STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ROADHOUSE GRILL and AIG CLAIMS ) SERVICES, INC., )

)

Petitioners, )

)

vs. ) Case No. 99-4782

) DEPARTMENT OF LABOR AND EMPLOYMENT ) SECURITY, DIVISION OF WORKERS' ) COMPENSATION, )

)

Respondent, )

)

and )

)

BRIAN CATTANEO, )

)

Intervenor. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly-designated Administrative Law Judge, Daniel M. Kilbride, conducted a formal hearing in the above-styled case on April 26, 2000, in Orlando, Florida.

APPEARANCES

For Petitioner: Wayne Johnson, Esquire

DeCiccio, Johnson, Herzfeld and Rubin 652 West Morse Boulevard

Winter Park, Florida 32789

For Respondent: Elana J. Jones, Esquire

Department of Labor and Employment Security

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

For Intervenor: Irvin A. Meyers, Esquire

Meyers, Mooney, Stanley and Hollingsworth

17 South Lake Avenue Orlando, Florida 32801-2797

STATEMENT OF THE ISSUE

Whether Brian Cattaneo can return to suitable gainful employment without further training and education.

PRELIMINARY STATEMENT

By letter dated August 17, 1999, Respondent awarded Intervenor a training/education program under Section 440.491, Florida Statutes. Petitioners contested the award of the program and timely requested an administrative hearing. Respondent referred this matter to the Division of Administrative Hearings on November 16, 1999. Subsequently, Brian Cattaneo's Motion to Intervene was granted on December 6, 1999. Following the granting of a motion to continue filed by Intervenor, a formal hearing was scheduled for April 26, 2000. Each party timely filed Proposed Recommended Orders. Each of the parties' proposals has been given careful consideration in the preparation of this Recommended Order.

At hearing, Petitioners, Roadhouse Grill and AIG Claims Services, Inc., called three witnesses and offered one exhibit. Respondent, Department of Labor and Employment Security, Division of Workers' Compensation, called four witnesses including Intervenor; Sandra Ondrus, Respondent's District Supervisor; Mary Denson; Vocational Rehabilitation Consultant; and Esther

Levensohn, certified vocational evaluator. Respondent offered three exhibits which were received in 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 June 5, 2000.

FINDINGS OF FACT

1. Brian Cattaneo, a 39-year-old male, was employed by Petitioner, Roadhouse Grill, from March 1995 in various management positions in Jacksonville and Orlando, Florida.

2. He sustained a worker's compensation injury on or about March 25, 1998, while working as a kitchen manager for Petitioner.

3. Cattaneo sustained a low back injury resulting from the consistent lifting and carrying of objects.

4. His duties as a kitchen manager included loading ice baths into sinks located 12 inches from the floor, loading 50 pound bags of flour, and carrying and organizing cases of frozen foods and canned goods.

5. Cattaneo was diagnosed with a herniated disk and placed on light duty. He was given restrictions on lifting, twisting, and bending.

6. Upon returning to work the employer returned Cattaneo to the same duties he had when he was injured. The work he did fell outside of his restrictions as he was required to bend, twist,

   and lift, and he was provided with no accommodations for his restrictions.

7. During this period, Intervenor was re-injured and was later diagnosed with a ruptured disk.

8. Intervenor underwent a diskectomy. After time off for surgery, Intervenor returned to work with a six-hour working restriction and restrictions for bending, lifting, twisting, and climbing.

9. After working for a while, Cattaneo was experiencing too much pain and was placed on off-duty status.

10. After reaching maximum medical improvement, Cattaneo was given restrictions of no walking, sitting, or standing for more than two hours at a time, and no consistent bending, sitting, twisting, or climbing.

11. Cattaneo was unable to reach his pre-injury earnings due to his inability to fully perform the duties of a manager. He was told by Petitioner that his restrictions would have to be lifted in order to return to full management wages.

12. During his employment with Petitioner, and while on off-duty status, Cattaneo temporarily worked at Financial Mortgage Planning from October 1998 to February 1999.

13. Section 440.491, Florida Statutes, creates the re- employment services program and authorizes all recommended programs and expenditures to injured employees.

14. The ultimate goal of that statute in regard to an injured worker is to return the worker to suitable gainful employment.

15. Suitable gainful employment is meant to get an employee as close as possible to the wages he or she was earning at the time of injury and with the permanent physical restrictions resulting from the industrial accident. This includes any benefits, such as medical benefits and commissions, the employee was earning at the time of injury.

16. 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.

17. The Division of Workers' Compensation (Division) goes through a process to determine whether an individual merits re- employment services. The process begins with orientation, in which 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.

18. Shortly after orientation the Division requests medical records from the carrier to determine the employer's restrictions.

19. 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.

20. The Division also does a transferable skills analysis where the claimant's educational background, hobbies, and interest are evaluated to determine the best way to return the injured employee to work.

21. 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.

22. 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.

23. 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.

24. A transferable skills analysis determined what jobs Cattaneo would be able to perform with his current medical restrictions, educational history, and previous work history.

25. Short of retraining, there were no jobs within Cattaneo's restrictions which would return him to his pre-injury wages of $959.00 per week.

26. As a result of Intervenor's high pre-injury earnings and restrictions, it was recommended that Intervenor pursue a career in human resources through the bachelor in human resource management program at the University of Central Florida.

27. Since Cattaneo had already completed his core requirements through his previous education, it would only take him two years to complete the degree. Cattaneo's background in personnel and dealing with people, coupled with the fact that he had already completed his core classes from his previous education indicated that the bachelor of human resource management degree would be an appropriate choice for Cattaneo.

28. A labor market survey for positions utilizing a bachelor's degree in human resources indicated that five or more current positions which utilized the bachelor's degree in human resources management were available within the last six months.

29. Due to a change in the statute in 1996, one of the options for retraining is to place an employee in a baccalaureate program.

30. Cattaneo was approved for retraining in the bachelor's degree program in human resources at the University of Central Florida.

31. The Division argues that Cattaneo fell within the ambit of Section 228.041(22)(a)3., Florida Statutes, due to the degree program's use of current skills in the hospitality industry, abilities, and interests, along with returning him to his pre- injury earnings.

32. The reliance of Section 228.041(22)(a)3., Florida Statutes (Supp. 1996), by Respondent does not contradict its prior admission to Petitioner dated March 31, 2000.

33. Respondent answered the following request for admission:

    Admit that the University of Central Florida Human Resources Management Program is not a career education program as defined under Section 228.041(a), Florida Statutes (1999).

    
    

    The response: "There's no definition of career education program in Section 228.041(a). However, we admit that the University of Central Florida Human Resources Program is not a career education program as defined under Section 228.041(22)(a)."

    
    

    Petitioner Roadhouse Grill fails to note that Respondent did not admit that the University of Central Florida human resource management program is not a career education program under

    Section 228.041(22)(a)3., Florida Statutes (1996 Supp.), which was one of the retraining options listed in Chapter 38F-55 of the 1996 Florida Administrative Code and which was in effect at the time of Cattaneo's approval for retraining in the program. The rule and statute section clearly controlled at the time of Cattaneo's approval and the Division was well within its authority to designate such bachelor degree programs for potential retraining of employees.

34. Based on Intervenor'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 Cattaneo to suitable gainful employment is through retraining.

35. Petitioner never informed the Division indicating whether it had suitable employment within Intervenor's restrictions.

36. Returning Cattaneo to work with Roadhouse Grill is not a viable option.

37. Intervenor's employment with Roadhouse Grill would not return him to suitable gainful employment given that he was earning less than half of his pre-injury average weekly earnings of $959.85.

38. Cattaneo was limited to a salary of $400 per week by Roadhouse Grill due to the restrictions limiting his ability to

    return to full management status and the resulting full management salary.

39. Cattaneo's restrictions prevent him from returning to the occupation of a restaurant manager.

40. Managers in the hospitality industry are more active and hands-on. While categorized as a light-duty position in the Director of Occupational Titles, the manager position encompasses duties beyond a light-duty demand.

41. Given his restrictions of never bending, twisting, and lifting over twenty pounds, Cattaneo could not return to suitable gainful employment in a manager's position.

42. Several factors led to the determination to place Cattaneo in the human resource management program at the University of Central Florida. Intervenor's interest in the area, his experience in the hospitality industry, his experience as a manager and supervising others, and dealing with personnel made placing Cattaneo in the program a reasonable alternative.

43. Further, testing done by Esther Levensohn, as well as the demand for experienced individuals in the hospitality and tourism industry, indicated that the program was a viable alternative for Cattaneo.

44. Petitioner Roadhouse Grill claims that Cattaneo had a job available to him with Petitioner because he was working with Petitioner after his work-related accident. The mere fact that Cattaneo had a job with Roadhouse Grill or any other employer is

    not enough. It must be established that the job was at or near Intervenor's pre-injury average weekly earnings and within his restrictions.

45. Cattaneo did have the capability to obtain a job at any point. However, the Division's goal, as mandated by statute, is to assist Intervenor in obtaining employment at or near his pre- injury average weekly earnings of $959.00.

46. Petitioner's assertion that Levensohn's recommendation to place Cattaneo in the human resource management program was based purely on subjective considerations is without merit. Levensohn performed various tests to determine Intervenor's aptitudes and transferable skills. Levensohn also went on to state that while interest is considered, the primary bases for placing an employee are transferable skills and results of vocational testing. She further testified that in her opinion as a vocational evaluator, interest in one's work is important to the individual in order to be a good employee.

47. Trey Webb, Regional Director for Roadhouse Grill, failed to show that Roadhouse Grill made a serious effort to accommodate Cattaneo's restrictions. While Webb testified that an assistant manager or general manager position did not require heavy lifting, documentation from Roadhouse Grill's personnel file describes the duties of an assistant manager, which mandate that he "must be able to exert well paced mobility for periods of up to four hours in length and have the ability to lift 10 pounds

    frequently and up to 50 pounds occasionally. Must have the stamina to work at a minimum of 50 to 60 hours a week."

48. Webb himself acknowledged that managers, in the course of their duties would bend, twist, stoop, squat--all of which are outside Cattaneo's restrictions. In addition, the light-duty position eventually created for Cattaneo did not allow him to earn his pre-injury wages. Cattaneo testified that he was told he could not earn his pre-injury wages unless his restrictions were lifted, enabling him to perform full managerial duties. Finally, the lack of accommodation of Cattaneo's restrictions is illustrated by the fact that he was re-injured after he was initially placed on light-duty while employed with Roadhouse Grill.

49. Dan Dittleberger's testimony also failed to establish that Petitioner Roadhouse Grill accommodated Cattaneo's restrictions. He acknowledged that as a general manager, he himself did heavy lifting and was injured. While lifting a 50- pound bag of potatoes, the same weight requirements given in the assistant manager job description, Dittleberger's condition and restrictions were identical to those of Cattaneo, especially given the fact that Dittleberger did not undergo surgery while Cattaneo had surgery to his back.

50. Petitioner also presented testimony from Lynn Esko, who was accepted as an expert in the field of vocational evaluation. Esko testified that she never interviewed or even met Cattaneo.

    She also testified that she did not perform any test on Cattaneo or produce a report of any of her findings concerning Cattaneo, but merely conducted a file review of Cattaneo's case based on material submitted to her from Petitioner's counsel. Esko's testimony failed to establish that Cattaneo could return to suitable gainful employment without retraining.

51. Finally, Petitioner failed to show that retraining Cattaneo through the bachelor's degree program in human resource management will not return him to suitable gainful employment.

    CONCLUSIONS OF LAW

    
    

52. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding. Section 120.57(1), Florida Statutes.

1. The burden of proof is on Petitioner. Petitioner must show by a preponderance of the evidence that Cattaneo can return to suitable gainful employment without formal training and education. Young vs. 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, and I find their conclusions persuasive. See Marcella M. Mika vs. Department of Labor and Employment Security, Division of Workers' Compensation, DOAH Case No. 96-2573; Katherine Cronk vs. Department of Labor and Employment Security, Division of Workers' Compensation, DOAH Case No. 98-4973; Michael J. Digeronimo vs.

   Department of Labor and Employment Security and Home Depot, DOAH Case No. 96-1382; James Coady vs. Department of Labor and Employment Security, Division of Workers' Compensation, DOAH Case No. 99-1510; James Wiese, Jr. vs. Department of Labor and Employment Security, Division of Workers' Compensation, DOAH Case No. 97-4746; and Francis A. Bustard, IV vs. Department of Labor and Employment Security, Division of Workers' Compensation, DOAH Case No. 98-4105.

2. While it is true that in the above-referenced cases, Petitioner happened to be a claimant who was disputing the denial of Division-sponsored services, 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.

3. Section 440.015, Florida Statutes, under the heading of Legislative Intent states:

   It is the intent of the Legislature that the Workers' Compensation Law be interpreted so as to assure the quick and efficient delivery of disability and medical benefits to an injured worker and to facilitate the worker's return to gainful reemployment at a reasonable cost to the employer. It is the specific intent of the Legislature that workers' compensation cases shall be decided on their merits. The workers' compensation

   system in Florida is based on a mutual renunciation of common-law rights and defenses by employers and employees alike. In addition, it is the intent of the Legislature that the facts in a workers' compensation case are not to be interpreted liberally in favor of either the rights of the injured worker or the rights of the employer. Additionally, the Legislature hereby declares that disputes concerning the facts in workers' compensation cases are not to be given a broad liberal construction in favor of the employee on the one hand or of the employer on the other hand, and the laws

   pertaining to workers' compensation are to be

   construed in accordance with the basic principles of statutory construction and not liberally in favor of either employee or employer. It is the intent of the Legislature to ensure the prompt delivery of benefits to the injured worker. Therefore, an efficient and self-executing system must be created which is not an economic or administrative burden. The Division of Workers' Compensation shall administer the Workers' Compensation Law in a manner which facilitates the self-execution of the system and the process of ensuring a prompt and cost-effective delivery of payments.

4. 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.

5. 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.

6. 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.

7. 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 compelling evidence that the best way to do so in this case is through formal training and education. In contrast, Petitioner Roadhouse Grill has failed to produce evidence to show that the injured employee, Cattaneo, can return to suitable gainful employment without formal training and education.

8. Section 228.041(22)(a)3., Florida Statutes (Supp. 1996), authorizes the Division to approve an employee for a baccalaureate degree under a career education program. This section states in pertinent part:

   "Career education" is defined as meaning that instruction not necessarily leading to a baccalaureate degree, either graded or ungraded, listed below:

   
   

   * * *

   
   

   Supplemental programs designed to enable persons who are or have been employed in an occupation to upgrade their competencies in order to reenter or maintain employment or advance within their current occupation.

9. The term "education program" is defined by rule. Rule 38F-55.001(5), Florida Administrative Code, reads in pertinent part to include:

   1. formal course of study or a certificate program in a training and education facility, agency or institution operating under Chapter 246, Florida Statutes, and subject to the rules of the State Board of Independent Post- Secondary Vocational, Technical, Trade and Business Schools, as provided by Section 246.201, Florida Statutes; or any community college established under part III of chapter 240, Florida Statutes; or a career education program as defined by section 228.041(22)(a)3., Florida Statutes; . . . .

10. Rule 38F-55.001(3), Florida Administrative Code, was amended on February 9, 2000, to include the award of

    [B]accalaureate or Graduate level studies may be approved only if the program capitalizes on prior education and/or aptitudes, and

    
    

    1. The program under consideration firmly establishes marketability toward suitable gainful employment for that injured employee.

    
    

11. This amendment is a codification of earlier law and the Division has finally established that the program recommended for Intervenor capitalizes on his prior education and aptitudes and market ability toward suitable gainful employment has been demonstrated.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby

RECOMMENDED that a final order be entered denying the relief requested by Petitioner.

DONE AND ENTERED this 31st day of July, 2000, in Tallahassee, Leon County, Florida.

DANIEL M. KILBRIDE

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 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 31st day of July, 2000.

COPIES FURNISHED:

Wayne Johnson, Esquire DeCiccio, Johnson, Herzfeld

and Rubin

652 West Morse Boulevard Winter Park, Florida 32789

Elana J. Jones, Esquire Department of Labor and Employment Security

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

Irvin A. Meyers, Esquire Meyers, Mooney, Stanley

and Hollingsworth

17 South Lake Avenue Orlando, Florida 32801-2797

Mary B. Hooks, Secretary Department of Labor and

Employment Security

2012 Capital Circle, Southeast Hartman Building, Suite 303 Tallahassee, Florida 32399-2152

Sherri Wilkes-Cape, General Counsel Department of Labor and

Employment Security

2012 Capital Circle, Southeast Hartman Building, Suite 307 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 should be filed with the agency that will issue the final order in this case.

Docket for Case No: 99-004782

Orders for Case No: 99-004782