vs. ) Case No. 01-3482
DEPARTMENT OF LABOR AND ) EMPLOYMENT SECURITY, DIVISION ) OF WORKERS' COMPENSATION, ) BUREAU OF REHABILITATION AND ) MEDICAL SERVICES, )
Intervenor. )
Pursuant to notice, a formal hearing in the above-styled case was held on November 6, 2001, in St. Petersburg, Florida, before Lawrence P. Stevenson, a duly-designated Administrative Law Judge of the Division of Administrative Hearings.
Matusek, McKnight, Poluse and Cangro, P.A.
St. Petersburg, Florida 33734-7729
2012 Capital Circle, Southeast Hartman Building, Suite 307 Tallahassee, Florida 32399-2189
For Intervenor: John H. Thompson, IV, Esquire
John H. Thompson, IV, P.A. Post Office Box 13188
St. Petersburg, Florida 33733-3188 STATEMENT OF THE ISSUE
Whether Glen Markee can return to suitable gainful employment without further training and education.
By letter dated April 5, 2001, Respondent awarded Intervenor, Glen Markee, a training/education program under Section 440.491, Florida Statutes. Petitioner, the insurance carrier for Mr. Markee’s former employer, contested the award of the program and timely requested an administrative hearing. Respondent referred this matter to the Division of Administrative Hearings on August 31, 2001. Mr. Markee’s Motion to Intervene was granted by an order entered on September 21, 2001. A formal hearing was held on November 6, 2001.
At hearing, Petitioner presented no witnesses and introduced no exhibits. Respondent, Department of Labor and Employment Security, Division of Workers' Compensation, presented the testimony of Mr. Markee; Glen Ellis, a
vocational rehabilitation consultant for Respondent; and Nancy Drwal, a vocational evaluator. Respondent’s Exhibits 1 through 4 were accepted into evidence.
The parties were granted 14 days following the filing of the transcript in which to file their proposed recommended orders. The Transcript was filed on November 21, 2001, and Petitioner and Respondent timely filed Proposed Recommended Orders. Mr. Markee did not file a proposed recommended order.
Glen Markee, a 44-year-old male, was employed as a roofer by Sam Damm Roofing, Inc. in Port Richey, commencing in November 1992.
Mr. Markee’s duties included lifting bundles of shingles weighing up to 90 pounds, tearing off roofing, and lifting tar kits weighing 100 pounds. On April 6, 1999, he sustained a right shoulder and cervical injury while lifting shingles and ripping out roof.
The accident was accepted as compensable. Mr. Markee received medical treatment, and was eventually referred to Dr. Harold Colbassani, a neurosurgeon. Following an MRI,
Dr. Colbassani diagnosed a right-sided disc herniation. Due to Mr. Markee’s apprehensions about surgery, a conservative course of treatment was attempted, including epidural injections and physical therapy.
The conservative treatment proved ineffective, and Mr. Markee underwent a cervical diskectomy and fusion on January 27, 2000.
Dr. Colbassani certified Mr. Markee at maximum medical improvement on July 5, 2000, with an impairment rating of seven percent. His restrictions include no lifting over 50 pounds, occasional lifting of 21 to 50 pounds, no repetitive bending, crouching, or stooping, and no reaching above shoulder level.
After being certified at maximum medical improvement, Mr. Markee sought further treatment from a pain management physician, starting in October 2000 and continuing to the time of the hearing. Petitioner claims that this continuing treatment indicates that Mr. Markee has not reached maximum medical improvement and thus that his application for re- employment services was premature.
Glen Ellis, a vocational consultant with Respondent and an expert in the field of vocational rehabilitation, evaluation and training, testified that Mr. Markee’s seeking pain relief would not necessarily mean that he had not reached maximum medical improvement for purposes of retraining.
Mr. Ellis testified that if an employee is medically stable and in need of no further active treatment for the injury itself, the Division may go forward with a retraining program.
Examples of medical instability cited by Mr. Ellis were the need for further surgery, incapacitation for significant periods of time, or taking medications which prevent the employee from driving or attending class. None of these problems applied to Mr. Markee’s seeking treatment for his chronic pain. Thus, Mr. Markee was medically stable for purposes of retraining.
Mr. Markee did not return to work after his injury.
He never formally approached Sam Damm Roofing about coming back to work, though he did have an informal conversation with the owner of the company, Sam Damm. Mr. Damm told Mr. Markee that he had no work for him consistent with his medical limitations.
Mr. Markee is a high school graduate. His prior work experience was almost exclusively as a roofer. He has also done some carpentry and briefly worked as a factory laborer.
Section 440.491, Florida Statutes, creates the re- employment services program and authorizes all recommended programs and expenditures to injured employees.
The ultimate goal of that statute in regard to an injured worker is to return the worker to suitable gainful employment.
"Suitable gainful employment" is defined to mean "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 injury." Section 440.491(1)(g), Florida Statutes.
At the time the Division approved Mr. Markee for retraining services, the general salary criterion established by rule was to restore the employee to at least 80 percent of his or her average weekly wages at the time of injury. Rule 38F-55.001(16), Florida Administrative Code (defined "underemployment" as employment in which the post-injury average weekly wage is less than 80 percent of his or her pre- injury average weekly wage).
The Division has established a process to determine whether an individual merits re-employment services. The process begins with orientation. The employee is given a DWC- 23, which is the application for re-employment services. The employee is requested to sign the DWC-23 and to have the employer sign a section of the form that says it has no job available either modified or accommodated for the employee at this time.
Shortly after orientation, the Division requests medical records from the carrier to determine the employee's restrictions.
Once all the paperwork is received, one of the Division nurses reviews the medical records from the claimant's physician, the maximum medical improvement date, and permanent restrictions, work history, and education.
The Division performs a transferable skills analysis, evaluating the claimant's educational background, hobbies, and interests to determine the best way to return the injured employee to work.
In the effort to return the employee to suitable gainful employment, the Division considers three options. First, the Division determines whether there are any direct placement options for the employee with another employer. If this is not feasible, the next option is on-the-job training. If that is not a viable choice, the file goes to an independent evaluator to determine what, if any, retraining options are available to the employee.
Once an injured worker is approved for retraining and education, the insurance carrier is obligated to pay temporary total rehabilitation benefits for at least 26 weeks, with an option to provide an additional 26 weeks for a maximum
of 52 weeks of benefits while the injured employee is in retraining.
Rehabilitation temporary total disability benefits are calculated by taking 66 2/3 percent of the claimant's average weekly wages 13 weeks prior to the claimant's date of accident.
Mr. Markee followed the prescribed orientation steps with Mr. Ellis of the Division. Mr. Ellis then referred him to Nancy Drwal, a vocational evaluator who was accepted as an expert in vocational rehabilitation, training and evaluation. Mr. Ellis provided Ms. Drwal with background information describing Mr. Markee's accident, work history, medical restrictions and other relevant medical information.
Ms. Drwal met with Mr. Markee on March 9, 2001, and gave Mr. Markee six tests over the course of five hours. The tests were designed to assess his intellectual, achievement, and aptitude levels.
Among the tests Ms. Drwal administered was a transferable skills analysis to identify jobs that would be compatible with Mr. Markee's work history, education, capabilities, and functional limitations. This analysis revealed no transferable occupations for Mr. Markee.
Ms. Drwal continued to search for some appropriate occupation short of retraining, because Mr. Markee was anxious
to work and hesitant to enter a training program. Ms. Drwal testified that Mr. Markee's reluctance to enter a training program was not unusual for a person who has been out of school for 20 years and is not academically inclined. Despite the results of the transferable skills analysis, Ms. Drwal looked at the local markets for an appropriate job for
Mr. Markee.
Mr. Markee expressed an interest in locksmithing.
Ms. Drwal contacted every locksmith in Pasco County, but could find none that were hiring or interested in on-the-job training for Mr. Markee.
Ms. Drwal looked into security guard positions, because that occupation easily accommodates physical restrictions, but could not find a position close to
Mr. Markee's average weekly wage of $530.65 per week, or
$14.26 per hour. The security guard openings paid between
$5.75 and $7.00 per hour, far short of 80 percent of Mr. Markee's pre-injury average weekly wage.
Mr. Markee expressed an interest in working with animals. Ms. Drwal looked into positions with zoos and animal sanctuaries. These employers either had no positions, had experience requirements that Mr. Markee could not meet, or paid significantly less than his pre-injury average weekly wage.
Ms. Drwal concluded that Mr. Markee would require retraining. She first suggested computer training, but upon investigation Mr. Markee found the scholastic requirements overwhelming. Ms. Drwal then suggested medical assistant school as more within the range of Mr. Markee's academic abilities and interests. Mr. Markee investigated the program and told Ms. Drwal that he thought he could do it.
Ms. Drwal conducted a labor market survey to make sure there would be medical assistant jobs in the local market when Mr. Markee completed his training. In a labor market survey, Ms. Drwal contacts employers to ascertain that positions are available at the time of the survey, or that the employer has hired within the past six months and anticipates hiring again in the next six months.
Ms. Drwal contacted five employers and determined that there would be jobs available and that the average starting salary was $10 per hour, ranging as high as $12 per hour. She determined that the job availability and salary made this an acceptable training program for Mr. Markee.
Ms. Drwal determined that the duties of a medical assistant fell within Mr. Markee's medical restrictions. Medical assistants perform patient preparation, take vital signs, weigh patients, draw blood, and enter some patient
information into the office computer. The job does not involve lifting.
Ms. Drwal determined that Mr. Markee was a "very motivated" person and would be able to complete the program. The medical assistant school is not academically intense. The student must learn medical terminology, but the program lasts only 31 weeks and involves a hands-on internship at a doctor's office.
Mr. Markee was approved for retraining in the medical assistant program at the Central Florida Institute in Palm Harbor. He commenced the program in April 2001. He has been a straight "A" student and at the time of the hearing was completing a 35-hour per week internship at the New Port Richey Medical Center.
Based on Mr. Markee's transferable skills analysis, previous work history, previous educational background, and the results of testing done by the independent evaluator, the best way to return him to suitable gainful employment is through retraining.
Petitioner failed to show that retraining Mr. Markee through the medical assistant program will not return him to suitable gainful employment.
The record gives no indication that Petitioner ever informed the Division indicating whether it had suitable employment within Mr. Markee's restrictions.
Mr. Markee's restrictions prevent him from returning to the occupation of a roofer.
Mr. Markee appeared to have the capability to obtain a job. However, the Division's goal, as mandated by statute, is to assist him to obtain employment at or near his pre- injury average weekly earnings of $530.65.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding. Section 120.57(1), Florida Statutes.
The burden of proof is on Petitioner. Petitioner must show by a preponderance of the evidence that Mr. Markee can return to suitable gainful employment without formal training and education. Young v. Department of Community Affairs, 625 So. 2d 831 (Fla. 1993). Prior administrative law judges have held that Petitioner has the burden of proof in reemployment disputes arising out of Section 440.491(6), Florida Statutes. See Marcella M. Mika v. Department of Labor and Employment Security, Division of Workers' Compensation, DOAH Case No. 96-2573; Katherine Cronk v. Department of Labor and Employment Security, Division of Workers' Compensation,
DOAH Case No. 98-4973; Michael J. Digeronimo v. Department of Labor and Employment Security and Home Depot, DOAH Case No.
96-1382; James Coady v. Department of Labor and Employment Security, Division of Workers' Compensation, DOAH Case No. 99- 1510; James Wiese, Jr. v. Department of Labor and Employment Security, Division of Workers' Compensation, DOAH Case No. 97- 4746; and Francis A. Bustard, IV v. Department of Labor and Employment Security, Division of Workers' Compensation, DOAH Case No. 98-4105.
In each of the above-referenced cases, Petitioner was a claimant disputing the denial of Division-sponsored services. However, in Roadhouse Grill and AIG Claims Services, Inc. v. Department of Labor and Employment Security, Division of Workers' Compensation, DOAH Case No. 99-4782, the administrative law judge observed that:
fundamental fairness requires all Petitioners, whether claimants or carriers, to be treated alike. Although these reemployment disputes are heard by administrative law judges as opposed to judges of compensation claims in accordance with Ring Power Corporation vs. Campbell, 697 So. 2d 203 (Fla. 1st DCA 1997), they are, for all intents and purposes, cases which deal with and are encompassed by Workers' Compensation Law.
* * *
The procedural posture of reemployment disputes which are heard by the Division of Administrative Hearings pursuant to Section 440.491, Florida Statutes, and Ring Power
are different than a standard agency/individual dispute. The posture of the reemployment services cases is such that there are two interested parties in every case in addition to the Division of Workers' Compensation. The first interested party is the claimant who requests reemployment services. If those services are denied, then the claimant has the right to file a petition requesting a hearing. In those cases, administrative law judges have repeatedly held that the burden of proof is on Petitioner.
Similarly, if the Division determines that
a claimant needs retraining, then the carrier has the right to file a petition requesting a hearing. The intent of the workers' compensation law is that carriers and claimants are on equal footing regarding the adjudication of compensation disputes. This equal footing should also be present in the administrative arena.
The undersigned finds this reasoning persuasive.
Section 440.491(6)(a), Florida Statutes, 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. 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. The division is authorized to expend moneys from the Workers' Compensation Administration Trust Fund, established by s. 440.50, to secure appropriate training and education or other
vocational services when necessary to satisfy the recommendation of a vocational evaluator. The division shall establish training and education standards pertaining to employee eligibility, course curricula and duration, and associated costs.
Section 440.491(1)(g), Florida Statutes, provides:
DEFINITIONS.--As used in this section, the term:
* * *
"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 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 injury.
Rule 38F-55.009(5)(b), Florida Administrative Code, the rule in effect at the time the Division approved
Mr. Markee for retraining services, provides that the Division shall not provide any additional re-employment services or refer the injured employee for a vocational evaluation if the employee's medical condition is unresolved or unstable, until such time as the condition becomes stable. The evidence established that Mr. Markee's condition was stable, notwithstanding his continued treatment for relief of chronic pain.
The purpose of the Division's program is to return the injured worker to suitable gainful employment as quickly
as possible. The Division has presented persuasive evidence that the best way to do so in this case is through formal training and education.
RECOMMENDED that a final order be entered denying the relief requested by Petitioner.
DONE AND ENTERED this 27th day of December, 2001, in Tallahassee, Leon County, Florida.
__________________________________ LAWRENCE P. STEVENSON
Filed with the Clerk of the Division of Administrative Hearings this 27th day of December, 2001.
and Cangro, P.A. Post Office Box 7729
St. Petersburg, Florida 33734-7729
2012 Capital Circle, Southeast Hartman Building, Suite 307 Tallahassee, Florida 32399-2189
John H. Thompson, IV, Esquire John H. Thompson, IV, P.A. Post Office Box 13188
St. Petersburg, Florida 33733-3188
Mary B. Hooks, Secretary Department of Labor and
2012 Capital Circle, Southeast Hartman Building, Suite 307 Tallahassee, Florida 32399-2189
2012 Capital Circle, Southeast Hartman Building, Suite 307 Tallahassee, Florida 32399-2189
15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.
