Reeves v. Liberty Mutual Fire Insurance ( 1996 )

NO. 95-317
IN THE SUPREME COURT OF THE STATE OF MONTANA
1995
JOAN REEVES,
Petitioner and Appellant,
LIBERTY MUTUAL FIRE
INSURANCE COMPANY,
Respondent and Insurer for
UNITED PARCEL SERVICE,
Employer.
APPEAL FROM: The Workers Compensation Court of
the State of Montana,
The Honorable Mike McCarter, Judge presiding
COUNSEL OF RECORD:
For Appellant:
Michael P. Sand and Julianne C. Burkhardt,
Sand Law Offices, Bozeman, Montana
For Respondent:
Larry W. Jones, Missoula, Montana
Submitted on Briefs: November 16, 1995
Decided: February 12, 1996
Filed:
Chief Justice J. A. Turnage delivered the Opinion of the Court.
Joan Reeves appeals a decision of the Workers' Compensation
Court denying her request for rehabilitation benefits to permit her
to pursue a master's degree in counseling. We affirm.
The sole issue raised is whether Reeves is eligible for a
rehabilitation plan pursuant to § 39-71-2001, MCA (1993). There-
fore we do not address the important issue discussed in the
concurring opinion.
Joan Reeves injured her back in January 1994 while employed as
a driver for United Parcel Service (UPS). After she reached
maximum medical healing, she was restricted to work with medium
physical demands, preventing her from returning to her job at UPS.
She settled her workers' compensation claim for permanent partial
disability in August 1994, specifically leaving open her claim for
rehabilitation benefits pursuant to 5 39-71-2001, MCA (1993).
Reeves subsequently proposed a rehabilitation plan to UPS's
insurer, Liberty Mutual Fire Insurance Company, under which she
would pursue a two-year program leading to a master’s degree in
counseling. Liberty Mutual rejected the proposal. Reeves then
petitioned the Workers' Compensation Court for a hearing on whether
she was entitled to rehabilitation benefits to pursue her plan.
The Workers' Compensation Court held a hearing on May 31,
1995, after which it denied Reeves' request for rehabilitation
benefits. The court ruled that Reeves' proposed plan was not
reasonable because she did not establish a reasonable expectation
2
that the plan would improve her position in the job market. Reeves
appeals.
Is Reeves eligible for a rehabilitation plan pursuant to § 39-
71-2001, MCA (1993)?
Section 39-71-2001(l), MCA (1993), provides:
Rehabilitation benefits. (1) An injured worker is
eligible for rehabilitation benefits if:
(a) the injury results in permanent partial
disability or permanent total disability as defined in
39-71-116;
(b) a physician certifies that the injured worker
is physically unable to work at the job the worker held
at the time of the injury;
(c) a rehabilitation plan completed by a rehabili-
tation provider and designated by the insurer certifies
that the injured worker has reasonable vocational goals
and a reemployment and wage potential with rehabilita-
tion. The plan must take into consideration the worker's
age, education, training, work history, residual physical
capacities, and vocational interests.
Cd) a rehabilitation plan between the injured
worker and the insurer is filed with the department. If
the plan calls for the expenditure of funds under 39-71-
1004, the department shall authorize the department of
social and rehabilitation services to use the funds.
We previously interpreted and applied this statute in State of
Montana ex rel. Cobbs v. Montana Department of Social and Rehabili-
tation Services (Mont. 1995), ~ P.2d ~, 52 St.Rep. 1166
However, that case did not involve the issue here presented.
Liberty Mutual concedes that Reeves has met the requirements
of subsections (1) (a) and (b) above. However, Liberty Mutual
refused to participate in documenting Reeves' plan, instead merely
assigning a rehabilitation counselor to offer her job placement
assistance. Liberty Mutual did not designate Reeves' rehabilita-
tion plan as a plan representing "reasonable vocational goals and
3
a reemployment and wage potential with rehabilitation," pursuant to
subsection (1) (cl, above. As a result, no plan was filed with the
department pursuant to subsection (1) (d) above.
Reeves contends that Liberty Mutual admitted that she would
earn $32,000 per year as a licensed practical counselor in private
practice. This contention is based upon a proposed finding
submitted to the Workers' Compensation Court by Liberty Mutual:
"The Claimant plans, if she receives her master's degree, to work
as a licensed practical counselor earning approximately $~Z,OOO.OO
a year counseling clients in private practice."
Reeves' contention is without merit. A statement of an
opposing party's plan does not equate to a statement of belief in
the merits of the plan. The statement of Reeves' plan was not a
concession that Reeves would actually earn the amount she planned
to earn.
The Workers' Compensation Court heard evidence that, prior to
her employment with UPS, Reeves earned a bachelor's degree in home
economics with a family science option and that she held a long-
term goal of obtaining a master's degree in counseling. Reeves had
been working at UPS to save money to return to college to continue
her schooling. She did not utiiize her undergraduate degree to
work in the field of social services for several reasons.
First, she could earn more money as a driver for UPS. Reeves'
time-of-injury earnings with UPS were $12.82 per hour. Average
wages for the social work/counseling field with a bachelor's degree
were $9.62 per hour.
4
Second, Reeves did not wish to work with the type of clientele
with whom she would have to work, with only an undergraduate
degree. In her own words:
THE COURT: [Your] degree is with the family services
options and you are interested in family counseling. Why
haven't you looked for jobs in the family services area?
THE WITNESS: Because those jobs--the salaries for those
jobs are--I guess basically that is not where I want to
be. I've always wanted to be in family practice. ?'here
is a whole different clientele between entry-level jobs
with my degree and the clientele that I would be working
with as a counselor.
Q. What I would like you to do, Joan, is maybe explain
for the judge the difference in the type of work that you
would do with the bachelor's degree that you presently
hold as opposed to the type of work you would expect to
do with a master's degree.
A. Okay. Let's take an example that maybe I was like a
social worker. I don't know that I could be an actual
social worker, but something in that field.
Basically, in my opinion, you would be dealing with
kids, families who were in deep trouble, financial
trouble, you know, possibly abuse situations, just some
real sad case scenarios. That has just never been--you
know, kids that probably are not being taken care of
properly and that sort of thing.
My clientele who I would like to work with are more
just couples that are having problems, people that are
coming to you who want to get well, who can get well, who
have the--who are there because they want to solve the
problem.
A lot of these other jobs you can't help people. I
mean they are in these situations by circumstance. They
are, you know, due to poverty or some sort of situations,
I mean in some ways beyond their control and, secondly,
things that they don't want to change. I don't care to
be involved in those situations.
I choose to be involved in situations where I feel
like I can more make a difference. You get kids and
their parents are abusing them and that sort of thing,
and you just have no control over that. Those are not
situations that I care to be involved with.
SO marriage and family therapy, people come in who
want to get well. They are real motivated to get well.
5
They are paying you for a service and, you know, they
want to get well. That's who I want to work with.
That's who I've always wanted to work with.
Q. Would the primary difference be the type of individu-
al that you are working with?
A. Yes.
Reeves testified that at the time of the hearing she was earning
$9.81 per hour as a telemarketer and ad salesperson for the Bozeman
Daily Chronicle newspaper. She further testified that, once she
earned her master's degree, she planned to be self-employed as a
COUIlSelOr. She stated that her father had offered to provide her
with start-up costs of opening her own office.
Liberty Mutual concedes that Reeves' rehabilitation plan is
reasonable inasmuch as she has the ability to do graduate college
work. Susan Kern, the rehabilitation counselor to whom Liberty
Mutual referred Reeves, testified by deposition that Reeves'
vocational goal of obtaining a master's degree in counseling is
reasonable for her to attain and that Reeves has the intellectual
ability to complete the program. The Workers' Compensation Court
noted "it's reasonable to expect that she's capable of completing
the master's program and obtaining certification as a certified
counselor.'1
However, the evidence as to other aspects of the reasonable-
ness of Reeves' plan was less favorable. Reeves testified she
intends to continue living in Bozeman, Montana. Kern testified
that the Bozeman area is saturated with professional counselors.
Q. As a vocational counselor what is your independent
impression for what this young lady should do?
6
A. Well, I thought--I think she's somewhat unrealistic
about her view of what therapy in the private sector is
like. I think, if that's truly her goal--and that's her
personal choice, if she wants to pursue it or not--I
think it's going to be very difficult to establish a
practice in Bozeman.
In her deposition, Kern stated:
I think that Bozeman has a very competitive market,
particularly in the self-employed, private counseling
area. There are 52 LPC's [licensed professional counsel-
ors] here. That's not counting the people who have
Master's in social work or clinical psychology. So it's
very competitive. It would be very hard to start a
business here unless you had a completely new or unusual
background that was really in demand to people.
Other than the fact that she knows many people in Bozeman, Reeves
presented no evidence of special experience or education that would
set her off from her competitors in opening a counseling practice.
The Workers' Compensation Court reasoned that Reeves' own
testimony proved that her expectations regarding employment as a
private counselor were not reasonable and realistic. The court was
not persuaded that, as a new counselor in the saturated counseling
market of Bozeman, Montana, Reeves would be able to attract the
kind of clientele to whom she wishes to limit her work.
The court concluded Reeves would be most likely to find
counseling work with a social services agency. Kern testified that
her investigation revealed there was often no pay differential
between persons with bachelor's and master's degrees in agency work
in the Bozeman job market. With a master's degree, the wage could
rise to as much as $14.42 per hour, but for most positions in that
market, entry-level wages were the same for a person with a
master's degree as for one with a bachelor's degree. At any rate,
Reeves does not wish to do agency work because it involves the type
of clientele she wishes to avoid.
While § 39-71-2001, 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. If it did, subsection
(1) (c) of the statute would have no purpose.
Section 39-71-2001, MCA (1993), must also be viewed in light
of the purpose of the Workers' Compensation Act to return a worker
to work as soon as possible after a work-related injury or disease.
Section 39-71-105(2), MCA. That purpose would not be furthered by
removing a worker from the work force for two years of "rehabili-
tation" which will not put the worker in a better position to
obtain employment.
The decision of the Workers' Compensation Court was based upon
an absence of a reasonable expectation that Reeves' rehabilitation
plan would improve her position in the job market and on the
unreasonableness of the career envisioned in Reeves' proposed
rehabilitation plan as a means of employment, given her goals and
self-imposed limitations. Reasonableness is a question of fact.
Robertson v. Aero Power-Vat, Inc. (Mont. 1995), 899 P.2d 1078,
1080, 52 St. Rep. 673, 674. We review the Workers' Compensation
Court's findings of fact to determine whether they are supported by
substantial evidence. Stordalen v. Ricci's Food Farm (1993), 261
Mont. 256, 258, 862 P.2d 393, 394. Substantial evidence in the
record supports the Workers' Compensation Court's determination
8
that Reeves' proposed plan did not represent "reasonable vocational
goals and a reemployment and wage potential with rehabilitation,"
as required under 5 39-71-2001(l) (c), MCA (1993). We affirm the
decision of the Workers' Compensation Court.
We concur:
Justices
9
Justice James C. Nelson specially concurring.
I concur in the resolution of the issue raised on appeal, but
believe that the threshold and dispositive issue was never
presented to the Worker's Compensation Court and, therefore, is not
addressed or resolved by this Court.
Reeves appeals from the decision of the Workers' Compensation
Court denying her rehabilitation benefits under F, 39-71-2001, MCA
(1993). Basically, Reeves contends that she is entitled to
rehabilitation benefits because, on the basis of the rehabilitation
plan which she proposed, her vocational goal (to obtain a masters
degree in counseling) is both reasonable and attainable and in
accordance with her previous education, training, etc.
Liberty Mutual contends that Reeves' plan of obtaining a
masters degree in counseling with the goal of counseling only a
limited sort of clientele in Bozeman is not reasonable and has
virtually no chance of,success. Without going into detail, the
Workers' Compensation Court appears to have adopted the view of
Liberty Mutual--i.e., that Reeves' plan is neither reasonable nor
attainable.
I suggest that because of the posture in which this case was
presented to the Worker's Compensation Court by the parties, the
court did not have the opportunity to rule on the threshold and
dispositive legal problem here. Section 39-71-2001(l) (c), MCA
(1993), provides that an injured worker is eligible for
rehabilitation benefits if:
10
rehabilitation plan completed by a rehabilitation
irovider and designated by the insurer certifies that the
injured worker has reasonable vocational goals and a
reemployment and wage potential with rehabilitation. The
plan must take into consideration the worker's age,
education, training, work history, residual physical
capacities, and vocational interests.
Section 39-71-1011(4), MCA (1993), defines a "rehabilitation
plan" as:
an individualized plan to assist a disabled worker in
acquiring skills or aptitudes to return to work through
job placement, on-the-job training, education, training,
or specialized job modification.
That same section at (5) defines a "rehabilitation provider" as:
a rehabilitation counselor certified by the board for
rehabilitation certification [defined in subsection (l)]
and designated by the insurer to the department or a
department of social and rehabilitation services
counselor when a worker has been certified by the
department of social and rehabilitation services under
39-71-1003.
I submit that the threshold problem in this case is that there
never was a "rehabilitation plan" before the Workers' Compensation
Court. That conclusion follows from the fact that no
"rehabilitation provider I' designated by the insurer ever formulated
a "rehabilitation plan" while taking into consideration the
requirements of the applicable statutes
To the contrary, Liberty Mutual simply hired Susan Kern, a
rehabilitation counselor and, at the outset, instructed her that
she was to assist Reeves with job placement but was not to assist
her in preparation of a rehabilitation plan which included further
education. In other words, Liberty Mutual, up front, simply
dictated that there would be no rehabilitation plan formulated by
the professional person whose job it was, under § 39-71-2001(l) (c),
11
MCA (19931, to come up with a plan. Rather, Liberty Mutual made
the decision as to what rehabilitation benefits Reeves would be
entitled to--i.e., job placement assistance only--and then directed
the rehabilitation counselor to carry out that decision.
I suggest that implicit in § 39-71-2001, MCA (1993), in
general, and in subsection (1) cc), in particular, is the obligation
on the part of the insurer to, in good faith, designate a
"rehabilitation provider" and then to let the "rehabilitation
provider" formulate a "rehabilitation plan," taking into
consideration the statutory criteria--the worker's age, education,
training, work history, residual physical capacities, and
vocational interests. See 5 39-71-2001(l) (c), MCA. A plan
developed in accordance with that statute may include I'job
placement, on-the-job training, education, training, or specialized
job modification," or, presumably, any combination of those. See
5 39-71-1011(4), MCA (1993).
The point is that it is the rehabilitation provider's job to
formulate the rehabilitation plan, not the insurer's. See § 39-71-
2001(1)(c), MCA (1993). If the insurer can simply dictate at the
outset what the plan will or will not encompass and,
coincidentally, what benefits will or will not be provided, then
there is, obviously, no need for the services of a trained,
experienced and certified rehabilitation provider, much less any
input from the injured worker. Under those circumstances the
entire statutory scheme is frustrated and the resultant "plan" is
nothing less than a sham.
12
This interpretation is consistent with the purpose of the
statute to provide rehabilitative benefits to injured workers.
Moreover, I suggest that what the insurer cannot do is exactly what
Liberty Mutual did in this case--i.e., refuse the claimant the
opportunity for rehabilitative benefits consistent with a
rehabilitation plan formulated by a rehabilitation provider in
accordance with the statutory criteria and on the basis of the
counselor's professional knowledge, training and experience, and
work with the claimant. That is the threshold problem here as
regards Liberty Mutual.
On the part of Reeves, the statute clearly does not authorize
her to come up with her own rehabilitation plan as she is not a
rehabilitation provider under the statute nor has she been
designated in that capacity by the insurer (assuming that she had
the professional qualifications in the first place). Moreover,
simply because the claimant comes up with a plan of how she wants
to be rehabilitated, that does not obligate the insurer to agree
with her plan nor does it obligate the department or the court to
approve it.
Here, whether Reeves' plan was unrealistic and unworkable,
given the market and the type of practice she wanted to establish
was not the issue. Rather, in my view, the court was put into the
position of having to simply assume that the claimant's plan was
the statutory "rehabilitation plan." I suggest that there was, in
fact, no rehabilitation plan before the court as the statutory
requirements for formulating such a plan had not been even
13
minimally followed by Liberty Mutual. Furthermore, Reeves had no
statutory authority to come up with her own plan.
If the parties were required to follow the statutory scheme,
Liberty Mutual would be obligated to designate a "rehabilitation
provider" as defined in § 39-71-1011(5), MCA (1993), and then allow
the rehabilitation provider to independently work with the claimant
and develop a rehabilitation plan for presentation to the insurer.
Section 39-71-2001(l) (c) and cd), MCA (1993). Assuming that the
rehabilitation provider and the plan certified that the injured
worker had reasonable vocational goals and reemployment and wage
potential with rehabilitation and that the plan is designed to
accomplish those, taking into consideration the requirements of §
39-71-2001(l) (c), MCA (1993), then it seems to me, that at a
minimum, the statutory framework has been honored.
Under § 39-71-2001(l) (d), MCA (1993), if the injured worker
and the insurer agree with the rehabilitation plan, then the plan
is filed with the department of labor and benefits are provided in
accordance with the plan. If either the insurer or the claimant
disagree with the rehabilitation plan, the insurer or claimant then
has an avenue of review through mediation, the Workers'
Compensation Court and, ultimately, this Court.
This interpretation of the statutory framework is consistent
with our recent decision in State ex rel. Cobbs v. Montana
Department of Social and Rehabilitation Services (Mont. 1995), 52
St.Rep. 1166, 1169, wherein we noted that the rehabilitation plan
under s 39-71-2001, MCA (1993), is "developed by the insurer,
14
claimant and rehabilitation provider and filed with the Department
of Labor." We also stated that "Ielntitlement to rehabilitation
benefits sought pursuant to 5 39-7-2001, MCA (1993), is determined
by the worker, the insurer, the private 'rehabilitation provider,'
the Department of Labor and, in the event of a dispute, the
workers' compensation mediator and the Workers' Compensation
Court." Cobbs, 52 St.Rep. at 1169.
In the instant case, had the statutory framework been
followed, a rehabilitation plan might have been developed with and
for Reeves that would have satisfied both the insurer and the
claimant, or if not both, at least the court, on review. As it is,
the statutes were ignored and Reeves has been denied rehabilitation
benefits altogether. A no less satisfactory consequence of this
case is that our opinion (which is only the second interpreting
this section of the code), seemingly approves of the procedures
used here--procedures that do
statutory scheme enacted by the legisl
Justice Karla M. Gray concurs in the foregoing special concurrence.
P-
15
Justice Terry N. Trieweiler dissenting.
I dissent from the majority opinion.
By affirming the Workers' Compensation Court, the majority has
placed an impossible burden on injured workers who wish to restore
some of their lost earning capacity by availing themselves of the
rehabilitation benefits provided for in the Workers' Compensation
Act.
Joan Reeves proved that her earning capacity had been
substantially reduced due to a job-related disability; her earning
capacity could be substantially improved by furthering her
education; and she was qualified by intellect, training, and
disposition for the program in which she sought to enroll. These
facts are uncontroverted and are sufficient to satisfy the
requirements of § 39-71-2001, MCA (1993).
Instead of applying the simple terms of the rehabilitation
statute, the Workers' Compensation Court, and the majority of this
Court, have required that before completing a two-year graduate
program, the claimant know exactly what kind of counseling she is
going to do, what kind of market there is for that counseling, and
how she would overcome professional obstacles that she is not even
in a position to anticipate. What the court has done is no
different than concluding that it is unreasonable for someone to
enter law school unless they first know what their specialized area
of practice is going to be, how many other people are currently
engaged in that specialized area, and what their marketing strategy
is going to be for competing with already established lawyers.
16
Most lawyers would agree that applying these same requirementsto
their own profession would be absurd. Applying these requirements
to Joan Reeves is no less absurd.
The uncontroverted evidence established the following:
Joan Reeves has a bachelor's degree in home economics with a
family science option. The family science option was recommended
for students intending to obtain a master's degree in family
counseling. She satisfied the requirements for a family science
option because it was always her intention to obtain a master's
degree and become a family counselor.
Joan maintained a "B" average in high school and a "B+"
average in college. Everyone concedes that she is academically and
intellectually qualified to enter and successfully complete a
master's degree program which would qualify her to become a
licensed practical counselor providing marriage and family therapy.
After her graduation from MSU in June 1991, before entering a
master's program, she first went to work to pay off debts that she
had accumulated during college and to save money for her graduate
education. At the time, entry level jobs for which she would have
qualified with her college degree paid from $7.00 to $8.00 per
hour. However, by doing physical labor for her father she was able
to earn $10.00 an hour. She later earned $11.00 an hour as her
starting wage for UPS. At the time of her injury she was earning
$12.82 an hour as a package car driver. Evidence at the trial was
that after two years on the job her wage would have increased to
$18.84 an hour.
17
On January 4, 1994, while working for UPS, Joan sustained a
back injury. As a result of her injury she cannot return to her
job. She has been unable to find employment related to her
education and instead does telemarketing and other part-time work
for the Bozeman Chronicle. Her average hourly wage, including
commissions, is $9.81 an hour.
She explained that her interest in obtaining a master's degree
was based on two factors. First, she stated that she could not
otherwise qualify for the specific type of counseling that she was
interested in. Second, she testified that counselors with a
master's degree earn substantially more than counselors with a
bachelor's degree.
Reeves was not, as the Workers' Compensation Court found,
unrealistically selective about the kind of work she wanted to do
as a counselor. Following cross-examination by the Workers'
Compensation Court Judge, she tried to provide the following
explanation for preferring private practice to agency work:
THE COURT: I understand the kind of people that you want
to counsel; but, in my mind immediately is are those the
kind of people who are going to be coming to marriage
counselors?
THE WITNESS: You made a comment earlier that, you know,
that I assumed that there were just going to be husbands
and wives without kids and stuff. I just wanted to clear
that up. I mean I assume that husbands and wives are
going to come in with kids who probably have drug
problems or are acting out and those sort of things. I
realize there are other types of situations.
My clarification is that I think the difference
being those people are coming to you for help. I mean
they are not people who have been assigned to you by
18
someone else. I mean those are people [who] actually
want help.
In other words, Reeves' innocent statement which has been
blown out of proportion by the Workers' Compensation Court was that
given her choice she would rather counsel people in the private
sector who are interested in solving their problems than people
assigned to her at a government agency who are there simply because
they have to comply with some court or agency directive.
The idea that this person who has not even enrolled in her
master's degree program should somehow be able to anticipate
exactly who her clientele will be or how she will adapt her
education to the realities of the market place is strange to begin
with. Nevertheless, doing her best to respond to the trial judge's
concerns, she later explained during re-examination that in a worst
case scenario if she could not successfully establish a private
practice, but had a master's degree, she could go to work for an
agency earning more than she would earn with a bachelor's degree
and still eventually attempt to work into a private practice.
The testimony of Susan Kern, the rehabilitation counselor
hired by Liberty Mutual, did nothing to dispel the obvious
conclusion that Reeves' vocational rehabilitation proposal was
reasonable.
Kern agreed that Reeves' earning capacity, without further
education, was between $7.00 and $10.73 per hour, but that with a
master's degree her entry level wage for a mental health agency
would be $12.30 per hour.
19
Kern agreed that Reeves was intellectually capable of
completing the master's program. She agreed that with some
employers she would have a greater long-term earning capability
with a master's degree than with a bachelor's degree, and she
agreed that there were differences in the job descriptions for
people with bachelor's degrees, as opposed to master's degrees.
Most critically, Kern, who was retained and paid for by Liberty
Mutual, gave the following testimony:
Q. I asked you in your deposition a question about
whether you had enough information about Joan to form an
opinion as to whether you thought her vocational goal of
getting a master's degree was a reasonable goal for her.
What is your opinion in that regard?
A. I think it's reasonable for her.
Section 39-71-2001, MCA (1993), does not require the
impossible. It simply requires that before a claimant qualifies
for rehabilitation benefits he or she have a partial disability, be
unable to return to the job at which the claimant was injured, and
have a rehabilitation plan, including "reasonable vocational
goals." All of those requirements were satisfied in this case. To
deny Reeves benefits because prior to even entering the graduate
program she was not absolutely certain about the kind of clientele
she would counsel, the feasibility of the type of counseling she
thought she would prefer, or the marketing strategy she would
employ to be successful, suggests a preoccupation on the part of
the trial court with denial of claimant's benefits, rather than an
objective application of the statutory requirement.
20
Although the concurring opinion certainly does not have the
force of precedent, I am also concerned about some of the views
stated therein. I agree that pursuant to the requirements of
§ 39-71-2001, MCA (1993), the insurer has no right to dictate to
the rehabilitation provider what plan is most suitable for a
claimant. I also agree that the insurer has an obligation to act
in good faith when it selects and designates the rehabilitation
provider and when it charges the provider with its responsibility.
However, to assume, as the concurring opinion does, that
insurers will not exert total and complete control, even if
indirectly, over the rehabilitation providers which it retains at
its expense, ignores reality.
Under the current statutory scheme there is little opportunity
for, and no funding with which injured workers can consistently
retain rehabilitation providers. Insurers and employers are the
only parties who can consistently hire them. Any private
rehabilitation provider currently operating in this state knows
that it cannot long do business without a satisfied clientele of
insurers. Therefore, if the only plans the Workers' Compensation
Court can cqnsider are those submitted by the rehabilitation
counselor hired by the insurer, no claimant will ever qualify for
rehabilitation benefits and the statutory framework which
encourages rehabilitation in exchange for a reduction in partial
disability benefits would be rendered meaningless. If this Court
is going to apply § 39-71-2001, MCA (19931, as narrowly as
suggested by the concurring opinion, it might as well interpret the
21
statute to mean "an injured worker is eligible for rehabilitation
benefits if his or her insurer decides that it would like to pay an
extra 104 weeks of benefits."
I would conclude that whenever an insurer, or the
rehabilitation provider that it hires and pays for, arbitrarily and
unreasonably refuses to consider rehabilitation for an injured
worker, that worker must necessarily have the option of submitting
his or her own rehabilitation plan to the Workers' Compensation
court for consideration of whether it meets the statutory
requirements of 5 39-71-2001, MCA (1993). To hold otherwise would
give the insurer complete and total control over the eligibility of
injured workers for rehabilitation benefits.
Having made this observation, however, I would note that this
issue was not before the Workers' Compensation Court and is not
before this Court because even the insurer concedes in its
appellate brief that under the circumstances it would be
unreasonable to argue that the court should not have considered
claimant's proposed rehabilitation plan. At page 18 of its brief
the insurer states:
Additionally, Liberty does not claim rehabilitation
benefits are inappropriate because no plan has been filed
with the Department. It would be unreasonable for a
carrier to defend on this basis when the lack of a
rehabilitation plan results from the insurer having
instructed the rehabilitation provider to perform an
employability assessment and then, after the assessment
reveals the claimant can return to work without
retraining, authorizes only job placement services.
Joan Reeves proposed the most reasonable rehabilitation plan
possible considering her age, education, training, work history,
22
physical limitations, and vocational interests. It was wrong to
frustrate her sincere and legitimate efforts to improve her
vocational future based on the unreasonable and impossible demands
of the trial court.
For these reasons I dissent from the majority opinion and
disagree in part with the concurring opinion.
Judtice
Justice William E. Hunt, Sr., joins in the foregoing dissenting
opinion.
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Justice W. William Leaphart, dissenting.
I dissent. In my opinion, Reeves' plan of obtaining a
Master's Degree in counseling was both reasonable and attainable.
Although the Court had concerns about the prospects of her success
at counseling in the private sector, the record indicates that
Reeves would still have the option of seeking employment as a
counselor with a governmental agency. With a Master's Degree,
Reeves will, either in the public or private sector, demand a
higher salary than with her Bachelor's Degree.
Justic L
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