Benefits: Rehabilitation Benefits: Rehabilitation Options

Bird v. City of Lewistown [11/02/95] 1995 MTWCC 89 DOL hearing officer misapprehended the evidence and applied inappropriate legal standard in determining that claimant could return to work in a related occupation suited to his education and marketable skills pursuant to option (c) of section 39-71-1012, MCA (1987-1989). The only evidence presented that claimant could return to work in a related occupation involved the single position of Street Maintenance Supervisor, but the evidence did not show that this job is typically available, as required by statute.

Elam v. State Compensation Ins. Fund [08/25/95] 1995 MTWCC 65 Substantial evidence supports DOL hearing officer’s determination that option (2)(d) of section 39-71-1012, MCA (1987), on the job training, is the first appropriate rehabilitation option for claimant. On appeal to the WCC, claimant emphasizes his testimony and that of the property manager where claimant tried to return to work about his pain and incapacity to perform the job requirements of airport parking lot attendant. But the record also contains testimony by a physical medicine specialist that claimant could perform the work despite his reported difficulties, as well as the hearing officer’s credibility determination that claimant’s perception of his disability was “to a great extent self-limiting and rather incredible.” Other testimony and documentation also demonstrates claimant’s hostility to physical evaluation and refusal to make reasonable effort to perform physical activities.