RALPH T ROTE, Applicant
FLINT SPECIAL SERVICES, Employer
CHEROKEE INSURANCE CO, Insurer
In January 2009, the applicant filed an application for hearing which alleged a right shoulder injury and claimed, among other things, compensation for vocational retraining. An administrative law judge (ALJ) for the Worker's Compensation Division of the Department of Workforce Development heard the matter on July 13, 2009.
Prior to the hearing, the employer and its insurer (collectively, the respondent) conceded jurisdictional facts, an average weekly wage of $733.13, and that the applicant conceded a compensable right shoulder injury on or about October 2, 2007. The respondent also conceded and paid periods of temporary disability and permanent partial disability at 20 percent compared to loss of the arm at the shoulder.
At issue before the ALJ, and now before the commission, is whether the applicant is entitled to compensation for vocational training under Wis. Stat. § 102.43(5) and 102.61. The ALJ issued his decision in the applicant's favor on August 19, 2009.
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 makes the following:
The applicant worked as a truck driver for the employer for about 10 years before suffering his conceded right shoulder injury. Following surgery for his shoulder, he was restricted from repetitive work above the right shoulder level (his treating doctor also set a lifting restriction to 40 pounds.) The employer has gone out of business, and therefore cannot provide work for the applicant within his restrictions.
The applicant applied for services with the Division of Vocational Rehabilitation (DVR), which accepted him for services (exhibit D), but put him on a waiting list. Under Wis. Stat. § 102.61(1m) and Wis. Admin. Code DWD 80.49, an injured worker may seek services from approved, private counselors where, like here, DVR is unable to provide the services itself. In this case, the applicant sought rehabilitative services with Michele Albers, a private rehabilitation counselor who is on a list of approved private rehabilitative counselors.
Ms. Albers prepared a "proposed vocational rehabilitation" plan dated June 29, 2009. Specifically, Ms. Albers recommended a course of study that includes an associate degree in business management and a diploma as a computer support technician. In explaining why she recommended both programs Ms. Albers noted that a computer support technician diploma may be obtained quickly. Ms. Albers also noted that the applicant is a relatively older worker (he is 51) who will be competing for work with much younger, more computer-savvy people. She felt that the business degree coupled with the computer support technician diploma would make him more marketable, but without the computer support technician diploma placement would be a challenge. Transcript, pages 16-17. She thought it might take up to 21/2 or 3 academic years for him to complete her plan, but indicated that much time would provide him a cushion.
The respondent offers reports from its own expert, Bruce Schuyler. See exhibits 2 and 3. Mr. Schuyler believes that the applicant--who is left handed--could return to work as a truck driver despite his restrictions and that vocational retraining is unnecessary. Should retraining be undertaken, Mr. Schuyler opined, the applicant should get an Associate degree in Business Management, or in Information Technology-Network Specialist, or in Marketing. He did not think the applicant needed the computer support technician diploma as well.
For the reasons set out in the ALJ's decision, the commission concludes that a return to the type of truck driving work that would restore the applicant's earning capacity is not feasible. The commission thus adopts Ms. Albers' conclusion that vocational retraining is required. Indeed, on appeal the respondent focuses on the reasonableness of Ms. Albers' plan rather than on whether retraining is required in the first place.
At the hearing in July 2009, the applicant testified he intended to start Ms. Albers' plan in the fall of 2009. At that time, he had paid for the tuition himself (transcript, page 31). As noted above, the applicant now seeks compensation for vocational retraining under Wis. Stat. § § 102.43(5) and 102.61. The respondent objects that Ms. Albers' plan involving two programs enhances rather than restores the applicant's earning capacity.
The respondent correctly notes that Massachusetts Bonding & Ins. Co. v. Industrial Commission, 275 Wis. 2d 505, 512 (1957) does not apply in cases involving private rehabilitation counselors instead of DVR counselors. As noted above, Wis. Stat. 102.61(1m) governs situations involving private rehabilitative counselors. A footnote(1) appended to Wis. Stat. § 102.61(1m) in the department's publication of the worker's compensation statutes states:
237The limitations on the scope of review of department decisions as a result of Massachusetts Bonding & Ins. Co. v. Industrial Comm., 275 Wis. 505 (1957), and the line of cases following that decision, do not apply to a review of the cost, scope and reasonableness of services and programs developed by private rehabilitation counselors. The limitations still apply to determinations by the department.
DWD, Worker's Compensation Act of Wisconsin with Amendments to December 2007 (WKC-1-P (R.03/2008)). However, as set out below, the department's administrative rules include provisions that roughly parallel Massachusetts Bonding and that provide some limits on the review of a private counselor's plan, the department's administrative rules include provisions that roughly parallel Massachusetts Bonding and that provide some limits on the review of a private counselor's plan.
Wisconsin Stat. § 102.43(5) and 102.61(1m)(c) provide in relevant part:
102.43(5) ... Except as provided in s. 102.61 (1g),[(2)] temporary disability shall also include such period as the employee may be receiving instruction pursuant to s. 102.61 (1) or (1m). Temporary disability on account of receiving instruction of the latter nature, and not otherwise resulting from the injury, shall not be in excess of 80 weeks. Such 80-week limitation does not apply to temporary disability benefits under this section, travel or maintenance expense under s. 102.61 (1), or private rehabilitation counseling or rehabilitative training costs under s. 102.61 (1m) if the department determines that additional training is warranted. The necessity for additional training as authorized by the department for any employee shall be subject to periodic review and reevaluation.
102.61(1m)(c) The employer or insurance carrier shall pay the reasonable cost of any services provided for an employee by a private rehabilitation counselor under par. (a) and, subject to the conditions and limitations specified in sub. (1r) (a) to (c) and by rule, if the private rehabilitation counselor determines that rehabilitative training is necessary, the reasonable cost of the rehabilitative training program recommended by that counselor, including the cost of tuition, fees, books, maintenance, and travel at the same rate as is provided for state officers and employees under s. 20.916 (8). Notwithstanding that the department may authorize under s. 102.43 (5) a rehabilitative training program that lasts longer than 80 weeks, a rehabilitative training program that lasts 80 weeks or less is presumed to be reasonable.
Wis. Admin. Code DWD § 80.49 provides in relevant part:
80.49(3) 80-WEEK RULE. Extension of vocational rehabilitation benefits beyond 80 weeks may not be authorized pursuant to s. 102.61 (1) or (1m), Stats., if the primary purpose of further training is to improve upon preinjury earning capacity rather than restoring it.
...
(10) RETRAINING. (a) If, after reasonably diligent effort by the employee and the [private rehabilitation] specialist, the employee does not obtain suitable employment,(3) then there is a rebuttable presumption that the employee needs retraining. The presumption is rebuttable by evidence that:
1. No retraining program can help restore as nearly as possible the employee's wage earning capacity;
2. The employee or the specialist did not make a reasonably diligent effort under sub. (9) (b) to obtain suitable employment for the employee; or
3. The employee or specialist withheld or misrepresented highly material facts.
(b) A retraining program of 80 weeks or less is presumed to be reasonable and the employer shall pay the cost of the program, mileage and maintenance benefits, and temporary total disability benefits.
(c) A retraining program more than 80 weeks may be reasonable, but there is no presumption that training over 80 weeks is required. Extension of vocational rehabilitation benefits beyond 80 weeks may not be authorized if the primary purpose of further training is to improve upon preinjury earning capacity rather than restoring it.
(d) If the retraining program developed by the specialist is for more than 80 weeks, the self-insured employer or the insurance carrier may offer an alternative retraining program which will restore the employee's preinjury earning capacity in less time than the retraining program developed by the specialist. An employee may not refuse a self-insured employer's or insurance carrier's timely, good-faith, written offer of an alternative retraining program without reasonable cause.
Read together these provisions indicate that a plan of 80 weeks or less is presumed reasonable--even if it might be viewed as enhancing earning capacity. However, when a plan developed by a private rehabilitation counselor exceeds 80 weeks, the respondent may propose an alternative.
In this case, the presiding ALJ found the applicant could complete Ms. Albers' plan in less than 80 weeks, a finding which the commission accepts. Ms. Albers, again, said the plan was for 2-3 academic years to give the applicant a cushion. Mrs. Albers also, however, gave the applicant an "A+" for self-motivation. Two and one-half academic years at 16 weeks a semester would equal 80 weeks. Ms. Albers plan is a presumptively reasonable plan under Wis. Stat. § 102.61(1m)(c) and Admin. Code § DWD 80.49(10)(b).
Even if it were not, the commission would still find Ms. Albers' plan more reasonable than Mr. Schuyler's. The applicant is an older worker, and has a significant disability. The effect on his earning potential from the injury is real as Mr. Schuyler recognizes. Ms. Albers reasonably noted that the applicant, upon completing his training, would be competing for work with younger workers whose computer skills would otherwise be superior to his own. While the relatively brief computer service technician training would increase the applicant's marketability--that is, would help him find a job--it alone would not restore the applicant's earning capacity. Indeed, Mr. Schuyler himself concludes that an associates degree is warranted, along the programs he recommends is IT Networking.
As the ALJ pointed out, the main purpose of retraining generally is to restore capacity and potential, not simply replace lost wages. Wis. Admin. Code § DWD 80.49(1). In Beloit Corporation v. LIRC, 152 Wis. 2d 579, 590 (Ct. App., 1989), the court noted that while the vocational retraining may increase an applicant's earning capacity above the pre-injury level, that alone did not make it unreasonable. The court specifically noted that vocational retraining is undertaken to restore earning potential, as well as earning capacity. Beloit, 152 Wis. 2d at 591.
Finally, although stating it does not call into question the necessity of retaining, the respondent does question the applicant's ability to succeed in a retraining program, noting the fact he has had no formal schooling since 1976 and adverse long-term effects due to Tegretol usage. However, while the employer's vocational expert questioned the necessity of vocational training given the applicant's restrictions--a point the respondent has now conceded--he did not raise any concerns about the applicant's mental ability to complete retaining.
Under the circumstances, the plan proposed by Ms. Albers, the Computer Support Technician diploma coupled with the Associate of Arts degree in Business Management is deemed reasonable.(4) The respondents are liable for the costs of the program, mileage, maintenance, and temporary disability, as more particularly set forth in the statutes. Should the applicant be unable to complete the program within the 80-week time frame, jurisdiction is retained to permit the department to review the necessity for retraining beyond 80 weeks, under Wis. Stat. § 102.43(5).
The respondent shall reimburse the applicant the sum of $1,479.14, the cost of the fall 2009 semester tuition, and the cost of the $40.00 testing fee.
The respondent shall pay to the applicant the amount of $391.01 (TTD rate of $488.76 less a 20 percent fee of $97.75) for each week that the applicant is receiving retraining under Ms. Albers' plan, as well as mileage, the cost associated with the plan, and maintenance.
The respondent shall escrow and pay out directly to the attorney a 20 percent attorney's fee, $97.75 per week, from the compensation due the applicant as the compensation accrues.
NOW, THEREFORE, the Labor and Industry Review Commission makes this
The findings and order of the administrative law judge are modified to conform to the foregoing and, as modified, are affirmed.
Within 21 days, the employer and insurer shall pay all of the following:
1. To the applicant, Ralph T. Rote, the sum of One thousand five hundred nineteen dollars and fourteen cents ($1,519.14) as reimbursement for retraining fees and costs; and
The sum of Three hundred ninety-one dollars and one cent ($391.01) for each week the applicant is attending classes in Ms. Albers' program.
3. To the applicant's attorney, James A. Meier, the sum of Ninety-seven dollars and seventy-five cents ($97.75) per week for the weeks the applicant receives retraining in the plan.
The employer and the insurer are liable for all costs associated with the program including mileage and maintenance.
Jurisdiction is reserved, consistent with this order.
Dated and mailed March 29, 2010
rotera . wrr : 101 : 5 ND
5.41
/s/ James T. Flynn, Chairperson
/s/ Robert Glaser, Commissioner
/s/ Ann L. Crump, Commissioner
The commission did not confer with presiding ALJ as provided in Transamerica Ins. Co. v. ILHR Department, 54 Wis. 2d 272, 283-84 (1972), and does not reach different conclusions regarding the credibility of the witnesses who testified before him.
cc:
Attorney James A. Meier
Attorney Douglas E. Selky
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