*1 Thus, record contains substan- mine is whether the competitive market. agency’s determi- tial obviously unemployable, he evidence claimant 8, Lynn’s, prove that made rea- nation. Helms v. SD not have to does Here, 766. the evi- to find sonable efforts has competitive market. dence that Jackson made is substantial prima out his facie claim. (internal emphasis citations and Id. at 231-32 except four and affirm for issues [¶ 47.] We injuries from the original 44.] Jackson’s five, [¶ we reverse and remand to allow upper jaw, fractured fractured fall were a to intervene. State injury extremity, and fractured ribs Sabow, plexus. Dr. nerves the brachial MILLER, C.J., SABERS, [¶ and 48.] neurologist, treating declared first Jackson’s KONENKAMP, JJ., AMUNDSON and totally July In Janu- disabled in 1989. concur. many ary after Jackson underwent including procedures, surgery, some medical ultimately proved less than success-

of which

ful, impairment placed Dr. Jackson’s Sabow could done to

rating at 100%. Little physical treatment

correct the condition so alleviating Dr. Sabow on what

concentrated “burning pain 100% of as Jackson’s described SD 66 trial, the time.” At the time Jackson KURTENBACH, Employee, Roger per day, taking Tylenol IV codeine Appellee, and Claimant orders, pain. his to relieve under doctor’s taking this trial noted the result of court and left Jackson unable to drive medication FRITO-LAY, Employer, Defendant thought processes were his actions and Appellant, trial also mentioned good. The court weight approxi- dropped in from had Jackson pounds. The court mately pounds Insurance, Insurer, Defendant Planet pitiable of the most noted Jackson was “one Appellant. has persons this court observed.” 19579, 19582. Nos. back- As to Jackson’s educational 45.] training, the record reflects he ground and of South Dakota. Supreme Court briefly married was once was born Briefs 1996. Dec. Considered child, now an adult. has fathered one eighth grade an education and has has He Reassigned April history consists his His work G.E.D. earned 4, 1997. Decided June mills, working and steel in mines ranching, welding, fenc- working logging, eighteen-wheeler. He driving

ing, 1987, performing lived in this state since (what trial deemed

mainly jobs court odd of his jobs”) 1987 until the time

“spot has done

injury in work he returning injury to Lee’s and

since uninjured for a time with his

pulling weeds the record There is no evidence

arm. prison. while

he worked found Jackson The trial court under this state’s

“obviously unemployable” we must deter- The issue doctrine.

odd-lot *3 McCullen, Bangs,

Thomas E. Simmons of Butler, Simmons, City, Foye Rapid & for Appellee. Employee, Claimant and Lori Purcell Fossen Susan Jansa Evans, Davenport, Brunick Hurwitz & Smith, Falls, Appellants. Sioux (on MILLER, reassignment). Chief Justice Department Employer of La- appeals [¶ 1.] benefits to bor’s award rehabilitation year collegi- for a and one-half Claimant metallurgical engineering program. By ate review, appeals Claimant the circuit notice of during the court’s time denial benefits Department petitioning the prior to Labor as as the for rehabilitation benefits well deni- part al Cozine benefits. We reverse part. and remand in

FACTS employed Roger Kurtenbach was as [¶ 2.] Frito-Lay (Employ- salesperson a route er) when approximately years thirteen he injury in Au- a work-related back suffered injury, At time of the gust of 1991. year. earning nearly per Fol- therapy, he at- lowing surgery physical unable to tempted to return to work but was parties do perform his normal duties. The injury prevent- dispute that Kurtenbach’s returning position as a him from his ed Employer. salesperson route 13, 1993, Kurtenbach January On engineering program at in a civil enrolled Technology Dakota School of Mines & (SDSM T). major changed He later engineering.1 not con- metallurgical He did pro- preparing for use and includes them Metallurgical engineering "the ex- concerns them, (as heat-treating) ores, rolling, refining alloying, cesses metals their traction of testimony Employer receiving though presented as here for tact about 23, 1993, January time. until after his the first Kurtenbach’s enrollment Hendrix v. Graham Tire by Employer, prompting claim was denied (citations 876, 879 and internal Kurtenbach to quotations We review an adminis for rehabilitation bene- (Department) Labor agency’s any pre trative decision without fits. sumption that the circuit court’s decision was February Following a hear- County, Clay correct. Nilson v. that the five and ing, Department concluded (S.D.1995). 598, 600 engineering pro- year metallurgical one-half gram and reasonable means I. the award of rehabili- [¶ 7.] Whether *4 employ- restoring Kurtenbach to of suitable clearly tation benefits was erroneous. entitled to rehabilita- ment and that he was compensation The workers’ stat [¶ 8.] program. tion benefits for the duration compensation utes allow a claimant to receive petition held that his for Department also during rehabilitation: filed, timely but rehabilitation benefits benefits. request denied his Cozine employee If an disablement as suffers 62-8-1(3) in- defined subdivision or an appealed circuit Employer to the [¶ 5.] jury and is unable to return to his usual Department’s decision was affirmed court. customary employment, the line of entirety except the circuit court re- its employee compensation shall receive at the period the award of benefits for the versed provided by up sixty days § to rate 62-4-3 enrollment at SDSM between Kurtenbach’s finding if from the of an ascertainable loss January, and his to & T in employee actively preparing is to en- August, appeal 1993. gage program in a rehabilitation. followed. Moreover, employee engaged once such is in a of rehabilitation which is OF STANDARD REVIEW reasonably necessary to restore the em- review of administrative Our [¶ 6.] suitable, ployee gainful substantial and appeals is well-settled: employment, employee shall receive agency’s findings an overrule We will compensation provided by the rate they clearly are when erroneous. fact § during period the entire that he 62-4L3 question not whether there is sub- The engaged employ- in such The contrary agency evidence to the stantial file ee shall a claim with his there finding, but whether is substantial requesting compensation such the em- agency finding. evidence to ployer procedure specified shall follow the words, even there is evidence other chapter reporting inju- 62-6 for the record which tends contradict handling ries when such claim. If the determination, factual so denied, employee may petition claim is some substantial evidence long as there is hearing department. before the supports Depart- in the record which determination, af- this court will ment’s 62^-5.1.2 SDCL findings weight given firm. Great interpreted We have this statute on [¶ 9.] agency drawn and inferences made numerous occasions and established a five- of law questions of fact. Conclusions part awarding test rehabilitation benefits: fully given no deference and are re- reviewing pre- employee 1. evidence The must be unable to viewable. When apply customary line of by deposition, we do not turn to his usual and sented employment; clearly erroneous standard review properties study 2. This statute was amended in 1994. This and the of the structure Dictionary apply does not to Kurtenbach's Third Int’l amendment metals.” Webster's (1976). benefits. claim for rehabilitation the Depart- insurance. Ochs conceded at 2. Rehabilitation must suitable, employee hearing, restore the substan- ment his “Labor Market tial, employment; positions gainful Survey,” high these had turnover rate and a dismal success rate. He 3. The rehabilitation must only “good” salespeople also testified that restoring em- a reasonable means of expected compara- could be to earn at a level employment; ployee earnings Employer. to Kurtenbach’s with ble employee 4. The file a claim with must benefits; employer requesting the “ requires ‘The more statute actually pursue employee must employment. mere than restoration to program rehabilitation. reasonable new must when com be suitable Hendrix, Lage ” 520 N.W.2d at Chiolis employee’s job.’ pared to the former (S.D.1994); Dev. Cozine, (quoting Co.,& Beckman v. John Morrell 554). agree Depart We (S.D.1990); Cozine v. Midwest Coast positions ment that commission sales would (S.D. Transp., return Kurtenbach substan 1990). tial, gainful employment: distinguish must We between Claimant’s unable 10.] Whether Kurtenbach was *5 position Frito-Lay employ- and the customary with to return to his usual and by suggested Employer/Insurer. ment As employment. line of salesman, Frito-Lay route Claimant did requirement, first Kurten- [¶ base, not have to establish his customer inability “his and to return to usual bach’s rather, an existing but he took over route. customary employment,” unques line of is It is that the on routes true driver these tioned. His duties with included must route. service customers motion, lifting repetitive and tasks he was no being of sure the customer’s consists longer capable performing. of stocked, displays shelves and are well and prepared that the customer is for his sales. neces- 12.] Whether rehabilitation is encourages true that the driver While is suitable, sary to Kurtenbach to restore special displays, add the customer to substantial, gainful employment. and compared salesmanship cannot requirement, [¶ 13.] second quired of a successful auto dealer. One necessary, disput whether rehabilitation captive cap- has a and the other audience by argues It that Kurten- Employer. ed product wants tures. One knows the primarily job, position was a “sales” bach’s have available his consumer. The retraining unnecessary that because buyer ultimate of other convince the must jobs there are sales available which would product. the value of the “suitable, substantial, and restore him to Dep’t La- Frito-Lay, Kurtenbach v. SD of maintains gainful employment.” Kurtenbach bor, Management, Div. HF No. of Labor type personality is for the that his not suited 1995). (June 36, 1993/94 jobs Employer suggests, Ms sales and that of primarily not sales- job Employer was pointed that Department also out [¶ 16.] oriented, servicing main limited to find Kurtenbach be suit- Peniston did not taining existing His vocational ex accounts. presen- sales and that his ed for commission Peniston, that agreed sales pert, William hearing proved simply at that he tation Kurten- percentage for a minor of accounted personality traits of did have daily and further noted that he duties bach’s af- aggressive salesperson. agency, “‘[T]he “financially previous unsuccessful” was hearing holding listening to wit- ter positions. straight-commission sales nesses, position to find is in a much better ” appeal.’ than we on Cox v. Sioux jobs suggested Employer’s facts 14.] The 19-5, Ochs, Dist. No. expert, were Falls Sch. Ronald vocational positions involving (quoting Permann v. South straight-commission Labor, 113, 117 automobiles, cleaners, Dep’t and Dakota vacuum sale of of Chiolis, (S.D.1987)); (citation Gateway accord Abild v. rect.” 512 N.W.2d at 160 light In all 1996 SD above record, Department our review the Cozine, According to before the bur- [¶ 17.] clearly finding that erroneous Kurten- establishing the den of existence of suitable showing met his bach burden rehabil- employer, the em- shifts necessary itation was to restore him to suit- ployee prima showing facie must make able, gainful employment. substantial and employment. he is to find suitable unable Employer [¶ 20.] S. Whether the rehabili- 454 N.W.2d at 554. claims that day telephone inquire tation is a reasonable means restor- one calls to about jobs, employment. enrolling after Kurtenbach to the commission sales T, job & does not constitute a valid SDSM Employer disputes the rea ordinarily search. stated that sonableness of and one-half Kurtenbach’s five job establishing right search is critical year metallurgical engineering program, benefits, but it is not claiming chosen Kurtenbach where a would be fruitless because search will not him to restore beyond proposed employment “is the in- gainful employment employ because no dividual in terms of success.” opportunities in that field exist in Kur- we noted that the claim- community. tenbach’s Kurtenbach contends job aggressive than search was ant’s less willingness that his to relocate and the rec experts agreed he"need- excusable where establishing twenty-one ord evidence at least retraining. ed 160. Evidence metallurgical engineering opportunities na Department hearing presented at the pro tionwide make his chosen rehabilitation experts believed Kurten- shows gram reasonable. retraining. neu- bach needed vocational His purpose [¶ 22.] The of rehabilita James, rosurgeon, Dr. recommended voca- *6 injured employ tion benefits is to restore an retraining April tional March and of 1992. suitable, substantial, gainful ee to em so, made an Even Kurtenbach unsuccessful Hendrix, 883; ployment. 520 N.W.2d at April. attempt to return to work Dr. Chiolis, 161; Beckman, 512 at N.W.2d 462 retraining after examin- suggested Anderson 508; Cozine, at N.W.2d 454 N.W.2d at 554. ing him on on a referral from June program A of rehabilitation which not does Department of the South Dakota Vocational accomplish purpose this is not reasonable. examining him in Rehabilitation. After No- Mining See Barkdull v. Homestake vember, 1992, Goff, physiatrist, Dr. stated (S.D.1987). N.W.2d The claimant job. previous return to his he should not establishing bears the burden of the reason retraining concluded that was nec- Peniston program of a of rehabilitation. ableness suitable, substantial, essary him to to restore Chiolis, 512 N.W.2d at 161. Finally, gainful employment. even Em- stated, ployer’s expert type of re- “[S]ome A23.] determination of wheth [¶ training may be in order[.]” program er a of rehabilitation is reasonable goal necessarily requires testified that the in find- [¶ 19.] Ochs an evaluation of the em employment position ployment prospects upon is a offer- for suitable the claimant ing seventy-five eighty percent pre- completion program. to of the See Jane M. injury wage. Employer Draper, Compensation: did not meet its Workers’ Vocational Statutes, establishing the existence of burden in suit- Rehabilitation 67 A.L.R.4& (1989). able, gainful employment Employment prospects 628-29 suitable, availability not of without rehabilitation “because did substantial and any potential employers gainful employment present light who were are evaluated in of seventy-five eighty percent community. willing pay to the claimant’s Bonnett v. Custer (S.D. prior wage.... Corp., of There- Lumber 528 N.W.2d [Kurtenbach’s] 1995); Hendrix, 883; fore, finding that rehabilitation was neces- Peter suitable, sary Hinky Dinky, to restore sen v. [Kurtenbach] (S.D.1994); Shepherd Mfr’g, gainful employment substantial and was cor- v. Moorman (S.D.1991); pursue Rank Lind chose to not itation Kurtenbach does N.W.2d (S.D.1990). blom, employment An him in his restore to suitable state, community, even his rely employment oppor employer cannot on willingness change relocate not this.5 unreasonably require a does tunities which would a claim claimant to relocate order defeat A in a claimant enroll rehabili- Rank, 459 rehabilitation benefits. See for program tation without the consent of “The more restrictive. test is risk; employer, but he does so at his own employment The focus communi is, rehabilitation benefits will not be already residing.” ty claimant is where the particular program simply guaranteed for a Similarly, claimant to use Id. entitled program because the is one claimant community to job opportunities outside his pursue. requirements The wishes for program of a of the reasonableness establish rehabilitation benefits must met before Both and claimant rehabilitation. program will awarded for a of benefits community confined the claimant’s Hendrix, rehabilitation. 520 N.W.2d at 883. establishing of purposes whether highly specialized program of rehabilita- is reasonable. unilaterally does tion selected Kurtenbach not restore him to substantial his Kurtenbach contends community. "in gainful employment his Rath- it re- rehabilitation is reasonable because of er, program improperly elevates Kurten- pre-injuiy least of his stores to at 75% expense in life at Em- bach’s station Kurtenbach, year. wage per how- ployer. See ever, metallurgical has not shown that Barkdull, 411 at 410. chosen His to suit- engineering program will restore him metallurgical engineering specialty program community.3 His able the program not reasonable. Because Peniston, expert, there was no own stated requirements all the reha- does meet concerning availability em- information benefits, Department’s of re- bilitation award com- ployment opportunities in Kurtenbach’s habilitation is reversed. munity upon completion Pe- assuming probably “I’m he’s niston stated: 26.] Our award reversal going to to relocate after retrains.” have of rehabilitation benefits for Kurtenbach’s twenty-one metallurgical engineering program record indicates as few as should metallurgical engineers complete nation- as jobs exist not be construed denial *7 wide, in Kurtenbach is free none of which are located Kurten- rehabilitation benefits. propose program of rehabilita- community.4 program of rehabil- a different baeh’s The inappropriately supplements minority minority the respectfully has mis- We submit the holding regard. are not our in this We record Kurtenbach has failed in order read where Wooster, requiring prove actual a claimant must an that a result. See Woosterv. achieve desired opportunity, employment 330, that rather (noting judicial suitable 399 N.W.2d 332 in a employment must be available suitable ap- and review is to the record matters limited requirement sup- community. claimant’s This notice). judicial propriate for by this area. Bonnett ported our line of cases in 393, Corp., N.W.2d 395 Custer Lumber v. minority as- contends Kurtenbach “never 5.The (S.D.1995); v. Tire Graham Hendrix desire, ‘willingness,’ a or need to leave serted (S.D.1994); Shepherd v. Moor- employment.” Black This the Hills secure (S.D.1991); Mfr'g., 467 N.W.2d man by supported the De- not record. statement is Lindblom, (S.D. Rank specifically partment noted "Kurtenbach 1990). objection to Kurten- no relocation." voiced experts required assumed relocation was bach’s minority the enti- makes much of fourteen 4. The availability testified as to the reportedly hire area which ties in Black Hills metallurgical engineers based opportunities for according engineers to information from only employ- Additionally, the on relocation. Department of Environment South Dakota by were for presented Kurtenbach statistics report and the statistics Resources. Natural were opportunities, none of which nationwide part minority not relied Clearly, in Dakota. Kurtenbach located is not presented our review. It record settled and, fact, in advo- opposed to relocation was not judiciary appropriate to ad- function of the an through present- the evidence he party cated relocation argument who has on behalf of vance Department. ed to or failed to meet his burden. evidence overlooked GILBERTSON, require- program meets the five [¶ 32.] tion. If the AMUNDSON JJ., ments, is entitled to receive rehabilitation concur. Hendrix, 520 N.W.2d at 883.

benefits. See KONENKAMP, JJ., [¶ 33.] SABERS of rehabilitation part part. The denial in [¶ 27.] dissent and concur metallurgical engineering program for the J., SABERS, part [¶ 34.] dissents dispositive of whether Kurtenbach’s claim for part. concurs in by enrolling the benefits was defeated before petitioning Department. SABERS, (dissenting part Justice

concurring part). II. Whether Kurtenbach is enti- majori- I dissent on Issue 1 as the [¶ 35.] tled to Cozine benefits. record, ty’s unsupported by conclusion is precedent, logic. or I would reach the merits raised, by Kurtenbach notice [¶ 29.] that a on Issue 3 and determine claimant review, Department of whether issue Department prior need not awarding him benefits. erred Cozine enrolling in a rehabilitation I paid are those which are to a Cozine benefits agree that we should remand on Issue 2. part body of a claimant for the loss of the Cozine, 454 N.W.2d at its loss of use. See 1. THE REHABILI- [¶ 36.] AWARD OF 551-52; responsibil It SDCL 62-4-6. is the TATION BENEFITS WAS NOT ity Department determine a claimant’s CLEARLY ERRONEOUS. UPS, loss of use. Tischler v. 1996 SD 597, 607; presents 62-4-6. SDCL This case an unusual situa- specifies employee experience 62-4-6 the amount of com tion where an with little “SDCL employee pensation an shall receive for the and limited education was able to earn al- ' $40,000. body part Department of the or its loss of use. most loss of held language completion statute The clear directs Kurtenbach’s successful of the en- < n T compensation paid gineering program shall be loss SDSM will life, Consequently, hearing use. examiner elevate his station but “rather will if, extent, simply and to what restore him to must determine substantial part gainful employment, especially the loss of use of a claimant has suffered consider- Cozine, body.” [prior] earning ap- 551-52. Claimant’s level of proximately per year.” Our task on Kurtenbach claims appeal is to determine whether there is sub- denying request erred in for Cozine bene- stantial evidence in the record to fits in to rehabilitation addition benefits. We decision, agency’s Hendrix v. Graham Tire have concluded award of bene- Co., (S.D.1994), not to metallurgical engineering pro- fits for the reverse, find reasons to even we would not record, however, gram was in error. The have made a similar decision. Fenner v. *8 Department any void of indication that ever Inc., Transp., Trimac 1996 554 SD assigned disability Kurtenbach loss-of-use 485, Beck, (citing 489 v. N.W.2d Peterson 537 required assign rating. Department 375, (S.D.1995)); N.W.2d 379 accord Cox v. rating, properly a loss-of-use 19-5, Falls Sioux Sch. Dist. No. 514 N.W.2d statutory duty. fulfilled its SDCL 62-4-6. 868, (Miller, C.J., dissenting) 876 Therefore, remand for a determination of we (“It appears Department to me that and the Kurtenbach’s loss of use. majority improperly searching are for rea- Board.”). majority sons to reverse the The We reverse award of opinion disregards damages the well- metallurgical benefits for the rehabilitation principle compensation settled that workers’ engineering program and remand for a de- liberally in statutes are construed favor of termination of Kurtenbach’s loss-of-use dis- injured employee: the ability rating any pro- and consideration of long-standing gram public policy of rehabilitation which Kurtenbach It that compensation liberally might propose. statutes be worker’s

877 Furthermore, not in- injured employees. the CPC statistics do in favor construed concerning the any geographical data clude Fire & Service v. Minn. Med. S.D. Mu%. offers, job majority that (S.D.1981). so the statement Co., N.W.2d 358 303 Cas. presented by only employment “the statistics are “re- compensation statutes Worker’s opportuni- were for nationwide Kurtenbach medial, liberally construed and should ties, of which located in South none were Moody purpose.” v. to effectuate [their] 5) (supra finds no Dakota” note Combiners, Tyler, L.W. Custom this record.6 179,180 (S.D.1980). expert, Employer’s own vocational 243, Coop., Spink 442 N.W.2d Mills v. Elec. Ochs, he from Ronald testified that learned (S.D.1989); Cas. accord Great West Co. T there would be SDSM & ¶73, 6, Bergeson, 1996 SD 550 N.W.2d engineers gold metallurgical available for 419-20; Clay County, 534 N.W.2d Nilson v. testimony specifically mines. did Ochs’ (S.D.1995); Welch v. Automotive Hills, gold mention the mines Black (S.D.1995). 406,409 Co., 528 N.W.2d gold to fathom what other is difficult hear- Department Evidence at the 38.] referring. mines have been to which average yearly salary that the showed Department Dakota of Environ- metallurgical graduated newly to a offered Resources, Envi- ment & Division of Natural $35,000. pro- This engineer was statistic Services, Mining Pro- ronmental Minerals January Salary through 1995 “CPC vided the gram are at least fourteen reports there College Swvey,” publication Place- do in the Black Hills entities which business (CPC), compiles starting which ment Council limestone, mining compa- gold, gravel as by place- provided career salary offers engineers. hire includes nies This colleges and universi- offices various Transportation and ex- the opinion majority the Employer and ties. pop” operations.7 cludes “mom and only reported fact CPC make much of the is to show that Kurtenbach’s burden metallurgical engineering made the offers is reasonable August September 1994 to field “suitable, it will him to proving that restore 1995; Employer states these were gainful employment.” Hen- may may in the entire nation. That offers drix, Lage Chiolis v. provides: trae —the disclaimer CPC not be (S.D.1994); 158, 160 Dev. Co.,& Survey Beckman v. John Morrell are a reported offers (S.D.1990); v. Midwest Coast job Cozine sample of offprs actual representative (S.D. during Transp., graduates college made to new 1990). demonstrating job is achieved year imply all recruiting and do not will the claimant college enable graduates.... made to all offers seventy- salary roughly equivalent are earn where rela- categories In those offers salary. pre-injury regarded eighty percent of his few, tively data should be Testimony at 160. original). (Emphasis in only as indicative. properly subject to fact, type of facts information does not release CPC college, (FedREvid employer, regarding or the indi- judicial See 19-10-2 notice. SDCL therefore, despite job; the ma- offered 201(b)): vidual contrary interpretation of the opinion’s jority judicially must one not sub- A noticed fact impossible tell these offers port, where ject dispute either Clearly, in that it is Kurtenbach did not "advo- to reasonable made. were *9 through Copies (1) this evidence. generally cate relocation” territorial known within the repro- are the CPC of the relevant sections jurisdiction or of the trial court allow to this to and attached dissent duced (2) ready capable determi- of accurate objectively. to view the evidence reader accuracy whose resort to sources nation reasonably questioned. be cannot necessary to would concede that it I 238, Walker, 246 Poppen v. 520 N.W.2d See also readily facts emphasize ascertainable such ("We (S.D.1994) judicial of his- take notice majority applying the correct standard were general knowl- which are matters torical facts event, gold any In that there review. peculiarly connected edge specially those mining Hills which operations in the Black other state.”). affecting disputed reasonably with or engineers can hire 878 event, any in I fault the salaries listed CPC were do not

showed that equal starting in to salaries approximately demanding the circuit court for not this infor- ($29,000- private sector mation, Dakota given that this will be the first time $30,000); agency pay would a little a state this court has done so. $26,- less, starting salary of around with by pre- [¶ 42.] Kurtenbach met his burden 000-$27,000. placement rate SDSM 1) senting placement evidence of a 90% rate 90%, graduates becoming with 80% & T 2) regional ranging salaries being accepted post- employed and 10% Therefore, $30,000. pro- to his rehabilitation graduate studies. gram employment will enable to secure case, majority suddenly In this pre-injury salary. at 65% to 75% of his As announces a new standard where the claim- noted, Thus, goal is 75% to 80%. prove program will “actual- ant also must logic majority for the “the defies state community. ly him to work in his restore” program improperly elevates Kurtenbach’s in line This is direct contravention with our expense Employer.” in life at the station area, always of eases in this where we have ¶ 25, Approving supra. rehabilitation bene- capable on whether claimants are focused go fits to enable Kurtenbach to from Frito- nearly pre-injury realizing the same level of Lay salesperson metallurgical engi- route may job they might pay, offers not how Hendrix, See, neer does not elevate his station in life. Our e.g., receive. (addressing disapproving at a cases rehabilitation benefits be- 881 whether claimant); wage comparable they was available to cause would “elevate sta- [a claimant’s] Chiolis, (weighing a N.W,2d at 161 two- 512 programs in tion life” refer to which would against four-year program year program subsequent in wage, result increase anot four-year concluding that a was unneces- flattering prestigious more or more title. pre-inju- sary claimant could realize because See, 161; Cozine, e.g., 512 N.W.2d ry two-year program). wages via the When 454 N.W.2d Barkdull v. Homestake statistics, his Kurtenbach offered the CPC 408, Mining 411 N.W.2d 410 prove engi- salaries in the purpose was to (Barkdull ).8 Here, II actu- Kurtenbach will field; majority neering Employer and ally drop wages, realize a substantial mak- reported ignoring 21 seized on the offers— preposterous his station in conclude attachment) (see 38 & disclaimer —and life is elevated. issue; however, put matter at when thus majority opinion states that two-year program, Employer advocated the “willingness Kurtenbach’s to relocate” does many to show how no evidence was offered achieving not meet the job hope to test suitable em- could receive offers Kurtenbach curious, ployment. graduation school. This statement as it after from vocational (from Moreover, accounting pro- occupation are not winch truck driver to such shifts in Brown, 655, unprecedented compensation re- gram); under workers' Cup Solo Co.v. 660 P.2d 658 Beckman, See, e.g., 462 habilitation statutes. (from (Okla.Ct.App.1983) operator jew- forklift (from shackling N.W.2d at boning cattle and 508-09 course); elry making Bonding Massachusetts course); technology printing hams to a Comm'n, 505, Ins. Co. v. Industrial 275 Wis. 82 327, Ga.App. Ranger Speck, 243 Ins. Co. v. 145 191, (1957) (from pilot N.W.2d 192-93 to social 593, (1978) (from police S.E.2d officer to State, program); Corp. work see also Beloit v. degree enabling accounting a career in Comm'n, 579, Labor & Indus. Review 152 Wis.2d Seal, bookkeeping); Wilson Crown Cork & denied, (Wis.Ct.App.), N.W.2d review (Minn.1993) (from manual (Wis.1989) (awarding four-year program production labor accounting); worker to five-year engineering benefits for mechanical House, v. Little Steak Gilmore lack's years program to claimant who was 19 old and (from (Minn.1980) bartender injury); employed for one month at time of program accounting and business adminis- Wilson, ("Rehabilitation 503 N.W.2d at 475 cf. tration); Norby v. Arctic Enter. 305 Minn. leading job higher efforts to a economic (1975) (from 774-75 small status than would have occurred without engine accounting); mechanic disability permitted if it can be demonstrated Corp., Behrens v. 191 Neb. Ken necessaiy that this rehabilitation is to increase (from (1974) motel maid to secretar- 734-35 (citation reemployment.”) & in- the likelihood of Comp. training); ial Smith v. North Dak. Workers *10 Bureau, (N.D.1989) quotation ternal 251 & 259 Therefore, issue 1 for we should remand in the record. Kurtenbaeh support has no desire, fact-finding regarding Kurtenbach’s “willingness,” a a more never has asserted upon gradu- gional employment opportunities the Black Hills to secure or a need to leave ation.10 contrary, employment. the he offered On

testimony starting salaries show what the to 2. I WE RE- 46.] AGREE SHOULD [¶ Dakota, engineers both for were MAND ON ISSUE government em- private and in the sector ployment. CLAIM 3. KURTENBACH’S BY EN- DEFEATED above, WAS NOT this is an unusual 44.] As noted

[¶ BEFORE PETITIONING ROLLING very post- person with little situation where THE DEPARTMENT nearly secondary able to make education was per year. While I think there argues Employer that Kurtenbaeh in the record to substantial evidence receiving completely from rehabili- barred decision, at least we should the petition because he did not tation benefits show give opportunity the to Kurtenbaeh hearing Department for a before he en- the “actually restore” his will whether De- engineering program. in the rolled in his communi- him suitable timely his partment held that decisions, he did ty. According prior to our holding Judge Zinter modified that filed. that this is the not have notice before now from time of benefits owed the enroll- omit supra In 24. he must meet. See standard petition. of time Kurtenbaeh case, fact, court prior one this at least by holding of appeals notice review. be- benefits denied claimant rehabilitation entirely Employer on Chiolis for its relies em- employer his demonstrated that cause requires a of position, which review that deci- throughout state. ployment available the sion, specifically, following the statement: II, See Barkdull college pro- his current Chiolis started gram petitioning Department before adopts court this new stan- 45.] If the dard, recognizing Even provided with rehabilitation benefits. then have not been we purpose primary an the of rehabilitation adequate to make an basis injured employee is to restore the do not know wheth- informed decision.9 We gainful employment, and the opportunities to substantial limited his er Kurtenbaeh unilaterally may not decide what switching of to metal- worker the focus pursue qualified training he he be or she want lurgical engineering. Will employer’s ex- type proceed of do so accept positions as civil or other Corp., 12 jobs pense. Murdock v. MBPXL gold mine to which engineer? Are the (1987). Kan.App.2d 742 P.2d in the Black Hills? located Ochs referred approach independent approve any reported 21 made “To such offers Were training by a claimant to rehabilitation engineering field extended metallurgical community? in untold administrative and result jobs Black Hills would information, difficult, total'breakdown under economic chaos it is Without legislatively to thé intended benefits a final determi- majority opinion, to make training.” injured worker chose a reason- Kurtenbaeh nation whether self-improvement highly Id. “While such restoring himself means able laudable, of the claim- particularly in view This gainful employment. it, independent quest unaided ant’s can be resolved absent additional issue carrier, it is outside disputed concerning facts. these information examiner, comport principles counsel, hearing well. would fairness to judge, they evidently efficiency. judicial economy relied It is unreason- court circuit regional testimony regarding upon salaries majority Kurtenbaeh to to invite able for job potential inquire the number did not into program of rehabilitation propose a different offers. year left on his and a half when current being Issue case is remanded on 10. Since the as 1 on remand to resolve Issue it makes sense *11 provided by Furthermore, range of benefits” South Da- the cases cited in City Colegrove, kota law. Salem v. apparent proposi- Chiolis of this (1984). Murdock, Va. 321 S.E.2d To point. tion are not on See approve procedure a which allows an in- (denying P.2d at 445-46 rehabilitation bene- jured employee to select a rehabilitation fits when claimant entered a medical assis- petitioning Department program 1) before program though tant in- even she was reaching agreement employer with the medically formed she was unsuitable for that putting the cart would be before the horse. 2) program injury; because of her she was Chiolis, acting approval without from her vocational First, 512 N.W.2d at 161-62. this 3) counselors; acting against she was court statement can be characterized as dictum order). clearly benefits, Murdock does not stand for because was denied Chiolis not be- proposition may a prior claimant not receive petitioning cause enrolled simply Department but because he failed in rehabilitation benefits because she en- his bur- four-year degree program program petitioning den to show that a rolled without necessary Department. Colegrove, to return See also 321 S.E.2d gainful employment. (holding Virginia Fatal to the claimant in at 656 that com- workers’ four-year program pensation encompass Chiolis was that a would statutes never a four- go beyond restoring pre-injury wage him to a year college degree program as a reasonable by elevating expense his station in life at the program). rehabilitation Cole- employer. of his Id. at 161. grove directly contradicts another statement implying Chiolis: “We are not that a four- Next, neither statute nor our 49.] year college degree can be a never reason- interpreting requirement a cases establish able means of rehabilitation.” 512 Department petitioned that the must be be- pursues pro- fore a a rehabilitation claimant fact, gram. cannot receive one A approach more common-sense is employee engaged pro- until “such retraining pro- that claimants enroll rehabilitation!)]” gram of SDCL 62-4-5.1 risk; is, grams at their own that rehabilita- added). Hendrix, (emphasis See also guaranteed tion benefits will not be for that 883; 160; 512 N.W.2d at particular program simply because that Cozine, Beckman, 462 N.W.2d at pursue.11 the one the claimant wishes (unanimously listing only N.W.2d at 553 requirements discussed above still must previously requirements, discussed five be met before rehabilitation benefits will be ¶ 9). produced supra at Nowhere before or paid right out. “It is [Kurtenbach’s] to seek suggest since Chiolis did we that a education, college [Employer] but cannot prerequisite. to the compelled pay such only mandatory language per- in the statute Cozine, necessary.” filing employer, tains to a claim with the “may” that the providing peti-

while claimant Department upon tion the denial of its claim 62-4-5.1 [¶ 52.] SDCL was amended effec- employer. July SDCL 62-4-5.1. tive not affect does conclusion, Comm'n, reaching (Colo.Ct.App. 11. For a case similar see 710 P.2d Co., 1985) ("[When] 497 So.2d Towne v. Bates File a claimant has established 1986): (Fla.Dist.Ct.App. unauthorized medical treatment or vocational re- degree permanent habilitation has reduced the prior request [of A to the Division Workers' partial disability from which the claimant would Compensation] for evaluation of a claimant’s expenses otherwise have suffered and that the indispensable rehabilitation is not an need for reasonably proportionate thus incurred are precedent to condition an award of rehabilita- received, employer benefit is liable for precluded [T]he tion .... claimant is not expenses.”); such unauthorized reasonable obtaining independent services Eater, Division, Freeman v. 630 So.2d PoulanfWeed but when he does so he (La.1994) (holding 740-41 that claimant's inde- those services at the he will obtains risk pendent pursuit meaningful of a persuade depuly commissioner those entirely employ- necessary. "should not relieve the particular services were (Citations quotations obligation er of its rehabilitation ute”). under the stat- and internal See Eby also Martin K. Constr. Inc. v. Industrial *12 version, Therefore, petition Depart- however, dispute; under new enrollment enroll- a certificate of produce claimant must before benefits, rehabilitation notwithstand- receive benefits. request even ment to contrary in ing the statement to the Chiolis. may This (Supp.1996). 62-4-5.1 See SDCL the circuit court’s denial We should reverse that makes sense be further evidence period time between a of benefits Any process. begin enroll order De- petition claimant’s enrollment force a claimant to other conclusion would partment, holding based because that was Department,12 the from the wait for decisions reading entirely on the circuit court’s correct court, court. For Kurten- circuit and this modify. now which we should baeh, he not have mean that could this would Department’s holding that this his rehabilitation safely commenced timely filed correct.

until court’s decision. after this KONENKAMP, J., joins special fall of 1997—as stands' mean the semester writing. now, year completed all but a degree program. half of his

ATTACHMENT YEARLY SALARY OFFERS AVERAGE Degree Bachelor’s Candidates Women) (Data for Men Combined n # n n

Metallurgical $37,000 $30,000 $38,100 $33,429 4.7 Engineering

n n ^[*] n petitioned nearly years findings two after Kurtenbach and conclu- fact 12. The hearing. August law were not until sions of filed