PETER DAHL, Employee/Respondent, v. RICE CNTY. and MINN. COUNTIES INTERGOVERNMENTAL TRUST, Employer-Insurer/Appellants.

The employer and insurer appeal the compensation judge’s award of the proposed retraining program. We affirm.

The employee, Peter Dahl, was employed by Rice County as a deputy sheriff from 1992 until 2006. His average weekly wage was $1,168.53. During the course of his employment, the employee suffered four admitted work injuries which ultimately resulted in a permanent low back condition.^[1] His employment with Rice County ended because his work restrictions could not be accommodated.

The employee underwent extensive treatment for his work injuries, including two low back fusion surgeries in 2006 and 2009. He is subject to permanent restrictions related to his low back condition, which are based upon a functional capacity evaluation conducted in 2013. According to the FCE report, the employee is able to work within a light physical demand level, requires opportunities to stand and move about with limitations of sitting for one-hour intervals for four hours per day and stationary standing for ten-minute intervals for four hours per day, and is limited to lifting up to 60 pounds at waist level on a seldom basis and 50 pounds occasionally.

The employee began working with QRC Frank Samlaska in 2006 after his employment with Rice County ended. Since that time, and over the course of numerous employment positions, relocations, personal and familial issues, and physical and mental health concerns, the employee’s level of contact and cooperation with QRC Samlaska fluctuated and their working relationship was strained at times. The employee acquired a number of job leads since his employment with Rice County, both on his own and with the assistance of QRC Samlaska. Some of those leads led to extended periods of employment. It is documented that the employee was engaged in job search, but at no time did the employee submit job logs.

With regard to his job search and employment history since 2006, the employee has held a number of positions. Some paid well and others did not. Some required extended driving and other activities beyond the employee’s physical restrictions. And, some required knowledge and skills beyond the employee’s capabilities, including issues with computer proficiency.

In 2007, the employee obtained a position at Glock, a weapons manufacturer, as a District Manager for Law Enforcement. He earned an annual salary of $50,000.00. This employment ended in April 2008. Two months later, and from 2008 to 2010, the employee worked for Blackhawk as a Special Operations Regional Manager, providing training and equipment demonstrations for law enforcement and military personnel. In this position, the employee earned a $70,000.00 annual base salary with a bonus potential of up to $30,000.00. Then, for a few months in 2011, the employee was employed by KEEPRS in law enforcement sales, with an annual base salary of $40,000.00, plus commission.

More recently, the employee has worked in a number of part-time or seasonal positions. For two years, the employee worked in facility maintenance at Faribault Ice Arena and at Shattuck-Saint Mary’s. These positions were part-time and both paid an hourly wage of $10.00. The employee has also held short-term and seasonal positions at various tree care companies.

In addition to the employment positions outlined, the employee has taught at Dakota County Technical and Community College as an adjunct contractor since 2002. He estimated that, over the course of a year, he teaches approximately 25 days and earns $5,000.00-6,000.00. He testified to having earned as much as $10,000.00 in a year, as well.

In the spring of 2016, QRC Samlaska developed a retraining proposal for the employee to obtain a three-year teaching degree at the University of Mankato, with an occupational goal of high school teacher. The employer and insurer objected to the retraining proposal. Following an administrative conference and decision denying the retraining proposal, both the employee and the employer and insurer filed requests for formal hearing. Those requests were consolidated and the matter was ultimately set for hearing. In the meantime, amendments were made to the initial retraining proposal, including a revised goal to obtain a master’s degree in law enforcement to qualify the employee to be an instructor at the community college level, and later a revised goal to become a post-secondary criminal justice and law enforcement teacher. It was the initial proposal for a bachelor’s degree in education and to become a high school teacher that was ultimately presented to, and considered by, the compensation judge.

QRC Samlaska offered testimony to support his proposed retraining plan. He opined that the employee’s injuries at Rice County, current low back condition, and permanent physical restrictions, resulted in a diminution of earning capacity. Without the ability to return to work as a law enforcement officer, QRC Samlaska believed that the teaching profession best used the employee’s acquired skills and interests, was within his physical restrictions, and would likely restore him to an economic status similar to what he would have enjoyed before his injuries. It was QRC Samlaska’s opinion that further job placement or skills enhancement would not be appropriate. He believed the employee would succeed in the retraining plan and, based upon a labor market survey and employment projections, the employee was likely to be hired following the retraining.

QRC Samlaska testified that though he has not seen job logs, job search efforts were made and were reasonable, and that after eleven years of job placement services, retraining is appropriate. He testified that, with respect to a diligent job search, the employee was seeking employment, submitting applications, being interviewed, and that he had seen the employee’s job search notes during face-to-face meetings. QRC Samlaska emphasized the fact that the employee had obtained employment over the course of those eleven years demonstrated that the employee was, in fact, performing a job search. He acknowledged that in working with the employee over so many years, he had become frustrated at times with the employee’s lack of job logs. Despite this, however, it was QRC Samlaska’s opinion that the employee had reasonably cooperated with rehabilitation and that there was no barrier to retraining in this regard.

In addition to the opinions of QRC Samlaska, the employee also relied upon the opinions of retained independent vocational examiner, Ken Askew. Mr. Askew prepared a report dated October 25, 2016, and testified at the hearing before the compensation judge. It was Mr. Askew’s opinion that the employee is an appropriate retraining candidate and that the proposed retraining plan meets the Poole^[2] factors. Specifically, Mr. Askew testified that retraining was reasonable compared to other rehabilitation methods including job search, because the employee has made a good faith effort and has not been successful. He believed the employee will be successful and that retraining will likely result in employment considering the employee’s work ethic, motivation, teaching experience, vocational testing results, and the high demand in the teaching profession. It was Mr. Askew’s opinion that the retraining plan is likely to restore the employee’s economic status.

The employer and insurer retained independent vocational examiner, Kate Schrot. Ms. Schrot authored two reports dated August 25, 2016, and November 1, 2016. Ms. Schrot was deposed following the hearing and the transcript of her testimony was submitted into evidence. In her opinion, the proposed retraining plan is not viable because, while the employee is capable of completing the program and teaching is within his physical restrictions, Ms. Schrot did not believe there are an adequate number of positions open that would interest the employee, and she was concerned that he expected to teach a law enforcement related subject, which she considered unrealistic. She also expressed concern that a teaching position would not necessarily restore the employee’s economic status. It was Ms. Schrot’s opinion that the employee’s job search was not diligent and that the employee did not fully cooperate with rehabilitation.

The employee’s claim seeking approval of the proposed retraining plan came on for hearing before Compensation Judge Adam Wolkoff on March 30, 2017. At the outset of the hearing, the employee clarified that he was claiming the retraining proposal set forth in his initial request in the spring of 2016 for a teaching degree with the goal of becoming a high school teacher, and withdrew the subsequent amendments to that plan. The employer and insurer agreed to proceed. Voluminous records were submitted into evidence, and testimony was taken of the employee and Mr. Askew. A short lunch recess was taken and a discussion was had off the record that QRC Samlaska may have job logs and other records in his file that the parties had not seen. On the record, counsel for the employer and insurer objected to the admission of the documents and requested that the hearing proceed. The judge concluded that the evidence should be considered, but that it would be prejudicial to ask the employer and insurer to quickly review the evidence and continue with the hearing that day. With that, the judge set a second hearing date and explained to the parties that there would be no live testimony or argument on that date. Rather, the judge instructed the parties to submit into evidence the records identified by QRC Samlaska, the deposition testimony of QRC Samlaska, the deposition testimony of Ms. Schrot, and the deposition testimony of the employee, should the employer and insurer decide to depose him. The judge also requested written closing arguments.

Following the compensation judge’s description of the process moving forward, counsel for both parties indicated their understanding. Counsel for the employer and insurer clarified that he may choose to submit a supplemental report from Ms. Schrot, rather than taking her deposition, and that QRC Samlaska would be deposed first. Counsel for employee was instructed that should the issue of whether he wanted to depose Ms. Schrot in the event of the submission of a supplemental report in lieu of a deposition arise, a special term conference could be held. The compensation judge acknowledged that this process was unconventional but fair. No objection to the process was put on the record, other than these points of clarification.

The record in this matter closed on May 30, 2017, with the submission of additional evidence, including the deposition transcripts of QRC Samlaska and Ms. Schrot. By Findings and Order dated June 30, 2017, the compensation judge concluded, upon application of the Poole factors, that the employee is a candidate for retraining as a high school teacher, and that the proposed retraining plan to obtain a teaching degree with the goal being employment as a high school teacher, constitutes a reasonable retraining plan. The employer and insurer 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(3). 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 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).

A decision which rests upon the application of a statute or rule to essentially undisputed facts generally involves a question of law which the Workers’ Compensation Court of Appeals may consider de novo. Krovchuk v. Koch Oil Refinery, 48 W.C.D. 607, 608 (W.C.C.A. 1993), summarily aff’d (Minn. June 3, 1993).

The employer and insurer assert a number of arguments on appeal. They argue that the compensation judge’s determinations that the employee is a proper candidate for retraining and that the proposed retraining plan is reasonable, are not supported by substantial evidence. The employer and insurer also allege procedural errors committed by the compensation judge.

The employer and insurer argue that the compensation judge erred in awarding the proposed retraining plan. The goal of rehabilitation is to return the employee as closely as possible to the economic status he would have enjoyed if not for the injury. An employee is entitled to rehabilitation services if he is likely to be precluded from engaging in his pre-injury occupation and can reasonably be expected to benefit from rehabilitation services “which could significantly reduce or eliminate the decrease in employability.” Wilson v. Crown Cork & Seal, 503 N.W.2d 472, 475, 49 W.C.D. 51, 54 (Minn. 1993); Minn. Stat. § 176.102, subd. 1(b). Cases involving a claim for retraining are generally analyzed under the four Poole factors. Those factors are: (1) the reasonableness of retraining compared to other job placement activities; (2) the likelihood that retraining will produce an economic status as close as possible to that which the employee would have enjoyed without the disability; (3) whether retraining is likely to result in reasonably attainable employment; and (4) the likelihood of success in the program. On appeal, the employer and insurer do not dispute whether retraining is likely to result in reasonably attainable employment. They contend, rather, that the compensation judge’s findings as to the remaining three factors are not supported by substantial evidence. We disagree.

First, the employer and insurer argue that the employee’s eleven-year job search was deficient, and as a result, it cannot be said that retraining was preferable to continued job search. In particular, the employer and insurer insist that without job logs, there is no evidence that the employee’s cooperation with rehabilitation was reasonable, or that the employee conducted a diligent job search. They also assert that the compensation judge’s reliance on the opinions of QRC Samlaska and Mr. Askew was improper because they disqualified their own opinions.

In his decision, the compensation judge acknowledged that the employee’s job search activities were not perfect. We note that a diligent job search is not necessarily required for retraining. Fisher v. Jim Lupient Auto Mall, ___ W.C.D. ___ (W.C.C.A. 2017), summarily aff’d (Minn. Nov. 8, 2017). The evidence in the record demonstrates that the employee did not submit job logs to document his job search activities. A well-documented job search may be preferred in the typical retraining case; however, there is no legal requirement that an employee complete and submit job logs, nor would such an expectation be reasonable in this case. The evidence in the record details numerous employment positions the employee sought and obtained over the course of eleven years, some of which were long term. The evidence in the record also reflects lengthy periods of time during which the employee was dealing with medical and mental health issues, familial issues, and an out-of-state relocation. QRC Samlaska testified, as did the employee, that there was not a constant level of participation and cooperation over the many years, but that overall and under the circumstances, the employee had sufficiently cooperated with rehabilitation.

In concluding that the employee’s job search and efforts were reasonable and diligent, the compensation judge relied, in part, on the testimony and opinions of QRC Samlaska and Mr. Askew. The employer and insurer assert that such reliance was in error, alleging the two witnesses disqualified their opinions by their testimony.

With respect to QRC Samlaska, the employer and insurer point to testimony where he acknowledged that the employee had not submitted job logs, and where he acknowledged that he did not know whether the employee had followed up on the majority of job leads he had been provided. Contrary to the position taken by the employer and insurer, these two statements made by QRC Samlaska, when read in the context of his entire testimony, do not undermine his credibility or opinions. The records and testimony of QRC Samlaska show that overall, and during the relevant time periods, QRC Samlaska was aware of the employee’s vocational activities and was providing assistance to the employee. As the QRC working with the employee for eleven years, QRC Samlaska had sufficient foundation to render an opinion regarding cooperation with rehabilitation.

With respect to Mr. Askew, the employer and insurer point to his testimony that he had not reviewed the records to determine whether the employee had adequately cooperated with rehabilitation. According to Mr. Askew’s testimony, however, he heard the employee testify, wherein he had acknowledged there were periods of time that he was not in communication with his QRC. Mr. Askew also testified to recalling a discussion he had had with the employee regarding effort and cooperation. Mr. Askew reviewed QRC Samlaska’s records, as reflected in his testimony, his report, and the foundation letter to Mr. Askew from employee’s counsel. This level of knowledge and familiarity with the employee and his case provides sufficient foundation for Mr. Askew’s opinions. The compensation judge’s reliance on QRC Samlaska and Mr. Askew was not in error.

Whether an employee conducts a reasonably diligent job search is a question of fact for the compensation judge. Hanmer v. Wes Barrette Masonry, 403 N.W.2d 839, 841, 39 W.C.D. 758, 761 (Minn. 1987), citing McClish v. Pan-O-Gold Baking Co., 336 N.W.2d 538, 36 W.C.D. 133 (Minn. 1983). Substantial evidence supports the compensation judge’s findings related to the first Poole factor, and this court will not second guess his factual determinations. See Drinkwine v. Randall Bros. Heating, slip op. (W.C.C.A. Jun. 10, 2004).

Second, the employer and insurer contend that the employee failed to establish a likelihood that he would succeed in the program. The compensation judge found that there is no persuasive evidence to suggest that the employee is unlikely to succeed. He rejected some of the elements identified by the employer and insurer on appeal, including ADHD. In addition, the employer and insurer suggest that other mental health issues, lack of commitment, and deficient computer skills are barriers to the employee’s success. The compensation judge considered the employee’s vocational testing results, the opinions of QRC Samlaska and Mr. Askew, the opinion of Ms. Schrot expressed in her report, and the credible testimony of the employee, to weigh in support of this factor. Substantial evidence in the record supports the compensation judge’s finding that the employee has the ability to succeed in the program.

And third, the employer and insurer argue that the employee did not establish that the proposed retraining plan to become a teacher is likely to restore the employee’s economic status. They base this argument on the fact that the employee earned high wages in sales positions after his employment ended with Rice County, and that the employee’s interest in forestry have not been sufficiently explored. The compensation judge, in his supporting memorandum, explicitly rejected these arguments of the employer and insurer on the basis that proposed alternatives are unreasonable and are irrelevant to the analysis of whether the proposed retraining plan will place the employee in an economic status as close as possible to what he would have enjoyed if not for his work injuries. We agree with the compensation judge’s approach, and note that an employee is not necessarily required to exhaust all other possibilities before pursuing retraining. See Wilson, 503 N.W.2d at 475, 49 W.C.D. at 54. Substantial evidence in the record, including the well-founded opinions of QRC Samlaska and Mr. Askew, support the compensation judge’s finding on this Poole factor.

Whether retraining is appropriate is a fact question for determination by a compensation judge. Drouillard v. St. Mary’s Med. Ctr., 63 W.C.D. 671, 675 (W.C.C.A. 2003) (citing Norby v. Arctic Enters., 232 N.W.2d 773, 775, 28 W.C.D. 48, at 50 (Minn. 1975)). A retraining case is to be analyzed on its own facts. Ascher v. Bill Dentigner, Inc., slip op. (W.C.C.A. May 23, 2001) (internal citations omitted). Based upon our review of the record as a whole, including the records, reports, and testimony of QRC Samlaska, the report and testimony of Mr. Askew, and the testimony of the employee, we affirm the compensation judge’s award of the proposed retraining plan.

The employer and insurer argue that the compensation judge committed procedural errors of law that resulted in prejudice. Specifically, they contest the compensation judge’s admission into evidence the records of QRC Samlaska that were first disclosed during the hearing, and the compensation judge’s continuation of the hearing and consideration of the employer and insurer’s expert witness by deposition, rather than live, testimony.

In general, evidentiary rulings are within the sound discretion of the compensation judge. Cici v. Methodist Hosp., 63 W.C.D. 421, 426 (W.C.C.A. 2003). The compensation judge admitted into evidence vocational records over the objection of the employer and insurer. There can be no question that the vocational records at issue are relevant to the employee’s claim. The inclusion of evidence is favored in workers’ compensation proceedings. Scalf v. LaSalle Convalescent Home/Beverly Enters., 481 N.W.2d 364, 366, 46 W.C.D. 283, 286 (Minn. 1992) (“the purpose of [a workers’ compensation] proceeding is disclosure of the true facts, a purpose better served by acceptance of all competent, relevant, and material evidence”). The compensation judge’s admission of these records was not an abuse of discretion.

The employer and insurer also argue that the measures taken by the compensation judge to allow for the employer and insurer to review and rebut the new evidence resulted in prejudice. Review of the hearing transcript illustrates the care taken by the compensation judge to provide a level playing field in light of the discovery of previously undisclosed relevant evidence. The compensation judge expressed concern about fairness to the employer and insurer and proceeded in a fashion that he reasonably believed would provide the parties the best opportunity to fully consider the evidence, and for the employer and insurer to rebut the evidence. It is clear that considerable discussion regarding how the parties would proceed was had off the record. This court’s review is limited to what is contained in the record. On the record, there was no objection made by the employer and insurer with regard to ending the live hearing and the submission of deposition testimony of a later witness in lieu of live testimony before the judge. Furthermore, the employer and insurer’s characterization of an unlevel playing field having been created because the employee’s witnesses testified live while the employer and insurer’s witness testified by transcript, fails to appreciate the fact that testimony of one of the employee’s witnesses, QRC Samlaska, was also submitted by transcript.

Under these circumstances, we do not believe the actions taken by the compensation judge rise to the level of an abuse of discretion. We conclude that the compensation judge’s evidentiary ruling and how he conducted the hearing were consistent with Minn. Stat. § 176.411 and applicable procedural rules. Accordingly, we see no basis for reversal or remand on this issue.