HENRIETTA L HINES, Applicant

FROEDTERT MALT, Employer

ZURICH AMERICAN INS CO, Insurer

An administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development issued a decision in this matter. A timely petition for review was filed.

The commission has considered the petition and the positions of the parties, and it has reviewed the evidence submitted to the ALJ. Based on its review, the commission agrees with the decision of the ALJ, and it adopts the findings and order in that decision as its own.

The findings and order of the administrative law judge are affirmed.

Dated and mailed February 19, 2008
hineshe . wsd : 175 : 9 ND 5.40, 5.41

/s/ James T. Flynn, Chairperson

/s/ Robert Glaser, Commissioner

/s/ Ann L. Crump, Commissioner

The employer asserts in its petition for commission review the administrative law judge erred in determining the applicant's request for retraining benefits pursuant to Wis. Stat. § 102.43(5) and § 102.61 beyond 80 weeks is granted. The employer contends the applicant was in violation of Wis. Stat. § 102.61(1m)(d) which provides that if an employee received services from a private rehabilitation counselor and later receives similar services from the department without the prior approval of the employer or insurance carrier, the employer or insurance carrier is not liable for temporary disability benefits or for travel and maintenance expenses.

In this case the evidence indicates that the applicant was referred to the Division of Vocational Rehabilitation to determine her eligibility for vocational retraining services. The DVR notified the applicant that it lacked funding to provide services to her and placed the applicant on a waiting list. The applicant, pursuant to the provisions under Wis. Stat. § 102.61, was put on a list for private rehabilitation counselors and she elected to work with the private counselor, Mr. Modder. Mr. Modder developed a plan for the applicant to obtain a two-year associate degree as a dietetic technician at Milwaukee Area Technical College. Prior to beginning the course of study she was notified by the DVR that it had obtained funding to provide services to her and subsequently created an individual training plan identical to the one created by Mr. Modder.

The commission does not find that this situation falls under the definition of receiving services from a private rehabilitation counselor as defined under Wis. Stat. § 102.61(1m)(d). The footnote to that section provides that the insurer's liability cannot exceed what it would have been if the private counselor's plan had been completed. However, in this case DVR's plan was exactly the same as the private counselor's plan. The administrative law judge appropriately noted that the DVR essentially adopted the entire private plan and therefore it was not established that there were any additional weeks included in the DVR plan. The commission does not find that in this situation the applicant was required to get any additional approval to follow the DVR plan since there were no additional services provided.

The commission also finds that the applicant's request for further retraining, maintenance, and travel expense beyond 80 weeks is reasonable. It is true the applicant has taken some elective classes as well as some remediation classes, and in other instances has had to drop classes rather than fail. The employer contended the applicant failed to complete the two-year program on time because she was not diligent in pursuing her degree and many of the courses she took did not apply to her degree. However, the applicant has continued to make satisfactory progress to obtain her two-year associate degree. The commission credits the applicant's testimony that she is making her best effort to complete the classes as she is able to. The applicant has been out of the academic setting for more than 30 years and she admitted that she needed remedial work. The private counselor also admitted that the applicant required significant remediation in the area of reading and math. The evidence indicates the applicant has taken classes in remedial math as well as reading.

In addition, Ms. Nelson testified that it is not unusual for a returning student to have to drop classes and then return to repeat the classes in order to successfully complete them. Ms. Benz, the program director for the dietetic technician program, indicated that the applicant's actions in dropping the classes and then taking classes out of sequence best allows her to complete the program. The commission agrees with the administrative law judge that the applicant is not acting in bad faith to extend the program and has been diligent in attending classes and taking a full load as required by the DVR and for financial aid. The commission therefore finds that the applicant's request for further retraining beyond 80 weeks is reasonable and the applicant was appropriately awarded retraining benefits from June 12, 2006 through June 30, 2006, and August 28, 2006 through December 19, 2006, and from January 18, 2007 through May 18, 2007. The employer and insurance carrier shall remain liable for weekly rehabilitation benefits pursuant to Wis. Stat. § 102.61 as long as the applicant is a student in good standing in the dietetic technician program authorized by the department.

cc:
Attorney Thomas Domer
Attorney Stanley Lowe

Appealed to Circuit Court.  Affirmed, August 20, 2008. 

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