STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

KATHERINE L. CRONK, )

)

Petitioner, )

)

vs. ) Case No. 98-4973

)

DEPARTMENT OF LABOR AND )

EMPLOYMENT SECURITY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this matter was heard on February 9, 1999, in Jacksonville, Florida, by Donald R. Alexander, the assigned Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Katherine L. Cronk, pro se

2051 Southhampton Road

Jacksonville, Florida 32207-8733

For Respondent: Nancy Staff Slayden, Esquire

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 capable of returning to suitable gainful employment through vocational services, as proposed by Respondent.

PRELIMINARY STATEMENT

This matter began on August 13, 1998, when Respondent, Department of Labor and Employment Security, Division of Workers' Compensation, issued a letter advising Petitioner, Katherine L. Cronk, that she was capable of returning to suitable gainful employment through vocational services. Thereafter, Petitioner requested a formal hearing under Section 120.569, Florida Statutes, to contest the proposed action. The matter was referred by Respondent to the Division of Administrative Hearings on November 5, 1998, with a request that an Administrative Law Judge be assigned to conduct a formal hearing.

By Notice of Hearing dated November 23, 1998, a final hearing was scheduled on February 9, 1999, in Jacksonville, Florida.

At final hearing, Petitioner testified on her own behalf and presented the testimony of Faith Martinache, a former co-worker. Also, she offered Petitioner's Exhibits 1-6. All exhibits were received in evidence. Respondent presented the testimony of David E. Miller, a senior vocational counselor; Deborah B. Wright, a vocational rehabilitation consultant; and Jerry G. Albert, a rehabilitation consultant who was accepted as an expert in vocational counseling, rehabilitation, and evaluation. Also, it offered Respondent's Exhibits 1-3. All exhibits were received in evidence.

The transcript of hearing was filed on February 24, 1999. Proposed findings of fact and conclusions of law were filed by

Petitioner and Respondent on March 9 and 10, 1999, respectively, and they have been considered by the undersigned in the preparation of this Recommended Order.

FINDINGS OF FACT

Based upon all of the evidence, the following findings of fact are determined:

1. In this proceeding, Petitioner, Katherine L. Cronk, who sustained an on-the-job injury, challenges a preliminary decision by Respondent, Department of Labor and Employment Security, Division of Workers' Compensation (Division), that she is able to return to employment in the same field in which she suffered an injury. Cronk contends that due to surgery on both hands for bilateral carpal tunnel syndrome, and recurrent pain and swelling in her hands, she cannot return to the same type of work. As relief, she has asked that she be given an opportunity to enter the Division's retraining program to obtain new job skills for another type of employment. At the present time, she is driving a limousine on a part-time basis to avoid further injuries to her hands and to provide income since her workers' compensation benefits have been terminated.

2. Petitioner, who graduated from high school in 1977, and received vocational training in the field of civil engineering, worked in hand drafting until 1990. At that time, she began working in computer-assisted drafting and design (CADD) for a Jacksonville engineering firm, Prosser, Hallock, and Kristoff.

3. On February 19, 1997, she sustained a workers' compensation injury and was treated by Dr. Steven Lancaster for bilateral carpal tunnel syndrone. On November 7, 1997, she

   reached maximum medical improvement with a nine percent permanent

   impairment rating. She was assigned permanent work restrictions by Dr. Lancaster which included:

   May frequently lift and carry up to ten (10) pounds with occasional lifting and carrying up to twenty (20) pounds.

   Restrictions on repetitive hand activities (simple grasping, pushing/pulling and fine manipulation) can do some of this to a mild degree - to pain tolerance.

   
   

4. In a follow-up report issued on December 8, 1997, Dr. Lancaster noted that Petitioner should not do "repetitive typing or keyboard activities." In his latest medical report dated January 27, 1999, he stated that "recommendations and limitations are unchanged from before and need to restrict on repetitive movements/keyboarding, etc."

5. In order to be eligible for Division services, an injured employee must be "medically stable," must have reached maximum medical improvement, and must have assigned medical limitations. Petitioner had met all of these criteria when she first contacted the Division's office in Jacksonville, Florida, by telephone on December 3, 1997. She requested information regarding the services that the Division provided. Petitioner was instructed to attend an orientation on December 18, 1997. A screening process was then begun on January 28, 1998.

6. When Petitioner approached the Division, she was under the impression that the Division would provide her with a "retraining program." This impression was probably the result of conversations with a former co-worker, Mike Meadows, who had also

   been injured on the job and had received approval to complete,

   at Division expense, the necessary course work (54 hours) for his engineering degree at the University of North Florida.

7. The Division, however, essentially provides a "return- to-work" program for injured employees, rather than a program for a career change. This is accomplished in one of three ways. First, if the employee has good transferable skills and limitations which permit him or her to return to the workforce and to gain suitable employment, the employee is returned to work through a direct placement. Alternatively, the Division may contract with an employer to provide the employee with on-the-job training for a specific job. Finally, if the first two options are not viable, the Division will consider providing the employee with formal training and education. Under this latter alternative, the insurance carrier for the employer is required to pay temporary total rehabilitation payments (equaling approximately 2/3 of the prior average weekly wage) to the injured employee to cover living expenses during the retraining period, for a maximum of 52 weeks.

8. When a counselor first spoke by telephone with Petitioner on December 3, 1997, Petitioner indicated that she "[thought] she [could] do CADD," and she would like "the opportunity of trying to return to work." In a follow-up meeting with David E. Miller, a counselor, on February 27, 1998, Petitioner expressed an interest in being trained as a psychotherapist.

9. On March 27, 1998, Petitioner was given a series of tests designed to identify potential careers in which she might be successful. She had mainly flat clusters, which meant she had no special interest in any vocation. After the final medical reports were received, the Division held a "staffing" in May 1998 for the purpose of determining employment opportunities.

10. Because her former employer did not have an open position, the Division referred Petitioner to Jerry Albert, a certified vocational evaluator under contract with the Division who assists injured employees in finding suitable gainful work. At that time, Miller advised Albert that there was voice- activated software (VAS) for CADD systems, and it might be "something worth exploring" given Petitioner's medical limitations, her years of experience in the field, and the Division's goal of returning her to work.

11. When Petitioner and Albert first met on July 6, 1998, Petitioner expressed a desire in becoming a private investigator. Albert arranged a job interview with a private investigator, and Petitioner was offered an on-the-job training position. However, she declined the offer.

12. After several more meetings with Petitioner that same month, Albert issued a Vocational Evaluation on July 27, 1998, in which he recommended that Petitioner return to suitable gainful employment in some aspect of CADD, using VAS equipment and training paid for by the Division. The Division adopted this

    recommendation in its proposed agency action issued on August 13, 1998. Petitioner disagreed with this proposal and has initiated this proceeding to contest that action.

13. Petitioner basically fears that a return to CADD will cause her to suffer even more injuries to her hands. While she concedes that she can do "a minimal amount of computer work," Petitioner contends that, given her medical restrictions, she cannot return to CADD work, even with VAS, because of the hand work required by CADD. Instead, she has asked that she be allowed to enroll at Florida Community College at Jacksonville and pursue a degree in business management. She then intends to use her degree in operating a limousine service. At the time of hearing, she had not formulated a specific business plan for such a business, nor was there any competent evidence that a two-year degree was a prerequisite to successfully starting and operating that type of business, or that another limousine service is even needed in the Jacksonville area. Absent this type of information, the Division would be less than prudent in agreeing to pay for a college education.

14. Unfortunately, Dr. Lancaster did not testify in this proceeding (either live or by deposition) so that he could explain the exact restrictions he had in mind for Petitioner when he prepared his reports. Petitioner asserts that in her consultations with Dr. Lancaster, he specifically forebade her to return to any type of keyboarding. This interpretation of the limitations is found to be the most logical and reasonable since Petitioner suffers from pain and swelling in her hands even after minimal amounts of keyboarding. On the other hand, the Division

    interprets the medical restrictions as permitting Petitioner to return to some aspect of CADD, using VAS. On this issue,

    Dr. Lancaster does state, rather clearly, that Petitioner should engage in "no . . . repetitive typing," which supports Petitioner's assertion. Therefore, the undersigned finds that Petitioner is medically restricted from engaging in any type of repetitive typing or keyboarding.

15. In addition, Petitioner's testimony that she cannot tolerate the duties of her former job has been accepted as being the most credible on this issue. As noted above, she now experiences pain and swelling whenever she utilizes a keyboard for even a short period of time. Also, she cannot write for long periods of time without extensive pain. Indeed, she indicated that it took her hours just to complete a multi-page letter to the Division. The Division points out, however, that when she performed a five-minute manual speed and dexterity test for the Division, she completed the test with remarkable speed and accuracy. After the test, though, Petitioner suffered pain and swelling in her hands for several days.

16. Petitioner established that even if she is trained at Division expense in VAS for CADD, she still must use graphics, an essential part of CADD, which requires that she use her hands to make drawings and other renderings. Given her present limitations, this is not practicable. At the same time, VAS does not eliminate all of the repetitive keyboarding. Even the

    Division concedes that, at best and without considering graphics, VAS would eliminate no more than eighty percent of repetitive keyboarding. Given these circumstances, to recommend that Petitioner focus on an area of CADD where she could maximize voice-recognition is not realistic and would be contrary to

    Dr. Lancaster's recommendation. Therefore, it is found that when considering Petitioner's physical restrictions, a return to work in the CADD area is "employment that is [not] reasonably attainable." Another return-to-work alternative is more appropriate.

17. At hearing, Albert concluded that, based upon his study of VAS and Petitioner's medical limitations, it was feasible for Petitioner to return "to some aspect" of CADD. This conclusion was based upon his interpretation of the medical limitations, which has been rejected above, and other considerations. Among these was a single testimonial he found in the Internet by a resident of Alaska who had successfully returned to her cartography job using VAS. He also relied partly upon conversations with several Jacksonville area employers who indicated they would "consider" someone for a CADD position who utilized VAS. Since none had ever hired an injured employee using VAS, there is no indication whether such an arrangement has been sucessful. Further, there is nothing of record to show the amount of hand work required for each of those positions. Albert further relied in part on information obtained from sellers of

    VAS, all of whom have an obvious self-interest in promoting their products. These shortcomings undermine the credibility of his assessment. Finally, Albert was critical of Petitioner's vacillation on career goals in the short time since her injury.

    This is understandable, though, given the fact that Petitioner

    has suffered a career-ending injury and must now enter a new field of employment in mid-life.

    CONCLUSIONS OF LAW

    
    

18. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties hereto pursuant to Sections 120.569 and 120.57(1), Florida Statutes.

19. As the party seeking relief, Petitioner bears the burden of proving by a preponderance of the evidence that she is entitled to formal training and education in order to return to suitable gainful employment. Fla. Dep't of Transportation v. J. W. C. Co., Inc., 396 So. 2d 778 (Fla. 1st DCA 1981).

20. Section 440.491(6)(a), Florida Statutes (1997), provides in part as follows:

    Upon referral of an injured employee by the carrier, or upon the request of the injured employee, the division shall conduct a training and education screening to determine whether it should refer the employee for a vocational evaluation and, if appropriate, approve training and education or other vocational services for the employee. The division may not approve formal training and education programs unless it determines, after consideration of the reemployment assessment, pertinent reemployment status reviews or reports, and such other relevant factors as it prescribes by rule, that the reemployment plan is likely to result in return to suitable gainful employment.

21. The term "suitable gainful employment" is defined in Section 440.491(1)(g), Florida Statutes (1997), as follows:

    "Suitable gainful employment" means 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 opportunity to restore the individual as soon as practicable and as nearly as possible to his average weekly earnings at the time of injury.

    
    

22. The greater weight of evidence supports a conclusion that Petitioner's return to CADD, using VAS, is not "reasonably attainable" in light of her injury and current medical restrictions. Therefore, the Division's proposal that Petitioner "is capable of returning to suitable gainful employment [in that field] through vocational services" is not appropriate.

23. Under the Divisions's return-to-work program, if a person does not have transferable skills and limitations which would permit her to return to the workforce and to suitable gainful employment in her prior field of work, the Division will train that person to do a specific job through on-the-job training. Alternatively, an injured worker may be approved for formal training and education for a new career. To qualify for this latter option, however, there must be some plan or other information that would demonstrate that the new training is required to allow one to return to suitable gainful employment in the desired field. In this respect, the record is lacking.

24. As a former injured worker, Petitioner is entitled to participate in the Division's return-to-work program. Accordingly, if she cannot be returned to suitable gainful employment through on-the-job training, she should be considered for formal training and education in a new career. Because this

process has been continuing for over a year, and Petitioner's workers' compensation benefits have been terminated, thereby

placing her in financial distress, the process should be accomplished at the earliest possible time.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is

RECOMMENDED that the Department of Labor and Employment Security enter a final order determining that Petitioner cannot be returned to her original job due to permanent medical restrictions, and that she is entitled to further Division services for placement in a specific job through on-the-job training, or if that alternative is not feasible, that formal training and education for a new career be considered.

DONE AND ENTERED this 23rd day of March, 1999, in Tallahassee, Leon County, Florida.

DONALD R. ALEXANDER

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 23rd day of March, 1999.

COPIES FURNISHED:

Katherine L. Cronk, Esquire 2051 Southhampton Road

Jacksonville, Florida 32207-8733

Nancy Staff Slayden, Esquire Department of Labor and

Employment Security Hartman Building, Suite 307

2012 Capital Circle, Southeast Tallahassee, Florida 32399-2189

Mary Hooks, Secretary Department of Labor and

Employment Security Hartman Building, Suite 303

2012 Capital Circle, Southeast Tallahassee, Florida 32399-2152

Edward A. Dion, General Counsel Department of Labor and

Employment Security Hartman Building, Suite 307

2012 Capital Circle, Southeast Tallahassee, Florida 32399-2152

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order within fifteen days of this order. Any exceptions to this Recommended Order should be filed with the Department of Labor and Employment Security.

Docket for Case No: 98-004973

Orders for Case No: 98-004973