BRIAN DILLEY, Employee/Respondent, v. CARVER CNTY., and MINN. COUNTIES INS. TR., Employer-Insurer/Appellants.

The employer and insurer appeal the compensation judge’s award of weekly retraining benefits beyond 156 weeks under Minn. Stat. § 176.102, subd. 11.  Because the statutory language limits retraining benefits to 156 weeks, we reverse the award beyond that limit.  Any benefits paid by the employer and insurer beyond the 156 weeks were paid under mistake in fact or law, and we reverse the compensation judge’s finding to the contrary.  We affirm the compensation judge’s finding that the employee is entitled to temporary total disability benefits for 90 days after the end of the retraining plan pursuant to Minn. Stat. § 176.102, subd. 11(b).

Brian Dilley, the employee, worked as a deputy sheriff for Carver County, the employer.  The job duties varied and were physically demanding.  On July 14, 2005, the employee injured his low back at work.  He was diagnosed with a disc herniation and subsequently underwent two surgeries.  Years later, on September 27, 2015, he suffered another work-related low back injury when rescuing a missing teenager, whose body he dragged through mud and cattails to administer CPR.  This injury required more surgeries and led to permanent restrictions, including no further work as a deputy sheriff.  The employee sought vocational rehabilitation and ultimately retraining. The parties agreed on a three-year retraining plan for the employee to obtain a Bachelor of Science degree in cyber security so as to secure suitable employment.  On September 13, 2018, the retraining plan was approved.

The employee began online classes on October 1, 2018, but had low back pain which made it difficult to participate in the retraining coursework.  Due to the severity of symptoms, the employee’s orthopedic surgeon recommended revision surgery.  The employee underwent surgery on August 19, 2019.  He took a medical leave during the summer term starting July 10, 2019, and returned to his course work on January 6, 2020.  During this span of 25.6 weeks, the employee was neither in retraining classes nor working.  The employer and insurer accordingly filed a Notice of Intent to Discontinue (NOID) seeking to discontinue ongoing weekly retraining benefits on December 13, 2019.  Following the employee’s objection to the discontinuance, the employer and insurer reinstated benefits.

On October 5, 2021, the employer and insurer filed another NOID to discontinue temporary total disability (TTD) benefits and retraining benefits, asserting that the statutory maximum of 156 weeks of retraining benefits were paid.  They included in the 156-week period the 25.6 weeks of benefits they paid when the employee was not in school and was deemed not entitled to TTD benefits.  The employee objected to discontinuance, arguing that the 25.6 weeks of benefits paid while the employee was on medical leave should be excluded from  the 156-week limit because the employee was, at that time, not actively in retraining.  Following an administrative conference pursuant to Minn. Stat. § 176.239, the compensation judge denied the request to discontinue benefits reasoning that the employee was still enrolled in the retraining program and that cessation of benefits would run counter to the purpose of retraining.  The judge also concluded that the employee was not entitled to recommencement of TTD benefits and suggested that the employer and insurer would be entitled to a partial credit against future benefits under Minn. Stat. § 176.179.^[1]

On April 8, 2022, the employer and insurer filed another NOID seeking to discontinue retraining benefits because 156 weeks in retraining benefits had been paid and the employee had graduated with two degrees, an associate degree in network systems administration and a bachelor’s degree in cyber security.  There was no objection to this discontinuance.

The employer and insurer calculated that, while the employee was on medical leave from the retraining program for surgery, they paid 25.6 weeks of retraining benefits from July 10, 2019, to January 5, 2020, overpaying retraining benefits by $25,883.69.  (Exs. 1 and 8.)  The employee offered no evidence refuting the amount he was paid during that period.

Having obtained his degrees, the employee began to search for work.  His QRC offered vocational job placement services to assist in job search, but the employee declined and instead looked for work on his own.  On August 15, 2022, he took a job driving a garbage truck at Waste Management, where he had previously worked, earning less than his pre-injury wage.  In light of the employee’s retraining in a skilled technical field, the employer and insurer claimed that the employee did not conduct a diligent job search, had effectively removed himself from the labor market, and was not entitled to TTD benefits at the end of retraining.

On June 21, 2022, the employee filed a claim petition requesting TTD benefits for up to 90 days after the end of his retraining plan pursuant to Minn. Stat. § 176.102, subd. 11(b) and up to 25 percent more retraining benefits, extending 156 weeks to include the weeks the employee was on medical leave under Minn. Stat. § 176.102, subd. 11(a).  (T. 20.)

The employer and insurer retained a vocational expert, who opined that the employee’s garbage truck driving job was suitable employment because he could perform the job within his restrictions and there was a potential of transitioning to an information technology job with the company.  The employee continued to work at a wage loss as a garbage truck driver through the date of hearing.

The matter went to hearing on August 16, 2023, to address whether the employee was entitled to retraining benefits during medical leave from July 10, 2019, to January 5, 2020, and whether the benefits paid during the period were paid under mistake in fact or whether the employee was entitled to TTD benefits during that period.  Also at issue was whether the employee was temporarily and totally disabled from March 31, 2022, to June 16, 2022, whether he withdrew from the labor market and failed to conduct a diligent job search, and whether TTD benefits should end 90 days following retraining.  The compensation judge found that the employee was entitled to retraining benefits from July 10, 2019, to January 5, 2020, effectively extending retraining benefits beyond 156 weeks.  She further found that the employer and insurer’s benefit payments from July 10, 2019, to January 5, 2020, were not made under a mistake in fact.  Finally, she found that the employee was entitled to TTD benefits for 90 days after the end of the 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 appellants argue that the judge erred as a matter of law in finding that the employee was entitled to 25.6 weeks of retraining benefits from July 10, 2019, to January 5, 2020, because it had the effect of exceeding the 156-week limit prescribed by Minn. Stat. § 176.102, subd. 11(a).  That section provides:

How this limitation of  retraining benefits to 156 weeks applies to the facts of this case involves a legal question of statutory interpretation, and we review the issue de novo. 

In interpreting the meaning of a statute, we must first look to its plain language.  See Shire v. Rosemount, Inc., 875 N.W.2d 289, 292, 76 W.C.D. 173, 176 (Minn. 2016); see also ILHC of Eagan, LLC v. Cnty. of Dakota, 693 N.W.2d 412, 419 (Minn. 2005).  Here, the statutory language, “retraining is limited to 156 weeks,” could not be more clear.  The statutory language does not provide for an extension of retraining benefits beyond the 156 weeks.  The employee argues that the next sentence, which allows the employee to petition for “additional compensation not to exceed 25 percent of the compensation otherwise payable,” permits extending the duration of rehabilitation by 25 percent, which would effectuate an increase from 156 weeks to 195 weeks.  We are not persuaded.

This court and the Minnesota Supreme Court have long interpreted  “compensation” to mean monetary benefits directly paid to the employee.  Granberg v. PCL Constr., 434 N.W.2d 467, 41 W.C.D. 565 (Minn. 1989); Sherman v. Whirlpool Corp., 386 N.W.2d 221, 38 W.C.D. 585 (Minn. 1986).  An additional 25 percent in compensation would therefore allow an increase in the monetary benefit amount, rather than the duration of a retraining plan.  The evolution of the retraining statute from 1967 to the present also supports this conclusion.  In 1967, the legislature provided for payment of concurrent TTD and monetary retraining benefits for a duration of 104 weeks.  Minn. Stat. § 176.101, subd. 8 (1967).  In 1975, the duration of benefits was extended to a maximum of 156 weeks.  Minn. Stat. § 176.101, subd. 9 (1975).  The same duration of up to 156 weeks of retraining benefits was adopted in 1979, but in an amount equal to 125 percent of the TTD rate.  Minn. Stat. § 176.102, subd. 11 (1979).  In 1983, the statute was amended again.  The compensation amount of 125 percent was repealed, and the legislature substituted the language providing a right of the employee to petition for additional compensation not to exceed 25 percent of the compensation otherwise payable.  Retraining was expressly limited to 156 weeks.  Minn. Stat. § 176.102, subd. 11 (1984).

The compensation judge found that the employee was entitled to retraining benefits from July 10, 2019, through January 5, 2020.  She further found that the employer and insurer’s payment of benefits from July 10, 2019, through January 5, 2020, was not made under a mistake in fact.  She ordered the appellants to pay retraining benefits to the employee for the 25.6-week period from July 10, 2019, through January 5, 2020, when the employee was not actively participating in the retraining plan.  However, the judge concluded that there was an unusual or unique circumstance that entitled the employee to an additional 25 percent in his retraining, which she interpreted to mean up to 25 percent more weeks of retraining.  Specifically, the judge reasoned that the employee’s withdrawal from his classes on July 10, 2019, was due solely to his work-related medical condition, and that the employee never actually withdrew from the retraining plan.   While these facts are accurate, the result of the award of benefits is that the total retraining benefits paid and awarded would  exceed the statutory 156-week limitation, without any statutory basis for the exception.  We therefore reverse finding 12 and order 1, which effectively award benefits beyond the 156 weeks of retraining.  We further reverse finding 13, which finds that the employer and insurer did not pay benefits from July 10, 2019, through January 5, 2020, under mistake in fact.^[2]

On appeal, the appellants also argue that the judge erred in awarding TTD benefits upon completion of the retraining plan, pursuant to Minn. Stat. § 176.102, subd. 11(b).  That section provides that TTD benefits are payable for up to 90 days at the end of the retraining plan if the employee is not employed during a retraining plan, subject to various cessation events set forth in Minn. Stat. § 176.101.  The appellants argue that the employee is not entitled to receive 90 days of TTD benefits under Minn. Stat. § 176.102, subd. 11, because he failed to perform a diligent job search, withdrew from the labor market, chose to limit his job search, and declined job search assistance with the QRC.  They argue that there was a lack of hard evidence proving a reasonably diligent job search, noting that the employee’s testimony was vague, as the employee could not recall how much time he spent on job search activities and offered no job search records.  In addition, because the employee successfully completed the retraining plan and received a bachelor’s degree in cyber security, graduating summa cum laude, the appellants argue that he should have been able to secure employment in an IT position instead of returning to his former job driving a garbage truck at a wage loss.

We are cognizant, however, that we must affirm the compensation judge’s factual findings on this issue if supported by substantial evidence.  Hengemuhle, 358 N.W.2d at 59.  The employee testified that after graduating, he conducted an online search for jobs and tried to find local companies that had job openings.  He testified that because his QRC had given him instruction on job search in the past, he believed he could find a job on his own.  He testified that he did not document his job search because he was not asked to do so.  He testified that he had previously worked for Waste Management, and that when he started to struggle financially and still had not found a job, he learned that Waste Management had an opening and that he was able to return to work for them, which he did on August 15, 2022.  The compensation judge considered the employee’s testimony about his job search to be credible.  See Even v. Kraft, Inc.,  445 N.W.2d 831, 42 W.C.D. 220 (Minn. 1989).

The employer and insurer’s vocational expert agreed that the employee’s prior participation in job placement prepared the employee to complete an independent job search and that further vocational rehabilitation was therefore not necessary.  He determined that the employee was suitably and gainfully employed in the job at Waste Management and that rehabilitation services should be closed.  He explained that he was fully aware that the employee was not employed in the area consistent with his retraining program in cyber security; however, he concluded that the employee was suitably employed at Waste Management and further job search was not necessary.  Based on the employee’s credible testimony regarding a job search and the opinion by the appellants’ own vocational expert regarding the suitability of the Waste Management job, substantial evidence supports the compensation judge’s findings 14, 15, 16, and 17, and order 2, and we affirm.