Vocational: Return to Work Matters: Employability

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 Co. of North America, 2000 MT 216N (unpublished – nonciteable opinion.) In an unpublished decision, Supreme Court affirmed WCC determination that claimant's rehabilitation plan was not reasonable in light of substantial evidence suggesting the plan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.
Larson v. Cigna Ins. Co., 276 Mont. 283, 915 P.2d 108 (1996) (Larson II) Where 58-year old former laborer faced significant barriers to employment given his light duty restrictions, did not have experience in some identified jobs, and did not receive rehabilitative services, and where insurer’s vocational expert failed to identify specific jobs available to claimant, claimant was permanently totally disabled (Workers’ Compensation Court reversed).
 
MONTANA WORKERS' COMPENSATION COURT DECISIONS

Wilson v. Uninsured Employers' Fund [12/09/10] 2010 MTWCC 33 The Court concluded that Petitioner did not have a reasonable prospect of physically performing regular employment where Petitioner suffered from “near-constant and high levels of pain” along with dysthymic disorder a vocational rehabilitation counselor testified that Petitioner was not hirable, and doctors opined that Petitioner was, at best, highly unlikely to obtain competitive employment and would be unable to carry out gainful employment on a reasonably continuous basis without better pain control.

Schoeneman v. Liberty, 2007 MTWCC 28 It would seem axiomatic that "released to return to work in some capacity" must mean at least some capacity to work in the practical sense and not merely the hypothetical sense. In the present case, I am hard-pressed to consider a claimant to have been released to work in some capacity when he is not at MMI, cannot return to his time-of-injury job, and there exists absolutely no evidence that any job exists that he may perform in his present physical and vocational condition.
Schoeneman v. Liberty, 2007 MTWCC 28 The public policy of the WCA is to provide benefits to injured workers at a reasonable cost to employers, and wage-loss benefits should bear a reasonable relationship to actual wages lost as a result of a work-related injury. § 39-71-105(1), MCA. Section 39-71-608, MCA, is designed to be advantageous to both injured workers and insurers, as it allows insurers to pay benefits under a reservation of rights, giving insurers ample time to investigate the merits of a claim without unduly delaying an injured worker's receipt of benefits. Sections 39-71-608, -609, and -701, MCA, contemplate a claimant who is employable in the sense that a job exists which the claimant is physically and vocationally qualified to perform.
Benhart v. Liberty Northwest [01/05/07] 2007 MTWCC 3 Petitioner suffered from Hepatitis C which significantly worsened after his industrial injury. Without reaching the issue of whether the worsening of Petitioner’s Hepatitis C can be taken into account in determining whether he is entitled to PTD benefits, the Court determined that Respondent failed to prove that in light of his industrial injury alone, Petitioner would have had a reasonable prospect of physically performing regular employment as contemplated by § 39-71-116(24), MCA.
Benhart v. Liberty Northwest [01/05/07] 2007 MTWCC 3 Petitioner is not employable where Petitioner’s treating physician opined that Petitioner’s condition at the time of his industrial injury made his prospect of returning to work guarded, and further opined that, taking into consideration Petitioner’s inability to tolerate car travel, Petitioner possibly could not maintain even part-time employment. Although the physician suggested Petitioner attempt to do so on a trial basis, Petitioner’s subsequent health problems made a trial-basis attempt impossible.
Peterson v. MSGIA [04/07/06] 2006 MTWCC 14 In spite of signing his “approval” to the five job analyses, Petitioner’s doctor consistently and concurrently opined that Petitioner’s overall health would preclude him from successfully returning to the workforce, and this Court concludes Petitioner is not employable in the jobs which Respondent has identified.
Peterson v. MSGIA [04/07/06] 2006 MTWCC 14 Petitioner suffers from a compensable occupational disease in his right shoulder which led to permanent lifting restrictions after he attained MMI. Petitioner’s other disabilities, including his nonwork-related uncontrolled diabetes, must be taken into consideration in evaluating his ability to work.
Peterson v. MSGIA [04/07/06] 2006 MTWCC 14 While benefits may be terminated when a worker has been released to work, there must be some realistic chance that the worker can perform the jobs for which he was approved. The Court may take such factors as intelligence, skills, and abilities into account in considering whether a claimant has a reasonable prospect of regular employment in the identified position. Palmer v. Home Ins. Co., 1999 MTWCC 42, ¶¶ 44, 48. Petitioner spent twenty years working as a school custodian. The record demonstrates he lacks the social skills, education, and training to perform two customer service positions identified by the vocational rehabilitation counselor as requiring the same or lesser skills as Petitioner possesses.
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.
Crowell v. State Fund [4/14/99] 1999 MTWCC 27 Even if claimant may be able to perform some employment after work hardening and training, he is nevertheless permanently totally disabled where evidence indicates he would not in fact be hired for any employment. For a claimant not to be permanently totally disabled, the statutes requires the existence of specific jobs for which claimant is qualified and competitive. Jobs for which he is theoretically qualified, but not competitive, do not argue against permanent, total disability status.
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.
Bartels v. State Fund [8/17/98] 1998 MTWCC 62 The Court finds PTD a 45-year old mill operator who suffered a closed head injury at the age of 39 and has not since worked. Given the impact of the head injury on claimant's pre-existing limited intellectual and cognitive abilities and hysterical personality tendencies, he presently has no prospect of regular employment. The Court notes that claimant was able to obtain and keep employment prior to the injury, but since the injury has not worked, other than through an on the job training program, which was ultimately not successful. The Court rejects the insurer's contentions claimant is not credible and is deliberately malingering. No credible expert has rendered that opinion. The Court's own impression of claimant through observations of his testimony at trial and review of the record is that claimant's bizarre behavior and incredible statements are a product of his personality and circumstances, including the aftereffects of the injury, and are not premeditated. Despite the PTD finding, the Court believes that with significant assistance, claimant could once more become employable, as suggested by his improvement during a 1993-1994 rehabilitation program.
Derlatka v. Pacific Employers' Ins. Co. [7/20/98] 1998 MTWCC 57 Mill worker who received surgery for elbow problems (medial epicondylitis) following mill closure was entitled to temporary total disability following surgery and before MMI even though he performed some work for his daughter's cleaning service prior to MMI. The Court was not persuaded claimant's work for his daughter proved he was able to work in the labor market prior to MMI. He was not entitled to TTD benefits, however, on the dates he actually worked for his daughter.
Bratcher v. Liberty Northwest Ins. Corp. [10/21/97] WCC No. 9704-7741 Former parts-runner for auto parts stores was not able to return to time of injury job after compensable car accident where she could no longer lift over fifty pounds. Although claimant returned to work as housekeeper earning $5.25 per hour, she was not entitled to PPD benefits for wage loss where she is "qualified to earn" at least $6.25 an hour, her time of injury wages. §39-71-703(5)(c), MCA (1995). Claimant has a high school education, a stable work history, and some experience dealing with customers in person and on the phone. She is qualified for and competitive for positions as receptionist or telemarketer paying $6.50 per hour and more. Such positions are and have been available in her area since her time of injury.
DesJardins v. Liberty Northwest Ins. [9/12/97] 1997 MTWCC 50 A 56-year old laborer found permanently totally disabled where both lay and medical witnesses convinced Court claimant suffers from chronic back pain severely limiting his activities. None of the physicians questioned his reports of pain, although one opined he could work, albeit only in four-hour stints with time allowed for significant rest. Particularly when considered in light of vocational evidence, the medical evidence demonstrated claimant had "no reasonable prospect of physically performing regular employment" in any work that would be available to him. §39-71-116(19), MCA (1993). While he did continue to engage in knife-making activities, and sold or traded some knives, the Court was persuaded claimant had no reasonable prospect of earning any regular income through knife-making.
Ranes v. Lumbermens Mutual Casualty Co. [7/5/96] 1996 MTWCC 49 Where the evidence indicates claimant has carpal tunnel syndrome as the result of employment, and her unrebutted testimony indicates she cannot perform her time-of-injury job due to the condition, she is entitled to temporary total disability benefits until she reaches MMI and evidence is developed regarding the impact of her condition on her employability.

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.