The self-insured employer appeals from the compensation judge’s determination that the employer did not prove that it had notified the employee of the 156-week time limitation for filing a request for retraining; from the judge’s determination that the employee’s request for retraining was timely filed; and from the judge’s determination that the proposed retraining plan, to result in a bachelor’s degree in business management/accounting, is reasonable and necessary to restore the employee’s lost earning capacity.  We affirm.

Jeanne Davis Clegg [the employee]^[1] began working for Community Memorial Hospital (n/k/a Winona Health Services) [the employer] in December 1990.  Between December 1990 and November 17, 2002, the employee worked for the employer on the 3:00 to 11:00 p.m. shift, first as an x-ray technician and then as a registered CT technologist.  On November 17, 2002, while so employed, the employee sustained a work injury to her left thumb and wrist.  At the time of her injury, the employee was forty-one years old, was earning a weekly wage of $785.80, and was covered by a benefits package consisting of paid vacation, health and dental insurance, life and disability insurance, and employer contributions to a retirement account.  The employer, which was self-insured against workers’ compensation liability, with claims administered by Berkley Risk Administrators Company [BRAC], admitted liability for the employee’s injury and commenced payment of benefits.

Treatment for the employee’s injury has been long and complicated and has included five hand and wrist surgeries, the first two performed by Dr. William Cooney at the Mayo Clinic and the later three, including a wrist fusion surgery, performed by Dr. Scott McPherson.  Dr. McPherson ultimately rated the employee's related permanent impairment at 20% of the whole body, and the employer paid benefits accordingly.  On April 10, 2007, Dr. McPherson permanently restricted the employee from lifting more than two pounds with her left hand, five to ten pounds with both hands, and from any repetitive use or stressful grasping and gripping with her left hand.  As of July 10, 2008, Dr. McPherson’s diagnosis of the employee’s left thumb and wrist area included post-traumatic left wrist arthrosis and superficial radial nerve neuropathy; status post left wrist arthrodesis, distal ulna stabilization; and superficial radial nerve neurectomy with burying of the proximal nerve stump.  The parties have agreed that the employee had reached maximum medical improvement with regard to her 2002 work injury by June 27, 2007.

The employee selected John Peterson to serve as her qualified rehabilitation consultant [QRC], and a rehabilitation consultation was conducted on October 13, 2003.  The initial rehabilitation plan called for a return to work with the employer, for whom the employee had evidently already been working in a light-duty capacity for a couple of months.  QRC Peterson thereafter followed the employee’s medical progress and facilitated additional returns to light-duty work.

On November 15, 2004, the employee's attorney, Mary Morin, sent a letter to the BRAC's claims adjuster, Bridgette Buron, enclosing a notice of appearance as attorney for the employee and requesting a complete copy of the claim file, followed by a list of particular documents.  According to exhibits later offered at hearing, a benefit explanation letter setting forth the notice of the time limit for filing a retraining claim was not included with the information sent in reply to Attorney Morin.  By January of 2005, it had become clear that the employee would not be able to return to her pre-injury occupation, and in March of 2005, the employer advised the employee and her QRC that light-duty work was no longer available.  QRC Peterson then administered vocational testing and initiated job placement services.

On July 25, 2005, the employee began working for Wal-Mart of Winona in its accounting department.  The job paid $7.55 per hour, but the employee was not eligible for benefits until she had worked there for six months.  On September 11, 2005, the employer formally terminated the employee's job at the hospital for lack of light-duty work.  The employee’s job with Wal-Mart, however, continued until January 2006, when the employee underwent surgery.  By June of 2006, job placement services were resumed, and QRC Peterson noted that he was simultaneously encouraging the employee to explore retraining interests, anticipating that retraining would be required to restore the employee’s lost earning capacity.  On August 22, 2006, the employee obtained a position as a receptionist and customer service provider at Robeson Family Vision Center.  Her duties at this job included answering the telephone, scheduling appointments, pulling patient files, helping people pick out frames and lenses, adjusting glasses for fit, checking orders when received, unpacking frames, and putting frames on display.  She remained at this job through the date of hearing, by which date she was being paid $8.50 per hour, with 1.3 weeks per year of paid vacation.  Robeson offered no insurance or retirement plan.

On June 22, 2007, QRC Peterson submitted a retraining plan to the employer's claims administrator, recommending that the employee complete her bachelor’s degree at Winona State University in business management/accounting.  On June 27, 2007, Ms. Buron served and filed a Notice of Benefit Payment [NOBP] with certain attachments.  When Attorney Morin received her copy of this NOBP, documents were not attached.  On July 2, 2007, Attorney Morin asked Ms. Buron for a copy of the written notice that BRAC had sent to the employee notifying her of the 156-week time limit for a filing a retraining claim.  Evidently reluctant to retrieve the original notice from the many volumes of the employee's file in storage, Ms. Buron pulled a copy from her firm's computer system, changing the employee's name from "Davis" to "Clegg," the employee's current married name, to avoid future misfiling.  When she received the copy dated June 2, 2003, but addressed to the employee with her current married name, which she had used only after her 2005 marriage, Attorney Morin expressed concern that the letter had been backdated.  Upon learning of that concern, on July 10, 2007, Ms. Buron again pulled up the notice letter on the computer and changed the name back to “Davis.”

On July 3, 2007, the employee’s attorney filed a rehabilitation request with the Department of Labor and Industry [DOLI] seeking approval of the retraining plan.  On July 12, 2007, the self-insured employer submitted its response to the request for retraining, contending that the employee’s retraining plan was not reasonable and necessary under Minnesota Statutes section 176.102, and that, pursuant to subdivision 11(c) of that statute, the employee’s request for retraining was untimely because it had not been filed before 156 weeks of combined temporary total and temporary partial disability benefits had been paid. The employer alleged that, as of June 27, 2007, the employee had already been paid 181.8 weeks of temporary total and temporary partial disability benefits.  The employer attached to its rehabilitation response a copy of a letter allegedly sent to the employee on June 2, 2003, in accordance with Minnesota Statutes section 176.102, subdivision 11(d), notifying the employee of the 156-week limitation for filing a request for retraining.

The employee’s claim for retraining benefits came on for hearing before a compensation judge on October 22, 2008.  Issues presented to the judge included the following:  (1) whether the employer had informed the employee in writing about the time limit for filing a retraining claim, pursuant to the statute; (2) whether the employee’s claim for retraining is barred by the provisions of Minnesota Statutes section 176.102, subdivision 11(c); and (3) whether the proposed retraining plan, to result in a bachelor’s degree at Winona State University, is necessary to restore the earning capacity impaired by the employee’s November 17, 2002, work injury.  Evidence offered at hearing included testimony by the employee, by QRC John Peterson, and by BRAC's claims adjuster, Bridgette Buron, together with the deposition testimony of vocational expert Jan Lowe.  Documentary evidence included the employee’s medical and rehabilitation records, a certified copy of the employee’s file at DOLI, and an affidavit of Attorney Mary Morin with attached correspondence and records bearing on the issue of the employer’s retraining notification.

Ms. Buron testified that she had worked for BRAC for nine years and that, since the time that the employee began losing time from work in 2003, she had been the only adjuster assigned to the employee’s claim, although she had had assistants who handle some of the mailing, photocopying, and filing.  Ms. Buron testified that paper files are stored alphabetically by the claimant’s last name, not by file number, and that each file contains separate sections for billings, records, state forms, rehabilitation, legal matters, and general matters.  She testified about her general procedures for handling a claim and her recollection of how she handled the employee’s claim.  Ms. Buron testified that the routine handling of a lost time claim in 2003 would have involved sending to the employee a form benefit explanation letter, setting forth not only the medical, wage loss, and rehabilitation benefits available under the workers’ compensation law but also notice to the employee of the time limitations for filing a request for retraining.  Ms. Buron indicated that her practice in 2003 was to attach the form benefit explanation letter to the notice of insurer’s primary liability determination form [NOIPLD].  Both the letter and the NOIPLD would be mailed to the employee, but only the NOIPLD would be filed with DOLI.  Exhibits offered at trial appear to manifest that a benefit explanation letter was prepared on June 2, 2003, for mailing to Jeanne M. Davis at her address in Winona.  However, the employee testified that she does not remember receiving the form letter dated June 2, 2003, that she has kept all paperwork related to her work injury, including all forms and letters received from BRAC, and that her personal records do not include the form letter.  She testified that she first received notice of the 156-week time limitation when she received the employer’s rehabilitation response dated July 11, 2007.  Ms. Buron testified that she could think of no reason why she would not have sent a benefit explanation letter to a claimant who is losing time from work.  She testified that the benefit explanation letter should have been, but was not, attached to the NOIPLD that was filed in the state forms section of the claim file that was sent to Attorney Morin in late 2004.  With regard to the NOBP served and filed June 27, 2007, Ms. Buron acknowledged that, on occasion, things do get sent out of the claims office without the proper attachments.

With respect to the proposed retraining plan, the employee testified that there is no opportunity for her to advance into higher level work with more pay at Robeson Family Vision Center.  QRC Peterson and vocational expert Jan Lowe agreed, testifying that the employee’s present job represents her present earning capacity, given her current education, work history, and skills, and that she is unlikely to find a higher paying job within fifty miles of Winona, Minnesota, with her present skills.

Vocational expert Jan Lowe conducted a vocational evaluation consisting of a diagnostic interview and vocational testing on October 24, 2007.  In a report dated December 11, 2007, and in her deposition testimony given October 20, 2008, Ms. Lowe indicated that she viewed the employee’s vocational test results as consistent with an ability to complete selected retraining programs at the vocational college level but that she did not believe that the employee would be successful in completing the proposed four-year college program or be able to find related employment.  Ms. Lowe noted also that the employee had reported a problem with dexterity that may affect her ability to perform in accounting positions, where there is a need to use a computer or adding machine.  After reviewing the employee’s vocational test scores, her physical restrictions, and a labor market survey, Ms. Lowe concluded that the employee does not have the vocational ability or physical capacity to perform jobs that exist in reasonable numbers, which she can access, that would propel her to the level of the earnings that she enjoyed at the time of her injury.  In other words, there are some instances where people cannot restore pre-injury earning capacity no matter what they do.

QRC Peterson testified that he was most familiar with serving clients in southeastern Minnesota, including Winona.  While he acknowledged that it may take several years for the employee to approach the earnings that she had at the time of her injury, he did project that the employee was likely to be able to replace her fringe benefit package early in a new career by obtaining employment at one of the large employers in the Winona area.  QRC Peterson testified that the employee’s current job at Robeson was not suitable from an economic standpoint but that the proposed retraining plan, which calls for a major in business administration and a minor in accounting, would result in higher income for her.  He explained that a degree in business administration is based on concepts that are very broad and applicable to a wide variety of business and employment environments and would provide the employee access to more and better jobs.  QRC Peterson felt that the employee’s prior educational history and her demonstrated ability to complete the coursework for a very demanding radiology program was a good predictor of her success at Winona State.  He acknowledged that the employee’s vocational test scores were in the average range, but he disagreed with Ms. Lowe regarding the employee’s likely ability to succeed at the proposed program.  He attached more significance to the employee’s maturity, her past academic successes, and her motivation.  He also felt that the employee had the physical capacity to participate and complete the program and then to work in a business environment upon completion of the program.  He noted that the employee has already demonstrated an ability to adapt and modify her work tasks to get a job done.  QRC Peterson testified that jobs in business administration are usually categorized as sedentary and that Dr. McPherson approved of the recommended program.  He also testified that, although most of the employer responses to his labor market survey suggested that future employment possibilities were in accounting rather than management, he nonetheless viewed his survey as a positive indicator for future employment in the Winona area.  While he agreed that the results of his labor market survey were not definitive in any way, he did find his results helpful.  QRC Peterson was of the opinion that completion of the proposed retraining program would restore the employee’s lost earning capacity and would be consistent with the goals of rehabilitation.  He did not believe that the employee would be able to restore her lost earning capacity without retraining.

In a findings and order issued November 20, 2008, the compensation judge found that the employee’s claim for retraining was not barred by the provisions of Minnesota Statutes section 176.102, subdivision 11(c), because the employer had failed to provide the employee with notice of the time limit for filing a retraining claim before paying her 80 weeks of temporary total and temporary partial disability benefits, as required by subdivision 11(d) of that section.  The judge found that, even though the employee had been paid 182 weeks of temporary total and temporary partial disability benefits as of the filing of the retraining request on July 3, 2007, the employer had not carried its burden of proving that it had sent proper notice of the 156-week time limit for filing a retraining claim.  The judge accepted the employee's testimony that she had no recollection of receiving the notification letter and was unable to locate a copy among her personal records.  Finding also that the retraining plan proposed by the QRC was reasonable and necessary in order to return the employee to an economic status as close as possible to the one that she had before her work injury, the judge approved the employee’s retraining plan.  The self-insured employer appeals.

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 (2008).  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).

Pursuant to Minnesota Statutes section 176.102, subdivision 11(c) and (d),

            (c)  Any request for retraining shall be filed with the commissioner before 156 weeks of any combination of temporary total or temporary partial compensation have been paid.  Retraining shall not be available after 156 weeks of any combination of temporary total or temporary partial compensation benefits have been paid unless the request for the retraining has been filed with the commissioner prior to the time the 156 weeks of compensation have been paid.

            (d)  The employer or insurer must notify the employee in writing of the 156-week limitation for filing a request for retraining with the commissioner,  This notice must be given before 80 weeks of temporary total disability or temporary partial disability compensation have been paid, regardless of the number of weeks that have elapsed since the date of injury.  If the notice is not given before the 80 weeks, the period of time within which to file a request for retraining is extended by the number of days the notice is late, but in no event may a request be filed later than 225 weeks after any combination of temporary total disability or temporary partial disability compensation have been paid.  The commissioner may assess a penalty of $25 per day that the notice is late, up to a maximum penalty of $2,000, against an employer or insurer for failure to provide the notice.  The penalty is payable to the commissioner for deposit in the assigned risk safety account.

Minn. Stat. § 176.102, subd. 11(c) and (d).  At Finding 15, the compensation judge asserted that "[t]he employer and insurer have the burden of proving they filed all documents required to be filed by Chapter 176 of the Minnesota statutes and the Minnesota Workers' Compensation rules."  Then, at Finding 28, the judge concluded that, "[p]ursuant to Minn. Stat. § 176.102, Subd. 11(d), the employee's time span for filing a retraining claim was extended by the failure of the employer and its claims administrator to notify the employee of the time limit for filing a retraining claim before paying her 80 weeks of temporary total and temporary partial disability benefits."  On that finding, even though the employee had been paid 182 weeks of temporary total and temporary partial disability benefits as of July 2, 2007, the judge found that the employee's request for retraining was timely filed and not barred by the statute.

Service of papers and notices shall be by mail or otherwise as the commissioner or the chief administrative law judge may by rule direct.  Where service is by mail, service is effected at the time mailed if properly addressed and stamped.  If it is so mailed, it is presumed the paper or notice reached the party to be served.  However, a party may show by competent evidence that that party did not receive it or that it had been delayed in transit for an unusual or unreasonable period of time.  In case of nonreceipt or delay, an allowance shall be made for the party's failure to assert a right within the prescribed time.

Minn. Stat. § 176.285.  In the present case, the judge found that the employer did not carry the burden of proving that it sent proper notice of the time limit for filing a retraining claim.  Under Minnesota Statutes section 176.285, service is effected at the time of mailing if the document is properly addressed and stamped.  Service of the notice required by Minnesota Statutes section 176.102, subdivision 11(d), is governed by Minnesota Statutes section 176.285.  BRAC did not offer evidence as to its mailing procedures, and it specifically did not offer evidence as to proper service of the notification letter of June 2, 2003.  The mere fact that the letter was generated on BRAC's computer system does not establish that it was placed in an envelope, properly addressed and stamped, and then mailed.  The judge concluded that, "through human error, either the benefit information letter generated on computer on June 2, 2003, was never printed out, or that a member of the support staff neglected to attach it to the copy of the notice of primary liability determination sent to the employee."  Even if the letter had been mailed, the judge accepted the employee's testimony that she did not receive it.  The judge's finding that the notice in this case was not filed with DOLI, was not sent with a proof of service, and was not sent by certified mail was not made to suggest that such action was required by the statute, but merely to point out methods of proving service of the notice.

Substantial evidence supports the compensation judge’s finding that the employer did not prove that it sent proper written notice of the time limit for filing a claim for retraining.  Ms. Buron testified that her practice was to attach the benefit explanation letter to the NOIPLD and that she depended upon her assistants to photocopy and mail these documents.  In this case, it was BRAC’s procedure to file the NOIPLD with DOLI but not the explanation letter.  Both the letter and the NOIPLD were to be sent to the employee, however.  Therefore, at some point the two documents were separated for purposes of mailing and filing.  It was also Ms. Buron’s practice to file the two documents in the state form section of the claim file.  Here, it was later determined that the NOIPLD was in the state form section but the benefit explanation letter was not.  It had been misfiled in the general section of the claim file.  When Attorney Morin requested a complete copy of the claim file on November 15, 2004, she was provided with the NOIPLD, but not the benefit explanation letter setting forth the 156-week time limit.  The judge noted also that, in June of 2007, Ms. Buron’s assistant failed to attach supporting documentation to Attorney Morin’s copy of an NOBP that had been served.  The judge concluded that this was further evidence of procedures that were subject to human error.  This conclusion, coupled with the employee’s testimony, provides substantial support for the judge’s conclusion that proper notice was not in this case accomplished.  Therefore we affirm the judge’s determination that the employer did not carry its burden of proving that it sent proper written notice of the 156-week time limit for filing a retraining claim to the employee in June of 2003.  We also affirm the judge’s finding that the employee’s request for retraining was timely filed and not barred by the statute.

Retraining an injured worker for another occupation may be appropriate if the retraining "will materially assist the employee in restoring his impaired capacity to earn a livelihood."  Norby v. Arctic Enters., Inc., 305 Minn. 519, 521, 232 N.W.2d 773, 775, 28 W.C.D. 48, 50 (1975).  Factors to be considered in evaluating a proposed retraining plan include the following:  (1) the reasonableness of retraining as compared to job placement activities; (2) the likelihood of the employee succeeding in a formal course of study, given the employee's abilities and interests; (3) the likelihood that retraining will result reasonably attainable employment; and (4) the likelihood that retraining will produce an economic status as close as possible to that which the employee enjoyed prior to her disability.  Poole v. Farmstead Foods, 42 W.C.D. 970, 978 (W.C.C.A. 1989).  The compensation judge found that the retraining plan entered into by the employee and her QRC in June of 2007, with a goal of obtaining a bachelor of science degree in business management/accounting, is reasonable and appropriate and likely to return the employee to the economic status she would be enjoying but for the permanent effects of her work injury.

The employer contends that the record as a whole lacks substantial evidentiary support for the recommended retraining, in light of the factors for consideration enumerated in Poole.  It argues that substantial evidence does not support the conclusion that retraining will result in reasonably attainable employment consistent with the employee's aptitude and interests or that it will produce an economic status as close as possible to that which the employee enjoyed prior to her disability.  More specifically, the employer contends that the labor market survey upon which QRC Peterson based his opinion is inadequate to support the plan, because the survey found primarily accounting-related jobs in the Winona labor market, whereas the employee testified that she does not want to work as an accountant and her vocational tests showed marginal aptitude and ability in math skills.  The employer contends further that the employee is essentially limited to one-handed work by her permanent restrictions, so accounting is not a physically suitable career for her.  We are not persuaded.

In concluding that the proposed retraining program was "academically appropriate" for the employee, the compensation judge accepted the opinion of QRC Peterson that the employee has already demonstrated an ability to do college-level work.  She noted that the employee was an honors graduate of the radiologic technician program at Western Wisconsin Technical College, a program that required her to take several math courses.  The judge concluded that the employee's life experiences carried more weight than the results of less than three hours of tests.  With regard to the employer's argument that jobs in accounting are not physically suitable for the employee, the judge noted that the employee hopes to use her business management/accounting training in other than specifically accounting work.  Moreover, she accepted QRC Peterson's opinion that, even if the employee did end up in an accounting position, the position would be primarily sedentary and consistent with her restrictions.  The judge noted further that the retraining program, contemplating as it does work also as a business manager, has been approved by Dr. McPherson.  With regard to the employee's labor market survey, the judge again adopted the opinions of QRC Peterson, concluding at Finding 30 that the employee satisfied her burden of proving the current and future availability of jobs in the proposed area of retraining.  The judge noted that QRC Peterson testified that, in addition to his labor market survey, he relied on information about national trends and projections regarding growth in specific job fields that have been released by the Minnesota Department of Employment and Economic Development.  QRC Peterson also evidently relied on statistics from Winona State's placement office, which revealed that, in this program, the school had a 96% placement rate in 2005.  QRC Peterson also relied on his personal knowledge about the Winona job market, based on his years of experience as a QRC in southeastern Minnesota.  Finally, the judge also accepted the QRC's testimony that the employee's long-term residence in Winona, with both personal and professional contacts, is likely to be an asset in looking for a job.  While Ms. Lowe, the employer's expert, disputed many of QRC Peterson's conclusions and raised concerns about the validity of his labor market survey, Ms. Lowe's concerns were only for the judge to weigh; they provide no justification for reversal.

It is clear to us that the judge considered the evidence in light of established case law factors, and she was entitled to accept the opinion of QRC Peterson over the opinion of Ms. Lowe.  See Nord v. City of Cook, 360 N.W.2d 337, 342-43, 37 W.C.D. 364, 372-73 (Minn. 1985).  Concluding that it was not unreasonable, we affirm the compensation judge's award of retraining benefits.  Hengemuhle, 358 N.W.2d at 59, 37 W.C.D. at 239.