Dahl v. Rice County, et. al, No. WC17-6093 (W.C.C.A. March 5, 2018)
Peter Dahl (“employee”) was employed by Rice County (“employer”) as a deputy sheriff from 1992 until 2006. He sustained a permanent low back condition as a result of four admitted work injuries. His employment ended as a result of these injuries. His extensive treatment included two low back fusion surgeries in 2006 and 2009. He underwent a functional capacity evaluation (“FCE”) in 2013 which resulted in permanent restrictions. According to the FCE report, the employee was able to work within a light duty physical demand level.
The employee held numerous jobs, typically working for less than his average weekly wage on the date of injury, from 2006 through the date his claim went to hearing in 2017. These positions occasionally required extended driving and other activities beyond his restrictions. Some of these positions required knowledge and skills beyond his capabilities. The employee taught at Dakota County Technical and Community College as an adjunct contractor since 2002. He testified that he taught approximately 25 days per year and earned $5,000.00 to $6,000.00 but has earned as much as $10,000.00.
QRC Frank Samlaska began working with the employee in 2006, after his employment with Rice County ended. In the spring of 2016, after ten years of rehabilitation and job placement services, QRC Samlaska developed a retraining proposal. He proposed that the employee obtain a three-year teaching degree at the University of Mankato, with an occupational goal of becoming a high school teacher. The employer and insurer objected. An administrative conference was held, and a decision denying the retraining proposal was issued. The employer and insurer and the employee filed a request for formal hearing. During this time, QRC Samlaska amended the rehabilitation plan, including a revised goal of the employee obtaining a master’s degree in law enforcement for the employee to be an instructor at a community college. This was later amended again, with a revised goal of the employee becoming a post-secondary criminal justice and law enforcement teacher. In QRC Samlaska’s opinion, further job placement or skills enhancement would not be appropriate. He stated that he believed the employee would succeed in the retraining plan and, based upon a labor market survey and employment projections, he was likely to be hired following the retraining. He also stated that although he was frustrated with the employee’s lack of job logs at times, the employee reasonably cooperated with rehabilitation and there was no barrier to rehabilitation.
The employee also obtained a report from independent vocational examiner Ken Askew. Mr. Askew testified that the employee’s was an appropriate retraining candidate and that the plan was appropriate based on the Poole factors. The four Poole factors are: 1.) the reasonableness of retraining compared to other job placement activities; 2) the likelihood that retraining will produce an economic status as close as possible to that which the employee would have enjoyed without the disability; 3) whether retraining is likely to result in reasonably attainable employment; and 4) the likelihood of success in the program. He believed the employee had made a good faith job search and had been unsuccessful. In his opinion, retraining was likely to restore the employee’s economic status.
Independent vocational examiner Kate Schrot issued two reports on behalf of the employer and insurer. In her opinion, there was not an adequate number of teaching positions open that would interest the employee. She was also concerned that he expected to each a law enforcement related subject, which she believed was unrealistic. She also did not believe that a teaching position would necessarily restore the employee’s economic status. In her opinion, his job search was not diligent and he did not cooperate with rehabilitation. Ms. Schrot was deposed following the hearing and a transcript of her testimony was submitted into evidence.
The employee’s claim seeking approval of the proposed training plan came before Compensation Judge Adam Wolkoff on March 30, 2017. The employee clarified that he was claiming the retraining request initially set forth in the spring of 2016, which included the goal of obtaining a three year teaching degree and becoming a high school teacher. The employee and Mr. Askew testified at hearing. In an off the record discussion at hearing, it was determined QRC Samlaska may have job logs and other records in his file that the parties had not seen. On the record, counsel for employer and insurer objected to the admission of the documents and requested that the hearing proceed. Judge Wolkoff determined the evidence should be considered but it would be prejudicial to ask the employer and insurer to quickly review the evidence and proceed with hearing that day. He set a second hearing date, where there would be no live testimony. Rather, he instructed the parties to submit the records identified by QRC Samlaska, the deposition testimony of QRC Samlaska and Ms. Schrot, the deposition testimony of the employee should the employer and insurer decide to depose him, and written closing arguments. Counsel for the employer and insurer clarified that he may choose to submit a supplemental report from Ms. Schrot rather than taking her deposition and that QRC Samlaska would be deposed first. Counsel for the employee was then instructed that should the issue of whether he wanted to depose Ms. Schrot in the event of a submission of a supplemental report in lieu of a deposition arise, a special term conference would be held. Judge Wolkoff acknowledge that the process was unconventional but fair. No objection to the process was put on the record.
The parties submitted additional evidence, including deposition transcripts of QRC Samlaska and Ms. Schrot. The record closed on May 30, 2017. Judge Wolkoff concluded in his Findings and Order dated June 30, 2017, upon application of the Poole factors, that the employee was a candidate for retraining and that the retraining plan was reasonable. The employer and insurer appealed to the Workers’ Compensation Court of Appeals (“W.C.C.A.”), arguing that the judge’s determination that the employee was a candidate for retraining and that the retraining plan was reasonable was not supported by substantial evidence and that there were procedural errors committed by the compensation judge.
The W.C.C.A. found that there was substantial evidence to support the compensation judge’s approval of the proposed retraining plan based on the testimony and opinions of QRC Samlaska and Mr. Askew. The W.C.C.A. also found that the compensation judge’s admission of the records that were disclosed at the hearing, continuation of the hearing and consideration of the employer and insurer’s expert witness by deposition rather than live testimony was not an abuse of discretion. The W.C.C.A. noted that evidentiary rulings are within the sound discretion of the compensation judge and that the inclusion of evidence is favored in workers’ compensation hearings. The judge also proceeded in a fashion he reasonably believed would provide the parties an opportunity to consider and rebut the evidence. There was no objection on the record to ending the live hearing and submission of deposition testimony of a later witness in lieu of live testimony before the judge. The W.C.C.A. found no basis for reversal or remand.