Opinion
No. C2-93-1778.
December 10, 1993.
Appeal from the Workers' Compensation Court of Appeals.
Barry M. Robinson, Coon Rapids, for appellant.
T. Michael Kilbury, St. Paul, for respondent.
Considered and decided by the court en banc without oral argument.
The Workers' Compensation Court of Appeals reversed an award of economic recovery compensation. We reverse and reinstate the decision of the compensation judge.
On July 2, 1990, Bradley Schneider sustained a compensable low back injury while employed as a union welder by Arrow Tank Engineering at a weekly wage of $657 plus benefits. Schneider was provided rehabilitation assistance, and he returned to work with Arrow Tank in a light duty capacity on September 24, 1990. Later, however, it became apparent his work injury precluded a return to pre-injury employment duties; and when Arrow Tank had no permanent light duty work available, in March 1991, Schneider's employment there ended.
Rehabilitation efforts then focused on a search for alternate employment. In July 1991, Schneider obtained an assistant management trainee position with Domino's Pizza at $5.25 an hour, but maintaining sufficient hours of work and job security became a problem. By April 1992, Domino's had reduced Schneider's hours, and he was moving among three different "corporate" Domino's outlets to "get in" enough hours of work. Schneider contacted his QRC about the possibility of retraining or "schooling" but ultimately elected to take an assistant manager position in an independent, franchise Domino's Pizza outlet in Owatonna rather than pursue retraining.
Schneider was 33 years old at the time, had a GED, and an employment history that consisted primarily of welding and labor-type work. His QRC felt that "with [work] restrictions and without specialized training," it would be difficult to find jobs that would come close to Schneider's pre-injury wage. Schneider's general aptitude test battery (GATB) scores fell into the average range, and in early 1991, Schneider was not interested in vocational school.
By the date of hearing, Schneider was earning $5.75 an hour. While employed as a "corporate" Domino's Pizza employee, Schneider did not have the same fringe benefits as he did as a union welder, but he was provided health and disability insurance. As a Domino's franchise employee, he did not even have the insurance benefits.
Schneider's QRC felt that as of November 1991, absent further training, Schneider was limited to entry-level wages. Additional education would be necessary to move him into a management position. While Schneider had the skills to complete a 2-year community college program, though "borderline," his QRC thought it was a possibility if he was sufficiently motivated.
Having been served with notice of MMI on October 1, 1991, Schneider claimed economic recovery compensation [ERC] for a 19% whole body impairment on ground his post-injury employment had not met the criteria of Minn.Stat. § 176.101, subd. 3e(b). Arrow Tank and its workers' compensation liability carrier, Western National Mutual Insurance Company, who had tendered payment of ERC under section 176.101, subdivision 3t(b), claimed an overpayment, contending that Schneider, at most, was entitled to impairment compensation for a 10.5% impairment.
The compensation judge awarded economic recovery compensation for a 10.5% impairment, finding that "the employment in the fast food restaurant at Domino's was not employment as close as possible to the employee's previous earning capacity." The compensation judge explained that the post-injury employment was "subject to fluctuations and did not provide the employee with any type of permanent work," did not provide the same fringe benefits and offered little opportunity for advancement. The compensation judge also thought formal retraining ought to have been at least looked at in that "employee has not reached a point where he is able to say that he definitely would forego considering retraining for advancement." The Workers' Compensation Court of Appeals reversed and awarded a credit to Arrow Tank/Western National for overpayment, deciding the evidence did not support the compensation judge's findings where "employee was employed by Domino's continuously from July of 1991 up to the time of trial in January 1993," where "there is no requirement that a post-injury job offer the same fringe benefits as a pre-injury job" and in any event employee had health benefits as well as a paycheck while working as a "corporate" employee within 90 days of MMI, and where the "prospects for retraining did not appear very good * * *." Schneider v. Arrow Tank Engineering, 49 Minn. Workers' Comp. Dec. ___, slip op. at 5 (WCCA, filed August 4, 1993).
Whether post-injury employment meets the criteria of Minn.Stat. § 176.101, subd. 3e(b) is for the compensation judge to resolve as factfinder. See Jerde v. Adolfson and Peterson, 484 N.W.2d 793, 795 (Minn. 1992). While in reviewing the findings of the compensation judge, the WCCA is required to look at all the evidence, it is to uphold findings based on conflicting evidence or evidence from which more than one inference might reasonably be drawn. Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 59-60 (Minn. 1984). In this case, there was conflicting evidence with respect to whether retraining would even be successful, but the compensation judge thought it ought to be explored and this was supported by evidence that Schneider had the skills to complete an appropriate training program if interested and that further training would enhance the opportunity for advancement. Likewise, with respect to the permanency of post-injury employment, while it is true Schneider had been "continuously employed" in the Domino's Pizza business generally, the compensation judge drew the inference that, at least during the 90 days following MMI, work as a "corporate" employee was impermanent; and this was supported by testimony that Schneider had to work at three Domino's outlets, that terminations were common, and that to avoid some of these problems, he later took a similar position at a franchise outlet even though he had to forgo health benefits. It seems to us the compensation judge's findings and determination were supported by substantial evidence in view of the entire record and should have been affirmed. See Hodge v. Hodge Const., 376 N.W.2d 694, 697 (Minn. 1985). We therefore reverse the decision of the WCCA and reinstate the decision of the compensation judge.
Employee is awarded $400 in attorney fees.
Reversed and decision of compensation judge reinstated.