that the program that the employee is currently pursuing will accomplish that aim, we affirm the judge=s denial of retraining in the M.A. degree program.