STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RONALD SMITH, )

)

Petitioner, )

)

vs. )

)

DEPARTMENT OF LABOR AND ) EMPLOYMENT SECURITY, DIVISION ) OF WORKERS’ COMPENSATION, ) BUREAU OF REHABILITATION AND )

MEDICAL SERVICES, ) Case No. 97-4747

)

Respondent, )

)

and )

)

CRAWFORD AND COMPANY, )

)

Intervenor. )

)

RECOMMENDED ORDER

Robert E. Meale, Administrative Law Judge of the Division of Administrative Hearings, conducted the final hearing by videoconference in Tallahassee, Florida, on December 18, 1997. Respondent’s counsel and one of its witnesses attended the hearing in Tallahassee. Petitioner, Petitioner’s counsel, the remaining witnesses, and the court reporter attended the hearing by videoconference in Fort Myers, Florida.

APPEARANCES

For Petitioner: Peter C. Burkert

Burkert & Hart

Post Office Box 2485

Fort Myers, Florida 33902

For Respondent: Attorney Michael G. Moore, Sr.

Department of Labor and Employment Security

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

For Intervenor: Russell Schropp

Henderson Franklin Post Office Box 280

Fort Myers, Florida 33902 STATEMENT OF THE ISSUE

The issue is whether Petitioner is entitled to formal training and education sponsored by the Division of Workers' Compensation, pursuant to Section 440.491(6), Florida Statutes.

PRELIMINARY STATEMENT

By letter dated June 23, 1997, Respondent advised Petitioner and Intervenor, the workers’ compensation insurer, 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 had refused reemployment, thus voluntarily limiting his income and employment opportunities.

By Petition for Hearing and/or Formal Proceedings dated July 9, 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 to his average weekly wage that he had at the time of his accident.

At the hearing, the Administrative Law Judge granted the Petition for Leave to Intervene dated December 9, 1997, and filed by Crawford and Company.

At the hearing, Petitioner called three witnesses and offered into evidence no exhibits. Respondent called one witness and offered into evidence five exhibits. Intervenor called no witnesses and offered no exhibits into evidence.

The parties jointly offered four exhibits. All exhibits were admitted.

The court reporter filed the transcript on February 4, 1998.

FINDINGS OF FACT

1. From 1985 through 1995, Petitioner was employed by Truly Nolen, a pest-control company. In April 1995, Petitioner was a termite supervisor engaged in fumigation work. In this job, Petitioner set up crews and sent different crews to do jobs. He scheduled work and performed actual work on the job, such as dragging sand bags around a building and putting tarps on the roofs of buildings.

2. While so employed on April 26, 1995, Petitioner fell while spreading tarp on a roof. Petitioner injured his back,

   suffering what the neurosurgeon described as “fundamentally a frozen back,” and was unable even to bend forward and touch his knee caps. Diagnosed with a herniated disc in the lumbar region, Petitioner had surgery on September 12, 1995.

3. Although the surgery repaired the herniated disc, Petitioner’s recovery was prolonged. The surgeon determined that Petitioner reached maximum medical improvement on January 19, 1996. At this time, the surgeon stated that Petitioner was capable of working in light- to medium-duty work with no lifting of more than 50 pounds and no repetitive lifting of 25 pounds or more.

4. The surgeon assigned Respondent a 12 percent impairment of the person as a whole, but later agreed that it was a 16 percent permanent partial impairment. The surgeon believes that Petitioner may have intermittent problems with his back for the rest of his life, but it is not medically probable that he will require surgery or any other form of aggressive intervention.

5. The day after being released by the surgeon, Petitioner met with the branch manager of the Truly Nolen office, out of which Petitioner had worked at the time of his accident. For about one month, Petitioner had been performing part-time, light office duties at this office as part of a work-hardening program.

6. The branch manager offered Petitioner a residential pest-control route, rather than Petitioner’s old job as a termite supervisor. Although not entirely clear in the record, the office appears to have employed only one termite supervisor. By the time that Petitioner was able to return to work, the branch manager had hired another person for the job of termite supervisor. It is, in any event, unclear whether Petitioner would have been able to do his old job anymore, as it required the supervisor to drag heavy tarps over the tops of buildings, as Petitioner was doing when he fell and was injured.

7. Petitioner and the branch manager discussed two routes, but the manager was inclined to give Petitioner the route that Petitioner found less preferable. Petitioner visited one house on the route and determined that the value of the route, as posted in the office, was less than one-half of what Petitioner had been making at the time of the injury. Petitioner then informed his supervisor that he would not take the job due to inadequate money. Petitioner admits that money, rather than the physical demands of the job, was the sole reason for declining the job offer.

8. The most productive pest-control routes in this Truly Nolen office earn $35,000 annually. Petitioner could probably earn $20,000 to $25,000 from the route that the branch manager offered him.

9. Two weeks prior to the hearing, Petitioner started work as a car salesperson at a local Chevrolet dealer. He was earning about $250 weekly and 4 percent of the profit on each car sold. He had sold only one car for a commission of $50. Previously, he had worked on an occasional basis for his uncle driving a mowing tractor and earning $5.25 hourly; however, he had not worked over one week consecutively on this job.

10. At the time of his injury, Petitioner’s average weekly wage was about $800. He was born on January 15, 1966. Petitioner completed his formal education when he finished high school. Petitioner is a certified pest-control technician. Except for some general construction and service work experience, Petitioner’s entire work history consists of his employment with Truly Nolen.

11. The record does not disclose if Petitioner applied to Truly Nolen or its competitors for work as a termite supervisor or pest-control technician. Petitioner has not proved that he is physically unable to work in either position. To the contrary, it is likely that he could do the job as a pest-control technician, given his refusal to take the offer of such a job solely on monetary grounds and the relatively light physical demands of this work.

12. In light of Petitioner’s age, education, work history, transferable skills, previous occupation, and injury, the job offered by the branch manager in January 1996 gave

    Petitioner a chance to regain as soon as practicable and as nearly as possible his pre-accident average weekly wage.

    Thus, the branch manager’s offer to take a pest-control route represented suitable gainful employment.

    CONCLUSIONS OF LAW

    
    

13. 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.)

14. 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.”

15. 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.”

16. 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.

17. Respondent and Intervenor argue, in effect, that Petitioner is entitled to additional training and education only if they are required for him to obtain suitable gainful employment. This is the stated requirement of Section 440.491(6)(b), which predicates the payment of additional temporary total compensation upon the requirement of training and education to obtain suitable gainful employment. However, this statute is not directly relevant to this case.

18. Section 440.491(6)(b) applies to this case. This statute does not explicitly require that Respondent may approve training and education only if these services are necessary for suitable gainful employment. Section 440.491(6)(b) states only that Respondent shall approve training and education, “if appropriate.” The statute adds that Respondent may only approve training and education after determining that the reemployment plan is “likely to result in return to suitable gainful employment.”

19. It would seem logical, though, that Respondent should not be required to approve training and education for an injured employee already able to obtain suitable gainful employment. A contrary reading would allow an injured employee to reject one form of suitable gainful employment, which he was presently capable of performing, for another form of suitable gainful employment, which demands additional training and education. This would distort the statutory definition of “suitable gainful employment.” Thus, the requirement of Section 440.491(6)(b) that the training and education be necessary for suitable gainful employment is implicit in Section 440.491(6)(a). Rule 38F-55.009(6)(c), Florida Administrative Code, interprets the statute in this fashion.

20. As an applicant, 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 failed to show that the training and education that he seeks are necessary for him to obtain suitable gainful employment. The branch manager offered Petitioner a job that, on the facts of this case, constituted suitable gainful employment. By not taking the job, and perhaps showing that he was physically unable to do the work, Petitioner has left open the inference that he could have done the work, especially since his sole motive for declining the offer was monetary. Under the circumstances of

    the case, the offer constituted suitable gainful employment. Thus, on the present record, Petitioner received an offer of suitable gainful employment, declined it for personal reasons, and now seeks training and education for another type of suitable gainful employment. As noted above, this does not seem a wise interpretation of the statutes.

21. This result obviates the necessity of consideration of Petitioner's request for attorneys' fees.

RECOMMENDATION

It is

RECOMMENDED that the Division of Workers’ Compensation enter a final order denying Petitioner’s requests for training and education sponsored by the Division and attorneys' fees.

DONE AND ENTERED this 19th day of February, 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 19th day of February, 1998.

COPIES FURNISHED:

Peter C. Burkert Burkert & Hart

Post Office Box 2485

Fort Myers, Florida 33902

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

Employment Security

2012 Capital Circle, Southeast

307 Hartman Building Tallahassee, Florida 32399-2189

Russell Schropp Henderson Franklin Post Office Box 280

Fort Myers, Florida 33902

Edward A. Dion General Counsel

Department of Labor and Employment Security

2012 Capital Circle, Southeast

307 Hartman Building Tallahassee, Florida 32399-2189

Douglas L. Jamerson, Secretary Department of Labor and

Employment Security

2012 Capital Circle, Southeast

303 Hartman Building Tallahassee, Florida 32399-2189

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: 97-004747

Orders for Case No: 97-004747