Vocational – Return to Work Matters: Retraining

MONTANA SUPREME COURT DECISIONS
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 Co. of North America, 2000 MT 216N (unpublished – nonciteable opinion.) In an unpublished decision, Supreme Court affirmed WCC determination that claimant's rehabilitation plan was not reasonable in light of substantial evidence suggesting the plan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.
 
 
MONTANA WORKERS' COMPENSATION COURT DECISIONS
Caldwell v. MACo Workers' Compen. Trust [07/07/10] 2010 MTWCC 24 Automatically terminating rehabilitation benefits upon an injured worker’s eligibility for retirement subverts the governmental objective of the workers’ compensation system set forth at § 39-71-105(3), MCA, since § 39-71-1006, MCA, already takes a worker’s age into consideration in forming a rehabilitation plan.

Caldwell v. MACo Workers' Compen. Trust [07/07/10] 2010 MTWCC 24Rehabilitation benefits are meant to assist only workers who will return to work.  Since § 39-71-1006, MCA, already takes the workers’ age into consideration to determine eligibility for benefits, the Court finds no rational basis for automatically terminating rehabilitation benefits upon retirement eligibility, pursuant to § 39-71-702, MCA.  This automatic termination bears no rational relationship to a legitimate governmental interest and violates equal protection as guaranteed by Art. II, § 4, Mont. Const.

Skiff v. Montana State Fund [03/06/09] 2009 MTWCC 8 The claimant rejected the vocational rehabilitation counselor’s proposal and failed to respond to the insurer’s request for input. Therefore, no vocational plan was developed. Without some sort of participation, feedback, or input from the claimant as to why he rejected the proposal, whether any part of the proposal was potentially acceptable to him, or what type of vocational retraining and future career options he might be willing to consider, the insurer could not attempt to develop a vocational rehabilitation plan, and therefore cannot be found unreasonable for failing to do so.
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 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 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.
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.