RODNEY H MCCULLOUGH, Applicant

MENARD INC, Employer

ZURICH AMERICAN INSURANCE CO, Insurer

An administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission agrees with the decision of the ALJ, and it adopts the findings and order in that decision as its own, except that it makes the following modifications:

1. On page 3 of the ALJ's decision, delete the second full paragraph, and insert:

"Two questions need to be answered: was the change from the business management program to the AODA social worker/counselor program appropriate; and should additional weeks for retraining be awarded."

2. In the last paragraph on page 3, delete "80" and substitute "40".

3. In the last sentence of the first paragraph of the ALJ's Order, delete "80" and substitute "40".

The findings and order of the administrative law judge, as modified, are affirmed.

Dated and mailed
September 28, 2011
mccullo . wmd : 101 : 5 ND6 6.42

BY THE COMMISSION:

/s/ Robert Glaser, Chairperson

/s/ Ann L. Crump, Commissioner

/s/ Laurie R. McCallum, Commissioner

The applicant was born in 1968. In April 1999, he began working for the employer, a home supply store, in Green Bay, at about $10 per hour. He held a variety of positions during his employment with the employer, starting as a stocker and subsequently working as an assistant manager. The applicant eventually became a "planogrammer" which involved setting up departments and training employees. While his average hourly wage was apparently only $10.90/hour, with bonuses, overtime, etc., his earnings on an annual basis exceeded $42,000. It was in his capacity as a planogrammer that the applicant was injured.

Specifically, the applicant sustained a conceded right knee injury on September 9, 2003, and eventually underwent two repairs and a re-anchor of the patellar tendon. Following a previous hearing, ALJ Larry Schifano found the applicant was left with permanent partial disability at five percent compared to amputation at the left knee. ALJ Schifano also credited work restrictions from a treating doctor that limited the applicant to five pound occasional lifting, no squatting or crawling, standing limited to two hours per day with breaks at least once an hour, and walking limited to an hour a day.

The applicant applied for services with DVR in June of 2005. In 2006, he began speaking with a DVR counselor about a retraining plan. He initially expressed an interest in counseling, specifically in an alcohol and other drug abuse (AODA) program, but opted for a business management program. The applicant required remedial coursework which he began in January 2007. After completing that first semester of remedial coursework, but before he began the actual business management coursework, the applicant amended his Individualized Plan for Employment (IPE) to change his long range employment and educational goals to be a social worker/AODA counselor.

The applicant then began in the social worker/AODA counselor program at Northeast Wisconsin Technical College (NWTC), summarized as follows:

Fall 2007--10 credits with a 3.7 GPA

Spring 2008--12 credits with a 3.75 GPA

Fall 2008--14 credits with a 3.9 GPA

In 2009, the applicant began taking coursework simultaneously at NWTC and the College of the Menominee Nation, summarized as follows:

Spring 2009--3 credits at NWTC with a 4.0 GPA
--15 credits at the College of the Menominee Nation with a 3.767 GPA

Fall 2009--6 credits at NWTC with a 3.5 GPA
--10 credits at the College of the Menominee Nation with a 3.6 GPA

Spring 2010--9 credits at NWTC with a 3.0 GPA
--6 credits at the College of the Menominee Nation. (November 2010 Transcript, p. 6, 27)

Documents introduced into the record by the employer and its insurer (collectively, the respondent) indicate that the median starting salary six months after graduation from the business management program at NWTC is about $30,000. The median salary six months after graduation for someone graduating from the AODA counselor program at a technical school is slightly lower at $28,500.

Social work graduates with four-year degrees have an average salary of about $30,600. See Exhibit 6. On the other hand, according to the applicant's vocational expert, Jeanne Krizan, licensed social workers who work as AODA counselors with a Bachelor's Degree can earn up to $43,000 (at least the State of Wisconsin, Department of Corrections offers jobs in that salary range.) See Exhibit B, report of Krizan, page 4. These figures are in line with the testimony of the applicant's DVR counselor, Sandra Valentine (March 2010 Transcript, pages 15-16, 24), though Ms. Valentine indicates that in order to earn wages at $40,000 or more, a Master's Degree may be required.

Finally, the respondent's vocational expert, Richard Armstrong, does suggest that if the applicant had continued with the business management program at a technical college, he could have eventually obtained a job in occupations such as a purchasing agent, advertising manager, human resource manager and community service manager at the rate of between $23 and $26 per hour, which would have exceeded his pre-injury annual salary as a planogrammer with the employer. See Exhibit 1. On other hand, DVR counselor Valentine did not think the business management program would restore his earning capacity to pre-injury levels. (See May 2010 Transcript, p.24).

In his prior, unappealed decision, ALJ Schifano held the applicant was eligible for 80 weeks of vocational retraining benefits under Wis. Stat. § § 102.43(5) and 102.61. Indeed, the department and commission's authority to deny vocational retraining benefits during the first 80 weeks of retraining is significantly limited by Massachusetts Bonding & Ins. Co v. Industrial Commission, 275 Wis. 505, 512, 82 N.W.2d 191 (1957). At issue now is the applicant's claim for an additional 80 weeks of vocational retraining benefits to allow him to finish his chosen vocational rehabilitation plan.

While the commission's discretion in awarding vocational retraining benefits for the first 80 weeks of vocational retraining is limited under Massachusetts Bonding, Wis. Stat. § 102.43(5) specifically provides for a limitation on the temporary disability compensation paid during vocational retraining to the first 80 weeks unless the Department of Workforce Development (or the commission on review) determines that additional training is warranted. Regarding vocational rehabilitation benefits after 80 weeks, Wis. Admin. Code § DWD 80.49 provides:

DWD 80.49(3) 80-WEEK RULE. Extension of vocational rehabilitation benefits beyond 80 weeks may not be authorized pursuant to s. 102.61 (1) or (1m), Stats., if the primary purpose of further training is to improve upon preinjury earning capacity rather than restoring it.

In prior decisions, the commission has noted that its focus in claims for vocational retraining benefits is on restoring the worker's earning capacity, not on restoring his pre-injury wages. The commission has also noted that even a program aimed at restoring earning capacity might result in an actual improvement in earning capacity, but that does not mean the primary purpose of the retraining program is to increase earning capacity. See, for example, Diane Kelly v. Mariner Post Acute Network, WC claim no. 2000-058871 (LIRC May 27, 2004) (citing Beloit Corporation v. LIRC, 152 Wis. 2d 579, 590-91 (Ct. App. 1989)). Further, the law does not provide any inherent prohibition on pursuing a four-year degree while receiving compensation for vocational retraining under Wis. Stat. § § 102.43(5) and 102.61. Indeed, retraining that included a four-year degree was approved in Beloit Corporation.

In this case, the respondent does not claim that the retraining as an AODA counselor and a bachelor's degree in social work at a four-year college would enhance or increase the applicant's pre-injury earning capacity. Rather, the respondent is contending that the applicant could have received more appropriate training more quickly and at less expense by taking the business management program at NWTC. Indeed, the respondent questions whether retraining as a social worker/AODA counselor will even restore the applicant's earning capacity. It argues that the commission should not approve additional weeks of retraining.

Unquestionably, the applicant is getting good grades. He also has been diligent in taking courses when one considers his work at both NWTC and the College of the Menominee Nation. Of concern, however, is the applicant's future plans. At the time of the hearing, he had not yet obtained his associate degree at NWTC for the AODA counseling. He apparently needs to complete one class in math and finish an internship. He thinks 72 or possibly 80 credits from his current training will transfer to the University of Wisconsin-Green Bay (UWGB) where he intends to pursue the four-year degree. However, he needs a total of 120 credits to graduate from UWGB. He had not yet applied at UWGB at the time of the hearing. On the other hand, in light of his grades at NWTC and College of the Menominee Nation, it seems likely he will be able to get accepted to and complete his education at UWGB.

The commission cannot credit the opinion of the respondent's vocational expert Armstrong that a two-year business degree from a technical college would restore the earning capacity the applicant had before his injury when working as a planogrammer, given his age (43) and essentially sedentary work restrictions. In light of the credible testimony of DVR counselor Valentine and the opinion of applicant's vocational expert Krizan, the commission is persuaded that retraining as a social worker/AODA counselor is a reasonable course toward restoring his earning capacity. It therefore concludes that additional retraining benefits beyond the first 80 weeks awarded by ALJ Schifano are warranted under the facts of this case.

Still, given the uncertainty of the applicant's future plans to transfer and begin coursework at UWGB, the commission declines to authorize an additional
80 weeks at this time. Rather, the commission has modified the ALJ's decision to award only 40 weeks of additional vocational retraining benefits presently, reserving jurisdiction to permit an ALJ to determine whether extension of additional benefits is warranted after the end of those additional 40 weeks.

cc: Attorney Thomas Siedow
Attorney Cynthia K. Thurston

Appealed to circuit court.  Affirmed May 16, 2012.  Appealed to court of appeals.

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