JUNE 22, 2018

No. WC18-6130

REHABILITATION ‑ RETRAINING. Substantial evidence, including the expert opinion of the employee's QRC, supported the compensation judge's approval of the retraining plan. The compensation judge did not err as a matter of law in considering the employee’s potential for future earnings as well as her date of injury wage in assessing the employee’s proposed retraining plan.

    Determined by:
  1. Deborah K. Sundquist, Judge
  2. Patricia J. Milun, Chief Judge
  3. Gary M. Hall, Judge

Compensation Judge: William J. Marshall

Attorneys: Raymond R. Peterson, McCoy, Peterson & Jorstad, Ltd., Minneapolis, Minnesota, for the Respondent. Joshua M. Steinbrecher, Heacox, Hartman, Koshmrl, Cosgriff, Johnson, Lane & Feenstra, P.A., St. Paul, Minnesota, for the Appellants.




The employer and insurer appeal the compensation judge’s finding that the employee met her burden in proving entitlement to retraining. Where the employee worked as a paid intern while finishing her Bachelor’s Degree in Aquatic Biology at time of her injury, where the resulting disability restricted her from working in her intended career, where the employee’s job search did not result in sustained gainful employment, and where the employee made an affirmative showing of the factors under Poole v. Farmstead Foods,[1] the employee was entitled to retraining as a Medical Administrative Assistant. We affirm.


Kristine Markham, the employee, was in the final years of study towards a Bachelor’s Degree in Aquatic Biology when she took a job as a seasonal naturalist at Fort Snelling State Park through the Minnesota Department of Natural Resources (DNR), the employer. The job began on May 15, 2014, and was expected to last until sometime in October 2014. Described as an intern position, it paid $12.00 an hour, was a full-time position, and involved providing educational programs and activities to children and families visiting the park.

Shortly after she was hired, on May 20, 2014, the employee was carrying fishing bait to a van when her foot missed the curb causing her to twist her right ankle. Diagnosed with an ankle sprain, the employee was initially sent to physical therapy. When the ankle failed to improve, the employee saw Sharilyn Moore, D.P.M., and underwent surgery to repair ligament and tendon tears with fixation in October 2014. She did not improve as expected, having developed an allergic reaction to the hardware. She underwent a second surgery to remove the hardware in February 2015. The employee continued to experience significant symptoms and was diagnosed by Dr. Moore with Chronic Regional Pain Syndrome (CRPS) as a result of the right ankle injury.

Despite having attention deficit disorder, the employee attained two associate’s degrees, in natural resources and geographic information systems, and completed a Bachelor of Science degree in aquatic biology in December 2014. With her degrees and work experience, the employee had planned to find work as a fisheries specialist with the DNR following her graduation. The average salary for a fisheries specialist paid between $19.29 and $27.98 an hour (full-time work would equate to a salary range between $771.60 and $1,119.20 per week). Having worked as a seasonal fisheries specialist, she knew the extent of the physical activity required. She testified that the restrictions associated with her work injury rendered her physically unable to perform the tasks required for a job in her intended career. Due to the CRPS in the right foot, she had difficulty standing on uneven surfaces, making it difficult to stand in a fishing boat or navigate sandy and marshy areas. Furthermore, she would no longer be able to lift 50 pounds of fish out of the water. She was restricted by Dr. Moore to lift no more than 15 pounds in a sedentary position allowing her to change positions frequently. The employee was referred for treatment of her CRPS to Terri Allen, CNP, at Courage Kenny.

The self-insured employer admitted liability and paid medical, wage loss and vocational rehabilitation benefits. The employer retained Paul Biewen, M.D. to examine the employee on May 2, 2016. In his report of May 17, 2016, Dr. Biewen agreed with the diagnosis of CRPS and also recommended lifting and position changing restrictions.

The employee began a job search with the help of her QRC, Amy Scherbring, and a job placement vendor. The job search took place between November 2014 and the summer of 2016. The employee conducted an extensive search and supplied job logs. Between November 4, 2015, and July 25, 2016, the employee submitted 230 job logs documenting her activities and attended approximately 11 interviews. After that date, the employee submitted an additional 92 job logs which included 12 calls, 246 applications, 174 follow up calls, 35 in person visits, and 18 interviews. The employee received a total of 39 weeks of job development through vocational rehabilitation. (Ex. E1).

The employee ultimately found two jobs. The first was an educational assistant/paraprofessional position at the Academy of Sciences and Agriculture which began in September 2015 and paid $13.00 an hour. The employee was physically able to handle the job, but she was terminated three months later because the position was not a good fit for her. Thereafter, she engaged in further job search and job placement services from October 2016 through November 2016. She found another job within her restrictions in January 2017 as a part-time front desk attendant at a hotel near her home. This job paid $10.50 an hour for 32 hours a week. The QRC testified that the employee was cooperating with vocational rehabilitation.

In July 2016, the QRC began looking into the possibility of retraining for the employee. The employee underwent multiple vocational and intelligence tests to define the employee’s areas of interest and academic ability. Ultimately, the QRC proposed a plan to retrain the employee for work in the field of medical administration. A labor market survey was conducted to determine the expected salary and whether jobs would be available once the employee completed the retraining. CNP Allen approved the retraining as within the employee’s physical abilities. The retraining plan contemplated the employee attending Hennepin Technical College for four semesters to obtain an A.A.S. degree as a medical administrative assistant. The labor market survey showed that positions in the field start at $13.00 to $17.00 an hour ($520 to $680 per week) and that employees in the field earned a median wage of $18.00 an hour. The retraining plan was filed on June 19, 2017, and reflected an expected cost of $14,193.74.

The employer and insurer retained Jan Lowe as an independent vocational expert to determine if the proposed retraining plan was reasonable. Ms. Lowe used an average weekly wage of $480.00 based on the employee’s intern job at the DNR as the wage goal for vocational rehabilitation. In Ms. Lowe’s report of September 13, 2017, she opined that the employee’s claim for retraining was not reasonable or necessary. She explained that the employee could easily achieve her preinjury wage of $480.00 through full-time work as a hotel clerk, a field in which the median wage is $12.42 an hour. She recommended that the employee enroll in basic office courses to assist her to find a job within her restrictions.

The matter was heard on October 12, 2017. In addition to the retraining claim, the employee also made a claim for payment of medical expenses which the self-insured employer had denied as not reasonable and necessary. The employee and the QRC testified at the hearing. The employer relied on documentary evidence. The judge found that the employee’s medical expenses were reasonable and necessary. He further found that the employee was entitled to the proposed retraining plan. The self-insured employer appeals the finding that the employee was entitled to retraining.


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 self-insured employer argues that the compensation judge erred as a matter of law in awarding retraining benefits contending that he based the award on providing the employee with a speculative earning capacity based on what she might have been able to earn in a field for which she was studying, but in which she had never worked. The employer maintains that the judge should have considered only the $480.00 a week wage the employee earned while an intern at the DNR, and should not have taken into account her potential for future earnings as a fisheries specialist.

In support of its position, the employer cites Jellum v. McGough Constr. Co., Inc., 479 N.W.2d 718, 46 W.C.D. 182 (Minn. 1992) and Stadick v. United Parcel Service, 47 W.C.D. 9 (1992). In Jellum, the supreme court held that an employee’s average weekly wage on the date of injury controls the calculation of an injured employee’s wage loss benefits, and that higher wages an employee might have anticipated in the future are too speculative to be used in calculating the employee’s benefit rate.

In Stadick, this court affirmed a compensation judge’s denial of a retraining plan, concluding that substantial evidence supported the compensation judge's finding that the proposed retraining program would exceed the employee's pre-injury economic status, was not necessary to increase the employee's employability and would not result in reasonably attainable employment. One of the factors considered in that case was the employee’s contention that, although she was working part time at $6.11 per hour at the time of the injury, had she not sustained knee injuries, she might eventually have been promoted to a different full-time position with the employer earning $16.00 per hour. The compensation judge found that the possibility of a promotion was too speculative under the facts of the case to require retraining to a position which would result in employment at a rate similar to a full-time $16.00 per hour job. In affirming the judge’s determination, we cited Jellum as providing some support for the principle that “the average weekly wage on the date of injury controls and the wages the employee expected to earn in the future are speculative and cannot be used to determine the employee’s benefit rate.”

Siltman v. Partridge River, Inc., 523 N.W.2d 491, 51 W.C.D. 282 (Minn. 1994), involved an employee who was training for a career as a millwright but had not worked in that capacity and was injured in lower-paying employment. We affirmed the compensation judge’s finding that the employee was entitled to further rehabilitation services, including possible retraining, but reversed a finding that the employee's rehabilitation/retraining plan should be based on "an expected earning capacity of $11.00 as a millwright or maintenance mechanic." Citing Jellum, we extended that holding to the assessment of retraining and concluded that retraining should be assessed by its ability to restore the employee to the wage received on the date of injury, rather than the potential $11.00 per hour wage the employee might command as a millwright.

The supreme court reversed and reinstated the judge’s finding that the potential earnings as a millwright be considered in developing a retraining plan. The court noted that retraining may be necessary if it “will be likely to restore impaired capacity to earn a livelihood; and earning capacity may be impaired if the employee’s injury prevents him or her from returning to the former employment or from securing advancement in that employment.”[2] Siltman, 523 N.W.2d at 492 (Minn. 1994) (emphasis added). The court further cited Minn. Stat. § 176.102, subd. 1, which provides that rehabilitation “to a job with a higher economic status than would have occurred without disability is permitted if it can be demonstrated that this rehabilitation is necessary to increase the likelihood of employment. Economic status is to be measured not only by opportunity for immediate income but also by opportunity for future income.” Finally, the supreme court held that “[a]rguments based on Jellum, a case concerning the calculation of wage loss benefits, are inapposite here.” Id.

Based on the supreme court’s analysis in Siltman, we conclude that the compensation judge did not err as a matter of law in considering the employee’s potential wage as a fisheries specialist when assessing whether the employee had an impaired earning capacity as a result of the work injury.

In determining eligibility for retraining, we have traditionally looked to what are commonly referred to as the Poole[3] factors. Those factors include: (1) the reasonableness of retraining compared to returning the employee to work with the employer or through 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 would result in reasonably attainable employment; and (4) the likelihood that retraining would produce an economic status as close as possible to that which the employee would have enjoyed without the disability. The application of the Poole factors is an issue of fact which must be supported by substantial evidence. See Anderson v. Mechanical Contractors, slip op. (W.C.C.A. Oct. 19, 1999).

The employer argues that the judge did not fully consider the Poole factors in granting retraining, as there was no specific discussion of them in the judge’s findings or memorandum. We agree that that the judge failed to specifically outline each of the Poole factors in his award. While it might have been preferable for the compensation judge to have done so, we note that the Poole factors were thoroughly addressed through vocational testimony, rehabilitation reports and medical records included in the hearing record. The judge expressly adopted the expert opinion of the employee’s QRC, Ms. Scherbring. It is clear that the judge considered the evidence in light of established case law factors, and he was entitled to accept the opinion of QRC Scherbring over the opinion of the employer and insurer’s vocational expert, Ms. Lowe. See, e.g., Nord v. City of Cook, 360 N.W.2d 337, 37 W.C.D. 364 (Minn. 1985).

The record as a whole supports the compensation judge’s determination in light of the Poole factors. First, it appears that retraining was a reasonable option to return the employee to work. It is undisputed that the employee’s restrictions preclude her from returning to her pre-injury job with the employer; neither has the employer offered her alternative employment within her restrictions. After a protracted and diligent job search, the employee has been able only to obtain and continue in a part-time job as a hotel clerk paying $10.50 an hour, 32 hours a week. The job paid less than the employee’s pre-injury job as a summer intern. Although the employee had initially found a job that exceeded her pre-injury wage, the QRC testified that the job was not a good fit for her as she was terminated three months later. Second, it appears likely that the employee would succeed in a formal course of study given her abilities and interests. The QRC testified that the employee’s prior educational successes make it likely that she will succeed in the proposed course of study, and that her physical restrictions would not be an impediment to completing the program. Finally, it appears likely that retraining will produce both reasonably attainable employment and an economic status as close as possible to that which she would have enjoyed without the disability. A labor market survey indicated that work was available for medical administrative assistants and that the proposed retraining plan would allow the employee to enter a field with starting wages that approximate, if not exceed, her date of injury wage and offer increased earning potential.

Arguing that the QRC improperly used an imputed wage in proposing the retraining plan, the employer maintains that the compensation judge should have disregarded the QRC’s opinion. Much of the employer’s argument rests on the QRC’s consideration of the employee’s loss of potential earning capacity based on her intended career as a fisheries specialist. We have already addressed above the employer’s argument that the consideration of the employee’s future earning capacity was error, and rejected it. We note, further, that it is clear from the QRC’s report that, while she considered the employee’s potential for future earnings, she also considered the pre-injury wage in assessing the employee’s need for retraining. The QRC concluded that the proposed plan “would allow [the employee] to enter a field with starting wages that approximate, if not exceed her date of injury wage and offer increased earning potential.” (Ex. 5).

Finally, the employer argues that the employee has several degrees and should be able to secure a job at her wage on the date of injury without retraining. The employee’s QRC noted, however, that the employee’s education was very specific to jobs which are mostly outside her physical restrictions. The employee’s job search has failed to provide her with such a position. Based upon the rehabilitation reports and other vocational evidence in the record, the employee’s testimony, and the testimony provided by both the employee’s QRC and the employer and insurer’s vocational expert, we conclude that substantial evidence supports the compensation judge’s determination that the employee is eligible for the claimed retraining benefits. As previously stated, the propriety of a proposed retraining plan is a fact issue for the compensation judge. See Anderson v. Metropolitan Mechanical Contractors, slip op. (W.C.C.A. Oct. 19, 1999). As substantial evidence in the record supports the compensation judge’s decision, we affirm.

[1] See Poole v. Farmstead Foods, 42 W.C.D. 970 (W.C.C.A. 1985).

[2] Citing Leahy v. St. Mary’s Hosp., 339 N.W.2d 265, 268 (Minn. 1983).

[3] Poole v. Farmstead Foods, 42 W.C.D. 970 (W.C.C.A. 1985).