STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JAMES WEISE, JR., )

)

Petitioner, )

)

vs. )

)

DEPARTMENT OF LABOR AND ) Case No. 97-4746 EMPLOYMENT SECURITY, DIVISION )

OF WORKERS’ COMPENSATION, ) BUREAU OF REHABILITATION AND ) MEDICAL SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Robert E. Meale, Administrative Law Judge of the Division of Administrative Hearings conducted the final hearing in Fort Myers, Florida, on February 24, 1998.

APPEARANCES

For Petitioner: Peter C. Burkert

Burkert & Hart, P.A. Post Office Box 2485

Fort Myers, Florida 33902

For Respondent: Attorney Katrina D. Callaway

Department of Labor and Employment Security

2012 Capital Circle, Southeast Suite 307, Hartman Building Tallahassee, Florida 32399-2189

STATEMENT OF THE ISSUE

The issue is whether Petitioner is entitled to a vocational evaluation for formal training and education

sponsored by the Division of Worker’s Compensation, pursuant to Section 440.491(6), Florida Statutes.

PRELIMINARY STATEMENT

By letter dated August 27, 1997, Respondent advised Petitioner that, after performing a screening of Petitioner, pursuant to Section 440.491, Florida Statutes, Respondent had determined that, pursuant to Section 440.491(6)(a), Florida Statutes, Petitioner was ineligible for vocational services sponsored by Respondent. The letter states that Petitioner was able to obtain suitable gainful employment through vocational services and did not require a vocational evaluation for training and education.

By Petition for Hearing and/or Formal Proceedings dated September 16, 1997, Petitioner alleged that Respondent improperly denied his request for vocational services following injuries from a work-related accident. Petitioner alleged that this decision denied him appropriate training and education that he required to return to suitable gainful employment at as nearly as possible his average weekly wage that he had at the time of his accident.

At the hearing, Petitioner called one witness and offered into evidence one exhibit. Respondent called two witnesses

and offered into evidence five exhibits. All exhibits were admitted.

The court reporter filed the transcript on March 24, 1998.

FINDINGS OF FACT

1. On April 30, 1996, Petitioner herniated a disc while lifting materials in the course of his employment as an electrician with General Electric Contracting. He was working at the time as a lead electrician doing residential and commercial installations and repairs.

2. Petitioner underwent low-back surgery about a year later. On May 21, 1997, the surgeon determined that Petitioner had reached maximum medical improvement. The surgeon assigned Petitioner a 9 percent impairment rating and restricted him to lifting up to 35 pounds occasionally, up to

   20 pounds frequently, standing and walking four to six hours during an eight-hour day, and driving five to eight hours during an eight-hour day. The surgeon advised Petitioner to avoid bending, squatting, and crawling.

3. Petitioner is 50 years old. He has a high school diploma. Apart from one year's additional coursework in

   business at a community college, Petitioner has no other formal education.

4. At the time of his injury, Petitioner had been employed as an electrician at General Electric Contracting for six or seven years. After high school, Petitioner served in the U.S. Navy from 1966-70, specializing in weapons. After his honorable discharge, Petitioner worked for two years in route sales--the first year selling ice cream and the second year selling pet supplies. After these jobs, Petitioner began working as an electrician.

5. Petitioner has since worked continuously as an electrician except for the period from 1975-78. During this time, Petitioner opened a sporting goods store in East Fort Myers devoted exclusively to hunting and fishing. Failing to obtain financing for his business, which was not very profitable, Petitioner tried to sell the store, but could obtain no more than the cost of the inventory. He then returned to work as an electrician.

6. Due to his physical limitations occasioned by his work-related injury and surgery, Petitioner can no longer work as an electrician. At the time of his injury, Petitioner was earning an average weekly wage of $554.86.

7. Petitioner has vigorously attempted to find suitable appropriate employment, given his past earnings and current

   physical limitations. Respondent has given him two job leads as a Code inspector. However, Petitioner failed to get the first job. His application for the second is still pending, but he has not been called for an interview in the six weeks since submitting his application. There is some question whether Petitioner can do the job, which may require bending, squatting, and lifting, but Petitioner has nonetheless pursued this opportunity enthusiastically.

8. On July 9, 1997, Petitioner submitted a request for screening to determine his suitability for a vocational evaluation. Respondent conducted the screening and determined that Petitioner has sufficient transferable skills to allow him to return to suitable gainful employment without a vocational evaluation or vocational training or education.

9. In defending this decision, Respondent's witnesses emphasize the negotiation and marketing skills that Petitioner has presumably developed in his long career as an electrician. However, there is no evidence that Petitioner has developed such skills in any of his prior employment. Respondent's witnesses also emphasize the managerial and bookkeeping skills that Petitioner has also presumably developed, but, again, the record does not reveal that Respondent developed marketable skills of these types in his prior employment.

10. Besides the two leads as a Code inspector, the other leads that Respondent has supplied Petitioner are unsuitable due to physical demands or pay, require skills that Petitioner does not possess, are unavailable in Southwest Florida, or present little chance for employment for a person of Petitioner's education, age, and background.

11. In satisfying his burden of proving entitlement to a vocational evaluation in order to obtain suitable gainful employment, Petitioner's months of good faith, but unsuccessful, job searching persuade more than Respondent's well-intentioned, but speculative or unsuitable, job leads. It is now time for Respondent to provide Petitioner with a vocational evaluation.

    
    

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction over the subject matter. Section 120.57(1), Florida Statutes. (All references to Sections are to Florida Statutes. All references to Rules are to the Florida Administrative Code.)

13. Section 440.491(6)(a) requires Respondent to perform a training and education screening upon request of an injured

    employee or the workers’ compensation insurer. The stated purpose of this screening is “to determine whether [Respondent] should refer the employee for a vocational evaluation and, if appropriate, approve training and education or other vocational services for the employee.” The statute adds that Respondent may not approve formal training and education programs unless it determines that the “reemployment plan is likely to result in return to suitable gainful employment.”

14. Section 440.491(6)(b) requires an employer to pay additional temporary total compensation during training and education if the employee, who has already reached maximum medical improvement, “requires training and education to obtain suitable gainful employment.”

15. Section 440.491(1)(g) defines “suitable gainful employment” as

    employment or self-employment that is reasonably attainable in light of the employee’s age, education, work history, transferable skills, previous occupation, and injury, and which offers an opportunity to restore the individual as soon as practicable and as nearly as possible to his average weekly earnings at the time of the injury.

    
    

16. Rule 38F-55.009(6)(c) provides that Respondent shall not refer an injured employee to vocational evaluation if the

    employee "has transferable skills which would allow him to return to work in suitable gainful employment."

17. As an applicant, Petitioner has the burden of proving his entitlement to a vocational evaluation. Department of Transportation v. J. W. C. Company, Inc., 396

    So. 2d 778 (Fla. 1st DCA 1981).

    
    

18. Petitioner has proved his entitlement to a vocational evaluation. Respondent's job leads, as well as Petitioner's good faith job-seeking efforts, have failed, after a reasonable period of time, to secure Petitioner suitable gainful employment.

RECOMMENDATION

It is

RECOMMENDED that the Division of Workers’ Compensation enter a final order granting Petitioner’s request for training and education sponsored by the Division.

DONE AND ENTERED this 13th day of May, 1998, in Tallahassee, Leon County, Florida.

ROBERT E. MEALE

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 Filed with the Clerk of the

Division of Administrative Hearings this 13th day of May, 1998.

COPIES FURNISHED:

Peter C. Burkert Burkert & Hart

Post Office Box 2485

Fort Myers, Florida 33902-2485

Attorney Michael G. Moore, Sr. Department of Labor and

Employment Security

2012 Capital Circle, Southeast Suite 307, Hartman Building Tallahassee, Florida 32399-2189

Edward A. Dion, General Counsel Office of the General Counsel

Department of Labor and Employment Security

307 Hartman Building

2012 Capital Circle, Southeast Tallahassee, Florida 32399-2152

Douglas L. Jamerson, Secretary

Department of Labor and Employment Security

307 Hartman Building

2012 Capital Circle, Southeast Tallahassee, Florida 32399-2152

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this recommended order. Any exceptions to this recommended order must be filed with the agency that will issue the final order in this case.

Docket for Case No: 97-004746

Orders for Case No: 97-004746