Wis.LIRC WC Decision: Capriotti - January 28, 2000 - ND � 5.41 - Alternative Provisions for Retraining Benefits - Vocational Rehabilitation - department-certified private rehabilitation counselor to determine if employe can return to suitable employment without rehabilitation training

STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

GEORGE CAPRIOTTI, Applicant

ABILITY GROUP INC, Employer

EMPLOYERS INSURANCE OF WAUSAU, Insurer

WORKER'S COMPENSATION DECISION
Claim No. 1995044312

The employer and its insurance carrier submitted a petition for commission review alleging error in the administrative law judge's Findings and Interlocutory Order issued in this matter on May 17, 1999. The applicant submitted an answer to the petition and briefs were submitted by the parties. At issue is the applicant's eligibility for vocational rehabilitation benefits pursuant to Wis. Stat. � 102.61(1)(m) and Wis. Admin. Code � DWD 80.49.

The commission has carefully reviewed the entire record in this matter and hereby sets aside the administrative law judge's Findings and Interlocutory Order. The commission makes the following:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The applicant, whose birthdate is July 25, 1977, was employed as a punch press operator for a client of the employer, an employment agency. The job paid $6.55 per hour. On August 2, 1995 he sustained a crushing injury to his left hand resulting in amputation of his ring finger at the middle joint, a 15 percent disability rating at the proximal joint of his middle finger, and a one percent permanent partial disability rating at the left wrist due to loss of motion and pain in the left hand.

The applicant was released to restricted work on October 5, 1995, and on November 1, 1995, the employer offered him work at a convenience store also paying $6.55 per hour. The applicant refused this offer and took a job in a plastics molding plant paying approximately $6.35 per hour. He stayed there only about three months because it required him to put too much pressure on his left hand. He next worked for a manufacturer of cardboard tubes, which paid "closer to $7 per hour." He stayed at this job for four or five months, but quit again due to problems with his left hand relative to the job duties.

The applicant did not work again until he moved to Minneapolis, Minnesota, on January 2, 1998. He decided to make this move in order to attend a school in Minneapolis which teaches skills for music production, such as recording studio operation. He immediately enrolled in this school and also obtained part-time employment to support himself. He dropped out of the school after one semester due to financial and family concerns, but would like to return to it. As of the April 1999 hearing date, he was working in sales at an audio equipment store earning $8 per hour. The highest paying job the applicant has had was a part-time custodial position in Minneapolis, paying $10.05 per hour.

The applicant is seeking rehabilitation training assistance pursuant to Wis. Stat. � 102.61(1m). That statute provides that if an employe is eligible for vocational rehabilitation services under 29 U.S.C. 701 et. seq., but the department cannot provide those services, the employe is entitled to select a department-certified private rehabilitation counselor. That counselor's job is to determine whether the employe can return to suitable employment without rehabilitation training, and to develop a rehabilitation training program if the counselor determines that such training is necessary. The cost of the rehabilitation counselor's services is the responsibility of the employer/insurer (see Wis. Stat. � 102.61(1m)(c)).

Given the applicant's circumstances, he is entitled to select a department-certified private rehabilitation counselor to make the initial determination of whether he can return to suitable employment without rehabilitation training. The evidence before the commission indicates that this preliminary step was never taken in this case. Accordingly, the commission will remand the matter to the Department of Workforce Development to allow the applicant to initiate the statutory process by choosing a department-certified vocational rehabilitation counselor to determine whether he can return to suitable employment without rehabilitation training. Of course, the counselor's determination is appealable to the department under the normal hearing procedure. The controversy brought before the commission in this proceeding concerning the applicability of Wis. Admin. Code � DWD 80.49(5) and its provisions, is premature, given the fact that no determination by a department-certified vocational rehabilitation counselor has yet been made.

NOW, THEREFORE, this

INTERLOCUTORY ORDER

The Findings and Interlocutory Order of the administrative law judge are set aside. The matter is remanded to the jurisdiction of the Department of Workforce Development in accordance with the above findings.

Jurisdiction is reserved for such further findings and orders as may be warranted.

Dated and mailed January 28, 2000
capriot.wrr : 185 : 5 ND � 5.41

/s/ David B. Falstad, Chairman

Pamela I. Anderson, Commissioner

/s/ James A. Rutkowski, Commissioner

NOTE: The commission set aside the administrative law judge's decision based on the legal status of the proceedings. No concerns regarding the credibility of the witnesses at the hearings were relevant to the commission's decision.

cc: ATTORNEY RUSSELL W DEVITT
SOFFA & DEVITT

ATTORNEY RAYMOND CLAUSEN
STILP & COTTON

Appealed to Circuit Court. Appeal dismissed for lack of jurisdiction, July 24, 2000.

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