Varda v. Northwest Airlines Corp., No. A04-1707.

• Decision Date: 24 February 2005
• Docket Number: No. A04-1707.
• Citation: 692 N.W.2d 440
• Parties: Tanya L. VARDA, Relator, v. NORTHWEST AIRLINES CORP., and Liberty Mutual Insurance Co., Respondents.
• Court: Minnesota Supreme Court

692 N.W.2d 440

Tanya L. VARDA, Relator, v. NORTHWEST AIRLINES CORP., and Liberty Mutual Insurance Co., Respondents.

No. A04-1707.

Supreme Court of Minnesota.

February 24, 2005.

Thomas R. Longfellow, Stacie R. McBride-Cox, St. Paul, MN, for Relator.

Kathy A. Endres, Susan M. Stepaniak, Aafedt, Forde, Gray & Monson, Minneapolis, MN, for Employer and Insurer-Respondents.

Considered and decided by the court en banc without oral argument.

OPINION

HANSON, Justice.

This workers' compensation matter comes before this court by certiorari upon the relation of employee Tanya L. Varda to review a decision of the Workers' Compensation Court of Appeals (WCCA), reversing the compensation judge's award of retraining benefits under Minn.Stat. § 176.102 (2004). Although the compensation judge awarded benefits based on a 4-year program at the College of St. Scholastica that would lead to a bachelor of arts degree in nursing, the WCCA substituted an award of retraining benefits based on a 2-year program at Hibbing Community College that would lead to an associate in science degree in nursing. Varda asserts that the compensation judge's award was supported by substantial evidence and that it was error for the WCCA to modify it. We affirm the decision of the WCCA.

Tanya Varda is a 30-year-old high school graduate who obtained a 2-year degree in sales and marketing from Range Technical College. She is married and has three children ranging in age from approximately 1 year to 6 years old. She lives in the Chisholm/Hibbing area with her family, and her stated intent is to stay in that area to raise her children.

In March 1996, Varda started working as a reservations specialist at a Northwest Airlines reservations center in Chisholm. The nature of her work required continuous computer keyboarding. For at least 9 months each year, she worked fulltime and earned $12.73 an hour. For no more than 3 months each year, she worked as a substitute supervisor, earning $19.86 an hour.

As a result of her employment, Varda sustained compensable injuries in the nature of bilateral carpal tunnel syndrome with ulnar nerve involvement that culminated in disability as of August 1, 2000. She has permanent work restrictions of no more than 20 minutes of keyboarding per hour, no repetitive use of her hands and wrists and no repetitive extension of her arms. She is limited from lifting 20-25 pounds frequently and 50 pounds occasionally. Because Northwest Airlines was unable to accommodate these work restrictions, Varda's employment was terminated in March 2002.

On February 20, 2003, Varda proposed a retraining plan consisting of 4 years of college coursework at the College of St. Scholastica in Duluth, from September 1, 2003, through May 31, 2007, leading to a bachelor of arts degree in nursing. The estimated cost was $144,388 ($80,828 in tuition, $5,000 in books/supplies, $34,560 in mileage, and $24,000 in custodial daycare).

Varda also considered obtaining a 2-year degree from the Hibbing Community College that would qualify her to seek licensure as a registered nurse (RN). The only formal retraining plan submitted for consideration was the 4-year plan through St. Scholastica, but there was evidence that the estimated cost of the 2-year program at Hibbing Community College would be $9,500 ($7,200 in tuition, $1,500 in books/supplies, and $800 in miscellaneous items). Varda decided to seek approval for the 4-year degree.

At the hearing on the retraining dispute, Kandise Garrison, a vocational expert whom Varda retained to assess the proposed retraining plan, testified that a bachelor's degree would qualify Varda for a greater number of positions. She said that a 2-year program trains staff nurses, which represent 60% of the positions available for nurses, whereas a 4-year degree is required for the other 40% of nursing positions. Garrison testified that Varda had some work experience as a manager, and that a 4-year degree is required to secure a manager's position in nursing. Finally, she testified that St. Scholastica placed 100% of its nursing graduates with a typical starting salary of $45,000. Garrison compared this to Varda's earning capacity before her disability, but only with respect to her occasional supervisory work, which would have yielded about $40,000 a year had the work been available for a full year.

Garrison did not explicitly testify that the 2-year degree would be an unsuitable retraining program. She agreed that Varda likely would succeed at completing the Hibbing Community College program and obtaining employment. She stated that the starting wage for an RN with a 2-year degree would be $20.55 an hour.

Garrison did testify that Varda's work restrictions would preclude her from performing some of the nursing jobs for which a 2-year degree is sufficient. She stated that some nursing homes and hospitals require nurses to be able to lift more than 50 pounds, and said "I think she is precluded from that very small number of jobs that would require 60 pounds." She also testified that Varda would be precluded from nursing jobs that "require people to key in data all day or talk on the phone all day and basically desk jobs or data entry jobs, claim examiner jobs, * * * bill review jobs, * * *." She did not state what percentage of nursing jobs require that activity.

Jan Lowe, the vocational expert for Northwest and its insurer, testified that the 2-year program at Hibbing Community College was more appropriate. She said that her labor market survey showed little difference in terms of hourly earnings "for a 2-year versus a 4-year RN." Lowe said Hibbing Community College offers "a shorter program that would essentially get her to the same end, to an RN job, as would St. Scholastica." In looking at the total retraining plan, Lowe testified that it was "more economically reasonable to do the 2-year versus the 4-year plan, which requires a great deal of travel to and from Duluth without much cost benefit at the end of the program." Lowe noted that a number of health care facilities hired nurses with 2-year degrees who needed work accommodations.

The compensation judge approved Varda's retraining request, finding the 4-year program would "substantially increase her RN employment options"; the 2-year program would permit Varda to "perform the duties of a staff nurse, duties generally more taxing"; and "approximately 40% of all nursing positions are non-staff positions requiring a 4-year BA degree." The compensation judge summarized his conclusions as follows:

In spite of the substantial additional costs to be incurred[,] the Court finds it more reasonable, more appropriate for the employee to pursue the 4-year BA degree through the College of St. Scholastica rather than the 2-year alternative at Hibbing Community College. As indicated in the Findings above, the employee is faced with a substantial delay if in fact she were to attempt to enter the 2-year program at Hibbing Community College. Further [,] as indicated by Ms. Garrison, testifying on behalf of the employee, in all likelihood [the] 2-year program would require an additional half-year of schooling. Of more significance, however, is that without a BA degree, without the 4-year program[,] the employee is not eligible to become a public health nurse or a school nurse. In addition[,] without that 4-year degree the employee in all likelihood would not be eligible to apply for or hold a supervisory nurse position — a position which generally is less physically taxing than the duties performed by a staff nurse. This is of more than passing importance in light of the employee's rather substantial physical restrictions.

The compensation judge did not specifically address how Varda's restrictions might affect her qualifications for the 60% of nursing jobs that did not require a 4-year degree or determine that the 2-year program would not return Varda to the economic status she would have enjoyed without the disability.

On appeal, the WCCA reversed, concluding that the record as a whole did not support the award. The WCCA explained:

Certainly a 4-year degree may be "better," in terms of the number of employment opportunities, than the proposed 2-year alternative. Some nursing jobs do in fact require a Bachelor's degree, and some other nursing jobs may be inconsistent with the employee's lifting restrictions. However, in this case, the record simply fails to establish that the employee would gain any significant economic advantage by attending the 4-year program sufficient to outweigh the immense additional cost. This is especially true given that it is essentially uncontroverted that the employee will easily be able to obtain physically suitable work, as a[n] RN with a 2-year degree, at a wage comparable to a 4-year RN and at a wage that equals or exceeds her pre-injury wage, and given that there is no evidence that the employee can reasonably expect to obtain work in one of her areas of special interest.

Varda v. Northwest Airlines Corp., No. WC04-132, 2004 WL 2089585, at *6 (Minn. WCCA Aug. 11, 2004) (slip op. at 7). The WCCA concluded:

Because the record as a whole does not support the conclusion that the much more expensive St. Scholastica nursing program is reasonably required to restore the

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