vs. ) Case No. 00-2753
DEPARTMENT OF LABOR AND ) EMPLOYMENT SECURITY, DIVISION ) OF WORKERS’ COMPENSATION, ) BUREAU OF REHABILITATION AND ) MEDICAL SERVICES, )
Respondent. )
Robert E. Meale, Administrative Law Judge of the Division of Administrative Hearings, conducted the final hearing in St.
Petersburg, Florida, on November 7, 2000.
For Respondent: Elana J. Jones
2012 Capital Circle, Southeast Suite 307, Hartman Building Tallahassee, Florida 32399-2189
The issue is whether Petitioner is entitled to reemployment services from Respondent.
By letter dated December 23, 1999, Respondent informed Petitioner that it had completed a screening, pursuant to Section 440.491, Florida Statutes, and had determined that Petitioner was not entitled to additional services because Petitioner had terminated suitable gainful employment.
By letter dated January 10, 2000, Petitioner contested the facts on which Respondent had based its determination and requested a formal hearing.
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 December 4, 2000.
Petitioner was born on March 2, 1953. After graduating from high school, he served four years in the United States Air Force as a munitions maintenance specialist. He served in Vietnam.
After completing his military service, Petitioner began woodworking, mostly remodeling and home construction. For the past 15 years, his woodworking has involved higher-end work, in which the materials and labor are more expensive. During this time, Petitioner has worked on staircases, yachts, elevator interiors, and more specialized millwork.
As contrasted from general carpentry, Petitioner’s woodworking requires more tools and greater manual dexterity to shape the wood, which is characterized by numerous intricate curved cuts. Petitioner’s woodworking requires lots of templates, routing, and changing cutters. This higher-end woodworking requires heavy reliance on power tools, whose cutting edges may turn at 25,000 revolutions per minute.
On August 23, 1999, Petitioner was employed as a high- end woodworker at Exodus Fine Wood Products, which made yacht interiors. During the preceding 20 months, Petitioner had worked on elevator interiors, and, before that, he had worked on yacht interiors.
Petitioner had been employed at Exodus for only ten weeks when, while using an inverted router without a guard, his right thumb was pulled into the blade. The blade nearly severed the top joint of the right thumb at the distal joint. A physician at the hospital was unable to save the joint, so he completed the amputation.
After missing two or three weeks of work, Petitioner had to return to work to earn a living. When he returned to work, his right thumb was still bandaged, and Petitioner tried to work slowly and carefully. Although his employer had changed the procedure that Petitioner had been performing when he had been injured, Petitioner found the new way still unsafe, especially
due to the loss of the end of his right thumb, so Petitioner did the procedure differently--and three times more slowly.
For sometime, Petitioner tried to work at Exodus, but he found that he could not adequately hold the wood to make the necessary cuts, as, among other things, his right-hand grip was weaker than it had been before the injury and he had lost his previous dexterity. He repeatedly came close to reinjuring himself on a daily basis. Wood sometimes flew from the machine he was using. Although he maintained adequate work quality, the work rate after the injury had slowed considerably. However, Petitioner refused to work on extremely small pieces requiring the use of a router without a guard; he thus did not work on 20 percent of the work that Exodus did.
An occupational therapist completed a report on Petitioner on October 28, 1999. Assessing the relative strength of the right hand, as compared to the uninjured left hand, the occupational therapist noted that Petitioner had lost from 31 to
86 percent of his strength, depending on the specific task. Noting that Petitioner felt that his right hand had returned 75 percent back to normal, the therapist mentioned that Petitioner felt that, functionally, his right hand was only 40 to 50 percent back to normal. In particular, Petitioner complained of his inability to hold things because he had lost his leverage.
On November 2, 1999, a rehabilitation therapist evaluated Petitioner to assess his physical and functional
capabilities. The summary of results notes “significant wrist, elbow, and shoulder compensations . . . during manual dexterity testing.” This testing confirmed “significantly decreased coordination, strength, and some sensory deprivation in the right thumb.” The evaluation states:
While [Petitioner] was able to perform the tasks on an occasional basis, his performance during the evaluation demonstrates a significant safety risk when using heavy machinery and power tools as he does in his occupation. . . . The possibility of vocational counseling may also be considered to determine other gainful employment [Petitioner] may be suitable for.
Petitioner attempted to obtain the consent of his employer to workplace changes that would have made the work safer, such as by requiring the use of a router guard at all times. Failing at obtaining such changes, Petitioner finally resigned, on November 19, 1999, motivated by the fear that he could no longer do the job safely.
By Notice of Employee Separation dated November 19, 1999, Petitioner stated that he was resigning due to the advice of his doctor that “risk is greater for reinjury[--]should be retrained.” For rehire status, the form states that Petitioner is “subject to rehire with reservation.”
At the bottom of the Notice of Employee Separation, just above the employer’s signature, is the statement, evidently written by the employer: “Employer agrees with . . . doctor’s
recommendation as well.” Elaborating, the employer wrote on a separate page:
Mr. Gresko’s employment at Exodus is a more dangerous undertaking than if he had not had his accident. [Psychologically] + physically to some extent he is a [sic] greater risk of re-injuring himself. We would re-hire or continue his employment from this point, but if re-training is available we think Mr.
Gresko should take advantage of it.
On November 15, 1999, a hand surgeon reported that testing of manual dexterity revealed that Petitioner “has significantly decreased coordination, strength, and some sensory deprivation of the right thumb.” Concerned that a valid psychological component could interfere with Petitioner’s return to his present duties, the surgeon opined that Petitioner still has a functional capacity, but “not in this specific line of work.” The surgeon concluded that Petitioner should receive some rehabilitation training.
On November 29, 1999, a case manager of a managed care provider determined that, on November 9, Petitioner had reached maximum medical improvement and could return to gainful employment with no “permanent physical restrictions,” although he was 11 percent permanently physically restricted.
At this time, Petitioner requested retraining services from Respondent. By letter dated December 23, 1999, Respondent determined that Petitioner was ineligible for services because he had terminated suitable gainful employment. Therefore,
Respondent declined to refer Petitioner for a vocational evaluation.
When Respondent determined that Petitioner was ineligible for retraining services, Respondent became depressed, did not do anything for one and one-half months, and then obtained his certificate as a correctional officer in June or July 2000.
In July 2000, after completing his training, Petitioner began work as a correctional officer at the Jasper Correctional Institute. However, during training, he had torn his rotator cuff while bench-pressing weights. After ignoring the injury for several months, Petitioner asked a physician to examine his shoulder after he had been on the job a short time. The Department of Corrections then placed Petitioner on medical leave.
High-end woodworking, of the kind that Petitioner was performing at the time of the injury, is not suitable gainful employment for him due to the physical limitations arising from the loss of the distal joint of Petitioner’s right thumb. Petitioner tried to return to his former work, but could not do the work safely and efficiently. There is no credible evidence to suggest that Petitioner voluntarily terminated this employment. To the contrary, all of the credible evidence establishes that Petitioner terminated this employment out of a
well-informed, reasonable concern for his ongoing safety and the preservation of his remaining upper extremities.
CONCLUSIONS OF LAW
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.)
Section 440.491(6)(a) provides:
Upon referral of an injured employee by the carrier, or upon the request of an 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.
Section 440.491(1)(h) defines “vocational evaluation”
as:
a review of the employee’s physical and intellectual capabilities, his or her aptitudes and achievements, and his or her work-related behaviors to identify the most cost-effective means toward the employee’s return to suitable gainful employment.
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 or her average weekly earnings at the time of the injury.
Rule 38F-55.009(6) prohibits Respondent from referring an injured employee for a vocational evaluation if the employee has returned to suitable gainful employment due to placement services provided by Respondent, has not documented permanent physical restrictions related to the injury, or has transferable skills that would allow him to return to work in suitable gainful employment.
Petitioner has the burden of proof. Department of Transportation v. J. W. C. Company, Inc., 396 So. 2d 778 (Fla. 1st DCA 1981).
Petitioner has proved that high-end woodworking is no longer suitable gainful employment following the work-related accident that claimed the tip of Petitioner’s right thumb from the distal joint. Petitioner has proved that he is entitled to the reemployment services from Respondent that he seeks in this case.
RECOMMENDED that the Division of Workers’ Compensation, Bureau of Rehabilitation and Medical Services, enter a final order granting Petitioner’s request for reemployment services, commencing with a vocational evaluation.
ROBERT E. MEALE
Mary B. Hooks, Secretary Department of Labor and
The Hartman Building, Suite 303 2012 Capital Circle, Southeast Tallahassee, Florida 32399-2152
The Hartman Building, Suite 307 2012 Capital Circle, Southeast Tallahassee, Florida 32399-2189
Elana J. Jones Senior Attorney
2012 Capital Circle, Southeast Suite 307, Hartman Building Tallahassee, Florida 32399-2189
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.
