39-71-2001, MCA

[1991] 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 Co. of North America, 2000 MT 216N (unpublished – nonciteable opinion.) In an unpublished decision, Supreme Court affirmed WCC determination that claimant's rehabilitation plan was not reasonable in light of substantial evidence suggesting the plan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.

[1991] 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.
[1991] 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.
[1991] 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.
[1991] 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.
[1991] Eastman v. Ins. Co. of North America [7/29/99] 1999 MTWCC 46 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. Declining to follow reasonable vocational advice offered through the insurer, claimant enrolled in and completed a two year major appliance/HVAC program, which led only to jobs 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.

[1993] 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.

[1993] Huffman v. Twin City Fire Ins. Co. [11/16/98] 1998 MTWCC 83 The fact that a claimant has returned to a job other than the time-of-injury job upon reaching MMI does not necessarily terminate the claimant's eligibility for rehabilitation benefits where the evidence indicates claimant has in fact suffered a wage loss. While the legislature intended a quick return to work, that does not foreclose entitlement to rehabilitation benefits without consideration to whether retraining will improve claimant's position in the job market, even though he might be able to obtain some employment without retraining. Denying rehabilitation benefits to disabled workers who find immediate employment upon reaching MMI would discourage an early return to work and would force workers to remain idle in cases where the insurer disputes their entitlement to rehabilitation benefits.
[1993] Gates v. Liberty Northwest Ins. Co. [2/13/96] 1995 MTWCC 114A Designation of a vocational rehabilitation provider under section 39-71-2001, MCA (1993) does not necessarily mean particular benefits will flow to claimant, but is the first step necessary if there is "a dispute as to whether an injured worker can return to the job the worker held at the time of injury." Payment of rehabilitation benefits commences after filing of the rehabilitation plan with the DOL.
[1993] Gates v. Liberty NW Ins. Co. [12/29/95] 1995 MTWCC 114 Where a worker does not immediately return to work, the rehabilitation requirement of section 39-71-2001, MCA, must be met before any determination is made regarding claimant’s post-injury wages.
[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 when 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.
[1993] 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).
[1991] Gjerde v. Employers Ins. of Wausau [12/09/94] 1994 MTWCC 111 Considering claimant’s age, education, training, work history, residual physical capacities, and vocational interests, his desire for two years of rehabilitation benefits to obtain certification in computer programming and business management at a technical college is not a reasonable vocational goal that would significantly enhance his earning potential requiring the insurer to approve his vocational plan, which was not approved by a vocational counselor. Claimant has already had two years of schooling and failed to diligently pursue the career for which he prepared; his motivation and follow-up are questionable.