*1 VARDA, Relator, Tanya L. CORP., and AIRLINES
NORTHWEST
Liberty Insurance Mutual
Respondents. A04-1707.
No. of Minnesota.
Supreme Court 24, 2005.
Feb.
imаtely year years to 6 old. She lives in the Chisholm/Hibbing area with her fami- ly, and her stated intent is stay in that area to raise children.
In March Varda working started as a specialist reservations at a Northwest Airlines reservations center in Chisholm. The nature of her work required continu- computer ous keyboarding. For at least 9 Thomas R. Longfellow, Stacie R. year, months each she worked fulltime and McBride-Cox, Paul, MN, St. for Relator. earned an hour. For no $12.73 more than Endres, Kathy A. M. Stepaniak, Susan year, 3 months each she worked aas sub- Aafedt, Forde, Monson, Gray & Minne- supervisor, stitute earning an hour. $19.86 MN, apolis, for Employer and Insurer- As a Respondents. employment, result of her Varda compensable injuries sustained in the na- ture of carpal bilateral syndrome tunnel with ulnar nerve involvement that culmi- in disability nated August as of 2000. OPINION permanent She has work restrictions of no more than 20 keyboarding minutes of per HANSON, Justice. hour, repetitive no use of her hands and . compensation workers’ This matter repetitive wrists and no extension of her comes before this court upon certiorari arms. She is limited from lifting 20-25 employee Tanya the relation of L. Varda pounds frequently pounds and 50 occasion- to review a. decision of the Workers’ Com- ally. Because Northwest Airlines was un- pensation (WCCA), of Appeals Cоurt re- able to accommodate these work restric- versing judge’s award of tions, employment Varda’s was terminated retraining benefits under MinmStat. in March 2002. (2004). § 176.102 Although compensa- 20, 2003, February On proposed tion awarded benefits based on a 4- retraining plan consisting years year program College at St. Scho- college College eoursework at the of St. lastica that would lead to a bachelor of arts Duluth, Scholastica in September 1, from in degree nursing, the WCCA substituted 31, 2007, through May leading to a an award of retraining benefits based on a bachelor of in degree nursing. arts The 2-year program Hibbing at Community $144,388 ($80,828 estimated cost was in College that would lead to an in associate tuition, $5,000 $34,560 in books/supplies, in in degree nursing. science Varda asserts $24,000 mileage, and in daycare). custodial compensation judge’s award was ' supported by substantial evidence and that obtaining Varda also considered a 2- it was error for modify the WCCA to it. year degree Hibbing Community from the We affirm the decision of the WCCA. College qualify that would her to seek Tanya 30-year-old (RN). Varda is a high a registered licensure as school graduate who a 2-year only obtained formal retraining plan submitted for degree in marketing sales and Range from 4-year plan through consideration was the Technical College. Sсholastica, She is married and has St. but there was evidence ranging age three children in approx- from estimated cost of the “require people ed from College tuition, $1,500 $9,500 ($7,200 key day phone all or talk on the data would be basically or data day miscellaneous all desk books/supplies, $800 * * * items). apprоval entry jobs, to seek bill jobs, Varda decided claim examiner *3 * * 4-year degree. jobs, the not state for review She did jobs require percentage nursing what retraining dispute, At hearing the that activity. Garrison, expert vocational Kandise a pro- to assess the Lowe, whom Varda retained for expert Jan the voсational a plan, testified that posed retraining insurer, its that Northwest and testified degree qualify for bachelor’s would Varda 2-year program Hibbing the at Communi- positions. said greater a number She ty appropriate. was more She College nurses, trains staff 2-year that a program survey showed said that her labor market positions the avail- represent 60% of which earnings hourly little terms of difference nurses, 4-year degree a able for whereas a a Lowe 2-year 4-year “for versus RN.” nursing 40% of required for the other “a College said offers positions. Garrison testified that Varda get that program shorter would manager, as a experience had some work end, job, her to RN as the same to an a to required and that looking would at the St. Scholastiea.” nursing. a manager’s secure retraining plan, total that it Lowe testified Finally, she testified that St. Scholastiea economically was reasonable do “more nursing graduates with placed 100% its 2-year 4-year plan, the versus the $45,000. typical salary of Garri- starting a requires from great deal travel to and earning ca- compared son this to Varda’s Duluth much at the cost benefit disability, only but with pacity before her end of noted that a program.” Lowe work, supervisory her respect to occasional of health carе facilities hired nurs- number $40,000 a yielded which would have about 2-year degrees work es with who needed year available for a full had work been accommodations.
year. The compensation judge approved Var- testify that explicitly
Garrison did not retraining request, finding -L-year da’s an 2-year be degree would unsuitable program “substantially would increase her agreed retraining program. She that Var- 2-year employment options”; RN likely completing at da would succeed permit “perform would Varda College Hibbing Community program and nurse, duties of a staff duties obtaining employment. She stated that taxing”; “approximately more and 40% of RN stаrting wage 2-year for an with a all nursing positions positions non-staff an hour. degree would be $20.55 4-year BA com- requiring degree.” pensation judge conclu- summarized his that testify Garrison did Varda’s work sions follows: as per preclude restrictions would from nursing spite some for which of the substantial additional forming incurred!,] 2-year degree is sufficiеnt. She stated costs to be the Court finds reasonable, hospitals homes and that some more lift BA require pursue nurses to be able to more than “I pounds, pre degree through College said think she is of St. Scho- alterna- very from that small number of lastica rather cluded College. tive As require pounds.” Hibbing Community She at would above, thе em- preclud Findings also testified that would indicated ployee delay is faced with a substantial uncontroverted that the employee- will if in fact to attempt she were to enter be able obtain physically suit- 2-year program Hibbing Commu- able RN with a 2-year a[n] Further!,] nity College. as indicated degree, wage at 1a comparable to a 4- Garrison, testifying Ms. on behalf of the year RN and at a equals employee, in all likelihood pre-injury exceeds her wage, require that there is no evidence that the em- half-year schooling. signifi- Of more ployee can reasonably expect to obtain cance, however, is that withоut a BA work in one of her areas of special inter- 4-year program!,] without the est. *4 employee eligible is not to become a Varda v. Corp., Northwest Airlines No. public health nurse or a school nurse. WC04-132, 2089585, (Minn. 2004 WL at *6 addition[,] without that 2004) 11, 7). Aug. (slip op. WCCA The in employee all likelihood would not WCCA concluded: eligible apply supervi- be for or a hold Because the record aas whole does not sory position —a support conclusion that the much is less taxing than expensive more St. Scholástica nursing performed by the duties a staff nurse. reasonably required to re- This is of than passing importance store the employees lost earning capaci- employee’s rather sub- ty, we reverse the judge’s approval of stantial restrictions. employee’s proposed retraining plan did not specifical- approval and substitute of the alterna- ly might address how Varda’s restrictions 2-year Hibbing tive Community College n ' affect qualifications for the 60% рrogram. RN nursing jobs require that did not a Id. degree or determine that the the WCCA a com reviews When gram would not return Varda to the eco- fact, pensation judge’s findings of it will nomic status she would have with- affirm they .those unless disability. out the “clearly unsupported by erroneous and reversed, appeal, On the WCCA con- substantial evidence in of the view entire cluding that the a record as whole did not . record submitted.” Minn.Stat. explained: award. The WCCA 1(3) 176.421, (2004); § subd. see also Hen Certainly a degree may be “bet- gemuhle Long v. Jaycees, Prairie 358 ter,” in terms of employ- the number of 54, (Minn.1984). N.W.2d 61 Although the opportunities, ment proposed required WCCA is to look at all the evi alternаtive. nursing Some dence, give weight it must due to the require do fact Bachelor’s compensation judge’s opportunity to evalu and some may.be other credibility ate the of the witnesses and employee’s inconsistent with the lifting uphold findings must on conflicting based However, restrictions. evidence evidence from which morе simply record fails to establish that the might reasonably than one inference gain any significant eco- drawn. Id. at 59-60. nomic advantage attending the 4- year program outweigh sufficient-to But when the reviews a WCCA immense additional cost. This is espe- compensation judge’s ques decision on a law, cially true essentially give tiоn of it need no deference 444 possible as close as to what
conclusions See, enjoyed without novo. would have dis- those conclusions de reviews This, course, require ability. does not County, 2003 e.g., Kubat v. St. Louis WL (Minn. job “high- and a 5, precision, produces 22170729, Sept. at *3 WCCA have Bros., er economic status than would oc- 2003); 55 Megarry Megarry v. permitted disability curred 276, 279 Comp. Minn. Workers’ Dec. if it can be that this rehabili- demonstrated (WCCA 1996). Kubat, the WCCA reit necessary tation is to increase the likeli- question that a erated that rests reemployment.” hood Minn.Stat. of a un application statute to 1(b) (2004). subd. The term Kubat, question disputed facts is of law. “necessary” means thаt which “will materi- 22170729, at *3. have said 2003 WL We ally restoring assist the his that an to retrain entitlement impaired capacity earn a livelihood.” law ing benefits “is a mixed Seal, v. Crown Wilson Cork & N.W.2d Wirtjes and fact.” v. Interstate Power (Minn.1993) Norby (quoting (Minn.1992). 479 N.W.2d Enter., Inc., 519, 521, 232 Arctic 305 Minn. have “ter recognized But we also (1975)). N.W.2d *5 question” analysis minal of an of the evi WCCA, According to of has decisions the dence'—-“whether the evidence such the determining eligibili factors considered in to substance as the inference or (1) retraining ty for include: the reason implicit necessary to deduction and sus of retraining compared ableness to re tain the affirmative conclusion”— turning employee the tо work with the question Stanley law. Tillman v. employer through job placement or activi Works, 421, 426, 222 Iron 24 Minn. (2) ties; employee the of the likelihood (1946) 903, (quoting 905 N.W.2d Susnik in a succeeding formal course of study Co., 325, Mining Oliver Iron 205 Minn. given the and abilities inter 249, (1939)). 286 N.W. 252 As dis (3) ests; the that retraining likelihood below, cussed we conclude that the termi reasonably result would attainаble question plans nal of the two here —which (4) employment; and the likelihood that appropriate is most most reasonable— and retraining produce would an economic sta application rests on the of the workers’ possible as close as to that which tus the statute, Minn. compensation rehabilitation enjoyed would without have the essentially undisputed to Stat. Foods, disability. Poole v. Farmstead law facts and thus involves a Comp. Minn. Workers’ Dec. WCCA, court, ultimately and 1989). (WCCA And the WCCA has said reviews de novo. that the employer when and its insurer comparing retraining When one retraining plan, propose alternative anothеr, program with we consider compare sufficiency examining of the evidence while by plans evaluating plan each purpose for retraining benefits. factors, considering the Poole the duration purpose of to return retraining benefits is programs the relative costs and and “to his or her established in returning еffectiveness each the em preinjury employment and to dis- ployee to an as close economic status as workers’ bene eontinu[e] that possible to which would have been Thus, Wirtjes, fits.” at 715. disability. N.W.2d Kunfer retraining is intended to return em man v. Ford Motor 55 Minn. Workers’ 1996). (WCCA joba that ployee produces Comp. an economic Dec. 467-68 context, gram necessary In this we conclude that becomes the cost. As essentially undisputed that evidence is the WCCA noted: 4-year retraining pro- both the However, in this simply the record job grams provide a that would would fails to establish that higher to an economic status return Varda gain any would significant еconomic ad- than she would have had without the dis- vantage attending ability. testimony supports Garrison’s gram outweigh sufficient to the immense 4-year program that conclusion especially cost. This is true better, testimony sup- but her does not given that it is uncontrovert- port 2-year pro- the conclusion that ed that the employee will be able gram would not be or reason- obtain suitable Further, able. to the extent Garrison 2-year degree, a[n] RN with a at wage preference based her for the comparable to a RN and at a opportunity present it would equals pre- exceeds her management positions, for to obtain injury wage, that there is no was without foundation the record evidence that the employee can reason- testimony because Varda’s own showed ably expect to obtain work in of her one management posi- that she did not have a special areas of interest. disability. tion prior Her fundamentally entry, op- was data with an Affirmed.
portunity supervisor to substitute as a year. no more than' one-fourth of the ANDERSON, (dissenting). PAUL H. way, prospect earning Viewed this *6 2-year an hour with de- $20.55 DISSENT gree a significant improvement would be respectfully I Admittedly, dissent. this prior ability Varda’s to earn an $12.73 and, is a if I original close case were the hour for 9 months аnd an hour for 3 $19.86 fact, I might trier of well reach the same year, of each months which combine to majority. conclusion as the and the WCCA an produce annualized of $14.52 But appellate this case is before us on hour. review, by so appro- we are restrained The criticai then becomes priate standard of review. The WCCA is 4-year costly program whether the more affirm findings of fact of a compen- “necessary to increase the likelihood of sation unless the are “clear- reemployment” meaning within the ly unsupported by erroneous and substan- 1(b). 176.102, § Minn.Stat. subd. Becáuse evidence in entire view the record as tial undisputed 2-year facts show that the submitted.” Minn.Stat. subd. program will restore Varda to an economic 1(3). Here, the record that there is shows higher she before the substantial evidence to the com- disability, -question we view that as one of pensation judge’s decision and therefore law and conclude that fact that the 4- clеarly his decision is not erroneous year program could be even more benefi- should be affirmed. cial than the not program does as most workers’ com- “necessary.” establish that it is To the cases, contrary, agree pensation conflicting we with there was ex- the WCCA’s con- that, pert testimony, clusion and for thаt reason the retraining pro- because both reasonable, grams majority the WCCA and the have erred when deciding determining they explicitly factor in which or implicitly either conclude MEYER, undisputed. (dissenting). facts are Justice
that most testified and Garrison join I in the Paul dissent of Justice H. specific that Varda had judge concluded Anderson. some place limitations that would physical as an RN. employability on her limitations con-
Specifically,
cluded: above, Findings
As indicated is faced with a substantial de- attempt if in fact she were to
lay enter the In re PETITION FOR DISCIPLINARY Further[,j College. as indi- ACTION AGAINST Yvonne B. Garrison, testifying on be- cated Ms. MOORE, Attorney, Reg a Minnesota employee, in all likelihood half of istration No. 74895. require an 2-year program would No. A04-215. half-year schooling. Of however, significance, with- Supreme Court of Minnesota. a BA out Feb. 2005. eligible is not program[,] public health nurse or a to become addition[,] without that
school nurse. in all likeli- eligible apply
hood would not be position supervisory
or hold a —a physical- is less
ly taxing performed by than the duties pass- nurse. This of more than
staff
ing importance substantial restrictions.
rather
Moreover, I believe that the WCCA erred when it reviewing
in its role as court
substituted its those it found “that it when that [Varda] uncontroverted able physically
will to obtain 2-year- RN with a
suitable a[n] added). record
degree” (emphasis whether, given it was disputed
shows that limitations, could ob- employment
tain suitable after
completing
Community College. review, I our
Given standard affirm the decision
reverse WCCA and compensation judge.
of the workers’