Benefits: Rehabilitation Benefits: Rehabilitation Plan

Eastman v. Ins. Co. of North America, 2000 MT 216N (unpublished – nonciteable opinion.) In an unpublished decision, Supreme Court affirmed WCC determination that claimant's rehabilitation plan was not reasonable in light of substantial evidence suggesting the plan was unrealistic in that it would not train claimant for a position in which he was likely to obtain employment given the job market and his physical restrictions.

Reeves v. Liberty Mutual Fire Ins. Co., 275 Mont. 152 (1996) (No. 95-317)While section 39-71-2001(1), MCA (1993) encourages rehabilitation training for persons injured on the job, the statute does not obligate the insurer to pay for every rehabilitation plan which may be conceived by a qualified injured worker. Given vocational testimony about claimant’s poor prospects of breaking into a saturated counseling market, claimant’s own testimony limiting the type of work she would do, and evidence that she would not be paid more for some types of counseling work with a masters degree than with the degree she already possessed, the Workers Compensation Court correctly found that claimant failed to prove that her rehabilitation plan focusing on a masters in counseling had a reasonable expectation of improving her position in the job market.

Markovich v. Liberty Northwest [06/14/07] 2007 MTWCC 21 Petitioner is not entitled to further rehabilitation benefits beyond those which were enumerated in his signed vocational rehabilitation plan where the Court found that: Petitioner and Respondent developed a plan which they both found agreeable; Petitioner signed the plan and completed all the tasks to which he had agreed; and Respondent met the terms to which it had agreed.
Lion v. Montana State Fund [03/02/05] 2005 MTWCC 11 Where the claimant’s request for a particular plan has been refused, upon a petition for a Court order approving the plan, the claimant must prove that the plan will result in a reasonable prospect of regular employment.
Lion v. Montana State Fund [03/02/05] 2005 MTWCC 11 Under section 39-71-2001, MCA (1991), a prerequisite to rehabilitation benefits is certification by a vocational consultant that there is a reasonable prospect that the rehabilitation plan will lead to regular employment.
Lion v. Montana State Fund [03/02/05] 2005 MTWCC 11 Under section 39-71-2001, MCA (1991), rehabilitation benefits and plans are limited to a total of 104 weeks in duration.
Lion v. Montana State Fund [03/02/05] 2005 MTWCC 11 Under section 39-71-2001, MCA (1991), the claimant is entitled to only one rehabilitation plan. Where a plan has been adopted and completed, the claimant is not entitled to further rehabilitation benefits.
Thompson v. Liberty Northwest Ins. Corp. [6/12/02] 2002 MTWCC 34 Where a claimant and the insurer agree to a rehabilitation plan, the parties are bound by the plan. Claimant is not entitled to rehabilitation benefits not specified in the plan.
Eastman v. Ins. Co. of North America [7/29/99] 1999 MTWCC 46 Claimant did not prove entitlement to rehabilitation for any part of the two year major appliance/HVAC training he pursued following a back injury. Claimant declined to follow more reasonable vocational guidance offered by the insurer, but insisted in enrolling in and completing a program leading to jobs either not medically appropriate or not realistically available to him in Billings, where he unequivocally intended to remain. Claimant assumed the risk his program would be determined vocationally inappropriate and refused to reconsider the program despite the Court's initial findings after a first trial. Section 39-71-2001, MCA (1991) does not authorize a claimant to write his own rehabilitation plan and demand benefits in accordance with that plan.
Palmer v. Home Ins. Co. [7/21/99] 1999 MTWCC 42 A 46-year old laborer with sixth grade education and lower back injury was released to work in sedentary and light-duty jobs. Vocational Rehabilitation Provider identified three jobs as appropriate without further training or rehabilitation: small products assembler, keno caller, and telemarketer. Claimant agreed he could physically work as a keno caller or small products assembler if the jobs did not require much speed. Claimant's vocational expert raised questions about some jobs, and indicated claimant would at the least need considerable vocational assistance. Claimant failed to convince court he was PTD, but Court held that claimant's limited intelligence, skills, and abilities restrict his employability and that a trial period of employment, including special supervision and training, is necessary for him to have a reasonable prospect of employment. The rehab plan was insufficient in that it did not provide sufficient time for a realistic job search, a trial work period, or for training or assistance in new job. Further vocational assistance ordered.
Leastman v. Liberty Mutual Fire Ins. Co. [1/6/99] 1999 MTWCC 2 Claimants with permanent partial disability are entitled to a rehabilitation plan where statutory criteria are met, even if completion of the plan requires delay in return to work.
Leastman v. Liberty Mutual Fire Ins. Co. [1/6/99] 1999 MTWCC 2 Section 39-71-1006, MCA (1995) requires more than a theoretical exercise and recitation of job assessments to meet rehabilitation requirements. The statute requires a careful assessment of the worker's realistic and reasonable prospects for obtaining employment and a further assessment of the realistic wages he or she is likely to earn. That assessment must compare realistic job prospects and wages without further education or retraining with realistic job prospects and wages if the worker participates in retraining and/or further education which is consistent with his or her "age, education, training, work history, residual physical capacities and vocational interests." If there is a reasonable prospect that retraining or further education will result in significantly higher wages, then the plan must provide for such. Here, the analysis performed by the insurer's vocational consultants was inadequate, but the record leads the WCC to conclude claimant's plan for education in computer science will expand his job market and significantly increase his wages. Because the insurer's plans were inadequate, claimant will be allowed to proceed with his plan. 104 weeks of rehabilitation benefits were ordered, along with penalty and attorneys fees based on the insurer's unreasonable hardening of its position toward payment of any benefits after claimant refused to acquiesce to its inadequate plan.
Huffman v. Twin City Fire Ins. Co. [11/16/98] 1998 MTWCC 83 A 48-year old driver in the movie and television industry hurt his shoulder while working on the production of Lonesome Dove in Montana. Although he worked immediately after his injury at a minimal wage loss, the reduction in his lifting capacity from heavy to medium has caused him to lose the ability to work in higher paying jobs. Where he has proven a wage loss and suggested the possibility of retraining in other aspects of entertainment industry work, claimant may be entitled to rehabilitation benefits, but the insurer has not developed a rehabilitation plan and claimant has not provided details regarding a plan, most importantly, whether his suggestion is reasonable given his education and experience and likelihood of finding new work that would minimize his wage loss. Therefore, the matter is referred back to a rehabilitation provider for evaluation and development of a plan.
Gates v. Liberty NW Ins. Co. [2/13/96] 1995 MTWCC 114A Section 39-71-2001(3), MCA (1993), which requires that a worker unable to return to his time-of-injury job be provided eight weeks of rehabilitation benefits at a minimum, applies only when the worker cannot perform the job, not to situations where the worker is able to perform the job but it has been eliminated or filled by someone else.
Gates v. Liberty NW Ins. Co. [12/29/95] 1995 MTWCC 114 Where claimant has a wage loss, the insurer must immediately designate a rehabilitation provider who shall assist claimant in developing a rehabilitation plan in accordance with section 39-71-2001, MCA (1993).
Gates v. Liberty NW Ins. Co. [12/29/95] 1995 MTWCC 114  If a rehabilitation plan calls for immediate return to work, the time for measuring wage loss is at the time the eight weeks of rehabilitation benefits specified in section 39-71-2001(3), MCA (1993), are exhausted. If at that time the claimant has been unable to secure employment despite his best good faith efforts, his post-injury wage is zero and his entitlement to permanent partial disability benefits shall be computed accordingly. If a plan calls for retraining, then a reasonable time must be allowed for claimant to find work upon completion of the plan, at a minimum eight weeks, before wage loss is assessed.
Yarde v. Liberty Northwest [9/7/95] 1995 MTWCC 69 Where claimant’s ability to work in public settings was limited by her pre-existing allergies, her plan to retrain as a medical transcriptionist, a profession that can be pursued at home or in a non-public office, was reasonable and necessary as part of her rehabilitation following a back injury that prevented return to her time-of-injury job. Even though other jobs existed that she could perform without retraining, it was “hit or miss” whether she would be able to function in the public workplaces required by those jobs.
Reeves v. Liberty Mutual Fire Ins. Co. [06/09/95] 1995 MTWCC 44 Where the Court was not persuaded that claimant could successfully set up a private counseling practice, and she expressed distaste for working with the populations that would likely be involved in agency work, her request for rehabilitation benefits to pursue a master’s degree in counseling is not a reasonable plan requiring the insurer to pay rehabilitation benefits. Affirmed in Reeves v. Liberty Mutual Fire Ins. Co., 275 Mont. 152 (1996) (No. 95-317).