vs. ) Case No. 99-1510
DEPARTMENT OF LABOR AND ) EMPLOYMENT SECURITY, DIVISION ) OF WORKERS' COMPENSATION, )
Respondent. )
This cause came on for formal hearing on May 25, 1999, in Jacksonville, Florida, and June 24, 1999, by video teleconference, before the Division of Administrative Hearings, by its Administrative Law Judge, Suzanne F. Hood.
For Respondent: Katrina D. Callaway, Esquire
The issues are whether Petitioner is eligible for agency- sponsored employment services or whether he is capable of returning to suitable, gainful employment via an offer of employment from his former employer.
By letter dated February 10, 1999, Respondent Department of Labor and Employment Security, Division of Workers' Compensation (Respondent) advised Petitioner James Coady (Petitioner) that he was ineligible for vocational services because he was capable of returning to work via an offer of suitable, gainful employment by his employer of injury. Petitioner filed a request for a formal administrative hearing to contest Respondent's decision. On March 30, 1999, Respondent referred this matter to the Division of Administrative Hearings.
On April 19, 1999, Administrative Law Judge Donald R. Alexander issued a Notice of Hearing, originally scheduling the case for hearing on May 18, 1999. However, Respondent filed an unopposed Motion to Continue on April 30, 1999. Judge Alexander issued a Second Notice of Hearing, granting this motion and rescheduling the case for hearing on May 25, 1999. Subsequently, the Division of Administrative Hearings transferred this matter to the undersigned.
At the hearing on May 25, 1999, Petitioner testified on his own behalf and offered 23 exhibits, which were accepted into evidence. Respondent presented the testimony of one witness and offered seven exhibits, which were accepted into evidence.
Thereafter, the parties agreed to continue the hearing by video teleconference.
On June 7, 1999, the undersigned issued a Notice of Video Hearing and Order of Instructions, scheduling the continuation of the hearing for June 24, 1999. The notice advised the parties that the Administrative Law Judge would be located in Tallahassee, Florida, and that other participants would be located in Jacksonville, Florida.
On June 14, 1999, the court reporter filed the Transcript of the May 25, 1999, proceeding.
During the June 24, 1999, video teleconference, Respondent presented the testimony of two witnesses. Petitioner presented the testimony of one rebuttal witness and offered one additional exhibit, which was accepted into evidence.
The parties were granted leave of ten days following the filing of the final volume of transcript in which to file their proposed recommended orders. The court reporter filed the Transcript of the June 24, 1999, proceeding on July 12, 1999.
Respondent filed its Proposed Recommended Order on July 22, 1999. As of the date of this Recommended Order, Petitioner has not filed a proposed order.
Petitioner began working for Ploof Truck Lines (Ploof) as a trainee over-the-road truck driver in August of 1995. Prior to his employment with Ploof, Petitioner worked in the aerospace industry. He had work experience in computer operations,
computer software programs, and assembly of electronic accessories.
Upon his employment with Ploof, Petitioner began a four- week training program, earning gross wages in the amount of $300 per week for the weeks ending August 24, 1995, August 31, 1995, September 7, 1995, and September 14, 1995. Upon completion of the training program, Petitioner worked as a single-seat truck driver, earning the following amounts: (a) $107.99, for the week ending September 21, 1995; (b) $160.25, for the week ending September 28, 1995; (c) $388.92, for the week ending October 5, 1995; (d) $601.49, for the week ending October 12, 1995;
(e) $489.43, for the week ending October 19, 1995; (f) $571.53, for the week ending October 26, 1995; (g) $507.35, for the week ending November 2, 1995; (h) $594.19, for the week ending November 9, 1995; and (i) $526.43, for the week ending
November 16, 1995.
A trained truck driver's earnings depend on his or her productivity. The average salary of an experienced single-seat truck driver falls in the range of $400 to $600 per week. A novice single-seat truck driver earns an average salary in the range of $300 to $600 per week. Petitioner was a novice single- seat truck driver when he was injured.
One of the duties that a truck driver has is to assess the safety of a tractor and trailer before accepting a hauling assignment. In other words, the truck driver must determine
whether the tractor and trailer meet legal road requirements. In this case, there is no persuasive evidence that Petitioner's wages were lower than average at any time because Ploof did not have a "road ready" tractor/trailer available. To the contrary, Petitioner rejected all available trucks during the first week after his completion of the trainee program because the trucks were not clean.
At Ploof, trainee truck drivers earn a salary of $300 per week for four weeks. Trained truck drivers are paid according to the number of miles they drive, 29 cents per mile loaded and 19 cents empty. If a truck driver is detained on the road because he or she has no work order or because of mechanical problems, the truck driver is paid a flat fee of $25 after
24 hours.
The driver manager is responsible for assigning work to the truck drivers. A truck driver located at the terminal does not accrue mileage or a salary if the driver manager does not assign him or her a load to pickup or deliver. In that case, Ploof allows the truck driver to work in the warehouse or around the yard for an hourly wage.
Petitioner presented no persuasive evidence that his wages as a truck driver were lower than average at any time because the driver manager was unable to or refused to assign him a load to pickup or deliver. Additionally, Petitioner did not present any credible evidence that his wages were ever lower than
average because he was detained at a truck stop with no hauling assignment or a mechanical breakdown.
On November 20, 1995, Petitioner fell, fracturing his left ankle, while employed as an over-the-road single-seat truck driver with Ploof.
After Petitioner's injury, Ploof and its workers' compensation carrier calculated Petitioner's average weekly wage (AWW) as $395.97 per week, based on Petitioner's gross wages for thirteen weeks beginning on August 24, 1995, and ending on November 16, 1995. This figure does not include Petitioner's final gross wages as a truck driver for the period ending November 20, 1995, in the amount of $655.83. 1/
Respondent does not compute AWW. Instead, Respondent uses the AWW as computed by the employer and its carrier when determining an injured employee's average weekly earnings. In this case, Respondent based its decisions about suitable gainful employment for Petitioner using the $395.97 figure. If Respondent had included Petitioner's gross wages in the amount of
$655.83 for the period ending November 20, 1995, Petitioner's average weekly earnings would have been closer to $423.34.
Petitioner received immediate medical treatment at South Georgia Medical Center after his accident on November 20, 1995. Upon his return to Jacksonville, Florida, Dr. Harold Lynn Norman became Petitioner's treating physician. On February 5,
1996, Dr. Norman released Petitioner to return to part-time work (four hours a day) at light duty.
Petitioner subsequently returned to work for Ploof. Petitioner worked in the safety/personnel department because his work restrictions precluded him from driving a truck. His job duties included calling applicants for truck driver positions and performing background checks on applicants. This job was within Petitioner's physical restrictions. He earned $7.50 per hour, which was close to the AWW as determined by the employer/carrier.
On April 1, 1996, Dr. Norman increased Petitioner's work hours from four hours a day at light duty to eight hours a day at light duty. Petitioner continued to work for Ploof in accordance with his doctor's instructions. His job duties and salary remained the same.
Ploof eventually changed Petitioner's job after he returned to work full-time at light duty. The new job involved operating the log scan machine. Initially, Ploof increased Petitioner's salary to $8.00 per hour. Ploof ultimately raised Petitioner's salary to $8.50 per hour.
On or about May 6, 1996, Dr. Robert Yant became Petitioner's treating physician. On November 14, 1996, Dr. Yant placed Petitioner at maximum medical improvement (MMI). On that date, Dr. Yant gave Petitioner a zero percent permanent impairment rating with no permanent work restrictions.
After this release to work, Ploof offered Petitioner a job in the safety department earning $8.50 an hour. Petitioner refused this job because he thought it was not "conducive" for him to return to work at Ploof at that wage and because he was not interested in returning to work with Ploof. His refusal was not related to his work restrictions.
Petitioner's medical condition worsened after he refused the November 1996 job offer from Ploof. He eventually required additional ankle surgery by Dr. Yant. That surgery was performed on December 5, 1997.
On or about June 29, 1998, Petitioner made an appointment to attend an orientation for Respondent's re- employment services program. On July 16, 1998, he attended the orientation, which is the first stage in the re-employment services program. That same day, Respondent signed a Request for Screening (Form DWC-23). Petitioner's signature on the form indicated his belief that he was eligible for screening by Respondent for re-employment services/benefits.
The second stage in Respondent's re-employment services program is the screening phase. During this period, the Form DWC-23 is sent to the employer and/or its carrier. The employer's signature on the form indicates that there is no employment available for the injured employee with the employer of injury. The carrier's signature on the form indicates the carrier's agreement that the injured employee is entitled to
screening for re-employment services or benefits. If the employer and/or carrier do not sign the form, Respondent takes the position that suitable employment is available with the employer.
In this case, neither Ploof nor its carrier signed the Form DWC-23. Nevertheless, Respondent proceeded with the screening process to determine whether Petitioner was entitled to re-employment services or benefits.
The program at issue is a return-to-work program, not a re-training or tuition assistance program. Respondent accomplishes the return-to-work program in one of three ways. First, Respondent attempts to place an injured worker directly in a job with a new employer when the worker has transferable skills, which permit return of the worker to the workplace in suitable, gainful employment. Second, Respondent contracts with an employer that will provide an injured worker with on-the-job training for specific tasks with Respondent reimbursing a portion of the worker's wages during the training period. Third, Respondent provides an injured worker with formal education and training under the following circumstances: (a) if the worker does not have transferable skills; or (b) if the labor market does not support the worker's transferable skills; and (c) if the worker is not able to perform his or her pre-injury work.
If Respondent approves an injured worker for participation in a formal training and education program, the
insurance carrier is obligated to pay temporary total rehabilitation payments (a workers' compensation benefit) to the injured employee. This payment covers living expenses during the re-training program, for a maximum of 52 weeks.
Dr. Yant placed Petitioner at MMI for the second and final time on July 27, 1998. At that time, Dr. Yant gave Petitioner a seven percent permanent impairment rating. Petitioner's permanent work restrictions were one hour on, one hour off, and no stair or ladder climbing.
On or about September 25, 1998, Respondent sent
Dr. Yant an occupational description and job analysis report of a tractor/trailer truck driver. Respondent requested Dr. Yant to review the documents and determine whether this type of work would be appropriate for Petitioner based on his physical restrictions.
Dr. Yant completed the physician's review on October 5, 1998. Dr. Yant added additional restrictions such as no lifting greater than twenty pounds and no repeated movement. Dr. Yant felt that repeated left foot clutch and assisting in any aspect of loading or unloading a truck would cause severe disability and pain. According to Dr. Yant, Petitioner is unable to return to work as a truck driver.
By letter dated November 18, 1998, Ploof offered Petitioner another job as a driver recruiter. The duties of the job included telephone solicitation of qualified candidates from
the Ploof office or Petitioner's home, direct contact with driver candidates at truck stops within a 50-mile radius of Jacksonville, and the option of recruiting drivers outside the Jacksonville area. The driver recruiter job paid $400 a week with future raises based on performance. This salary is consistent with the salaries of other Ploof employees performing the driver recruiter job.
On December 8, 1998, Dr. Yant advised Petitioner that he should reject Ploof's offer of employment as a driver recruiter because the duties of the job required walking to and from areas of destination, climbing up and down stairs, and potential for out-of-town, overnight occasional travel. The next day, Petitioner rejected the job as driver recruiter because it was not within his job restrictions. He also believed it did not pay enough.
On December 22, 1998, Respondent's staff performed a job analysis of Ploof's November 18, 1998, offer of employment as a driver recruiter. The job analysis included a site visit, task analysis, and interview with the owner of Ploof.
By letter dated December 31, 1998, Respondent contacted Dr. Yant to determine whether the driver recruiter job was within Petitioner's work restrictions. In January 1998, Dr. Yant replied that the job was not appropriate for Petitioner because it involved ambulating on hard surfaces in parking lots.
Dr. Yant was of the opinion that Petitioner should only perform sedentary type work.
By letter dated January 28, 1999, Ploof offered Petitioner a modified driver recruiter job. Pursuant to the modifications, Petitioner would not have to travel to truck stops. Instead, he could work from the terminal office and assist with verification of applicants' employment background. The modified work position was within Petitioner's work restrictions. The modified driver recruiter job was the same type of work performed by Petitioner upon his return to work in 1996.
Ploof's January 28, 1999, letter also offered Petitioner a job working as a log auditor in the log department at the terminal office. Petitioner had the necessary job experience and skills to perform duties of a log auditor. The physical requirements of the log auditor job were within Petitioner's work restrictions.
Petitioner rejected Ploof's driver recruiter and log auditor job offers out-of-hand because he did not believe they paid enough and because he had no intention of ever working for Ploof again. Both positions pay $400 per week, which is at or close to Petitioner's AWW as determined by the employer/carrier. The jobs are currently available to Petitioner.
On or about February 5, 1999, Respondent's staff performed a transferable skills analysis (TSA). The purpose of
the TSA was to determine whether Petitioner had skills that would transfer to occupations in general, and if so, which of those occupations Petitioner could perform within his physical limitations.
The analysis revealed 19 occupations which Petitioner could perform using his transferable skills. Of the 19 occupations, the following six occupations are appropriate for Petitioner considering his physical restrictions: (a) computer operator; (b) computer peripheral equipment operator; (c) routing clerk; (d) switchbox assembler I; (e) assembler, electrical accessories I; and (f) laborer, stores (shipping and receiving). Based on wage estimates in the Jacksonville labor market, the median salaries for these six positions range between $7.90 and
$10.55 per hour.
For example, the median weekly wage for a computer operator in the Jacksonville area is $422. This figure exceeds Petitioner's AWW as determined by Ploof and its carrier and is more in line with Petitioner's average weekly earnings corrected to include his wages for the period ending November 20, 1995.
The Jacksonville labor market consistently has jobs available in the six occupations identified in the February 5, 1999, TSA. They would permit Petitioner to return to suitable gainful employment via direct placement rather than through training and education. 2/
Petitioner is capable of returning to work at suitable, gainful employment with Ploof. He also has transferable skills which would permit him to compete for other jobs providing suitable gainful employment within his physical limitations in the Jacksonville area.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this proceeding pursuant to Sections 120.569 and 120.57(1), Florida Statutes.
Petitioner has the burden of proving by a preponderance of the evidence that he requires training and education in order to return to suitable, gainful employment. Florida Department of Transportation v. J.W.C. Company, Inc., 396 So. 2d 778 (Fla. 1st DCA 1981); Balino v. Department of Health and Rehabilitative Services, 348 So. 2d 349 (Fla. 1st DCA 1977).
Section 440.491(6)(a), Florida Statutes, provides 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. The division is authorized to expend moneys from the Workers' Compensation 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.
Rule 38F-55.009, Florida Administrative Code, sets forth the screening process as follows, in pertinent part:
The screening process shall consist of:
a review of all medical and vocational documentation relevant to the compensable injury to determine whether the injured employee is able to perform the duties of the pre-injury occupation; and
a review of the documentation which supports the payment of temporary partial disability and wage loss benefits to determine the injured employee's inability to obtain suitable gainful employment because of his injury; and
an interview with the injured employee.
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(6) The Division shall not refer the injured employee for a vocational evaluation if the injured employee:
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(c) has transferable skills which would allow return to work in suitable gainful employment.
Section 440.491(1)(g), Florida Statutes, defines suitable gainful employment as follows:
(g) '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 earning at the time of injury.
In the instant case, Respondent conducted the screening process in accordance with the requirements of Section 440.491(6)(a), Florida Statutes, and Rule 38F-55.009, Florida Administrative Code. Respondent properly determined that Petitioner should not be referred for a vocational evaluation because Petitioner had transferable skills and could return to suitable gainful employment without training and education.
The term "average weekly earnings" is not defined in Chapter 440, Florida Statutes. An injured worker's AWW, for purposes of establishing workers' compensation benefits, is determined pursuant to Sections 440.02(24), 440.02(25), and 440.14, Florida Statutes.
As a general rule, Respondent uses an injured worker's AWW, as determined by the employer/carrier to establish the worker's average weekly earnings. In this case, that figure in the amount of $395.97 is in dispute, in part, because it does not include Petitioner's earnings for the week ending November 20, 1995, in the amount of $655.83.
The record here indicates that the amount of Petitioner's average weekly earnings, corrected to include his last paycheck, is closer to $423.34. 3/ Petitioner has provided
no persuasive evidence that would increase his average weekly earnings beyond this figure.
Ploof's standing offer to Petitioner for employment as a driver recruiter or log auditor will pay $400 per week with the opportunity to increase that amount over time. Both jobs will provide him immediate employment with wages close to his pre- injury average weekly earnings. Both positions are appropriate considering his age, education, transferable skills, previous occupation, and physical restrictions.
Additionally, Petitioner has transferable skills for six occupations for which positions are consistently available in the Jacksonville labor market. These jobs are reasonably attainable for Petitioner in light of his age, education, work history, previous occupation, and injury. At least one of these jobs, computer operator, would provide Petitioner with wages as nearly as possible to his pre-injury earnings. Petitioner has provided no evidence to the contrary.
That Respondent enter a final order finding that Petitioner is not entitled to additional training and education in order for him to return to suitable gainful employment.
DONE AND ENTERED this 2nd day of August, 1999, in Tallahassee, Leon County, Florida.
SUZANNE F. HOOD
Filed with the Clerk of the Division of Administrative Hearings this 2nd day of August, 1999.
1/ Petitioner is presently disputing the accurateness of the AWW calculation by the employer/carrier in a proceeding before a Judge of Compensation Claims. When it made its decision in this case, Respondent was unaware of the legal proceeding before the Judge of Compensation Claims to challenge the accurateness of the AWW. A mediation conference was scheduled in Petitioner's workers' compensation case on July 19, 1999.
2/ In May and June of 1999, Respondent identified 13 or 14 specific jobs that were available in the Jacksonville area and which would have provided Petitioner with suitable gainful employment through direct placement. These jobs have salaries ranging from $8.00 to $14.00 per hour. At $14.00 per hour, Petitioner would earn gross weekly wages in the amount of
$560.00.
3/ Petitioner's total gross income at Ploof for thirteen weeks prior to his injury, including the week ending August 31, 1995, through November 20, 1995, is $5,503.42. That figure divided by 13 is $423.34.
Katrina D. Callaway, Esquire Department of Labor and
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.
