*1 152
JOAN REEVES, Appellant, Petitioner v.
LIBERTY MUTUAL FIRE COMPANY, INSURANCE Respondent and Insurer PARCEL SERVICE, UNITED
Employer. No. 95-317. 16, November 1995.
Submitted on Briefs
February
Decided
1996.
St.Rep.
88.
152.
275 Mont.
For W. Missoula. CHIEF JUSTICE Opinion TURNAGE delivered the of the Court. Joan Reeves a appeals decision of the Workers’ Compensation denying her for request rehabilitation benefits to permit her to pursue a master’s in counseling. We affirm.
The sole issue raised is whether eligible Reeves is for a rehabilita- (1993). plan pursuant 39-71-2001, tion MCA Therefore § we do not address the important issue discussed in the concurring opinion. injured January
Joan Reeves her back in employed while (UPS). a driver for United Parcel Service After she reached maximum healing, medical she was restricted to work physical with medium demands, preventing returning job her from to her at UPS. She compensation permanent settled her workers’ claim for partial dis- ability August specifically leaving open claim for reha- 39-71-2001, pursuant bilitation benefits MCA § subsequently proposed a rehabilitation plan UPS’s in- surer, Liberty Mutual Fire Insurance Company, under which she two-year pursue program leading a to a Liberty Mutual counseling. rejected proposal. the Reeves then peti- hearing tioned the Workers’ Court for a on whether pursue she was entitled to rehabilitation benefits to her hearing May 31,1995, The Workers’ Court held a on it denied request after which for rehabilitation benefits. The proposed plan court ruled that Reeves’ was not reasonable because expectation she did not establish a reasonable that the plan would job improve position appeals. market. Reeves eligible plan pursuant Is Reeves to 39-71- (1993)? 2001, provides:
Section (1) injured eligible Rehabilitation benefits. An worker is if: rehabilitation benefits
(a) injury permanent partial disability perma- the results in 39-71-116; disability as defined in nent total (b) physician injured certifies worker is physically injury; to work at the the worker held at the time of the unable (c) completed by a plan a rehabilitation designated by the insurer certifies that worker has and and reemployment wage poten- vocational reasonable rehabilitation. The must take into consideration the tial with education, history, age, training, physical residual worker’s interests. capacities, vocational (d) a rehabilitation between worker If the for the department. is filed calls insurer under shall expenditure department funds and rehabilitation services to department authorize social use the funds. this statute in State previously interpreted applied We *3 rel. Social and Department ex Cobbs v. Montana Montana of 157], [274 Mont. P.2d 204. Services
Rehabilitation presented. here However, that case did not involve the issue Mutual that Reeves has met Liberty concedes (l)(a) (b) However, Liberty Mutual refused to above. subsections merely assigning Reeves’ instead a documenting plan, in participate Liberty her job placement to offer assistance. rehabilitation counselor plan repre- Reeves’ as a designate Mutual did wage reemployment and a senting “reasonable vocational (l)(c), rehabilitation,” to subsection above. pursuant with potential to result, department pursuant no was filed with the aAs (l)(d) above. subsection Liberty that she would Mutual admitted contends
Reeves in counselor $32,000 per year practical as a licensed earn finding submitted upon proposed is based a practice. This contention Claim- Liberty Mutual: “The licensed degree, to work as a if she her master’s receives plans, ant $32,000.00 coun- year a approximately earning counselor practical private practice.” clients in seling is without merit. A opposing contention statement of an does not to a statement
party’s plan equate of belief in the merits of The statement of Reeves’ plan was not concession that actually planned Reeves would earn the amount she to earn. that, prior The Workers’ Court heard evidence UPS, employment with Reeves earned a degree bachelor’s in family economics with a option home science and that she held a long-term goal degree counseling. working money had been at UPS to save to return to college schooling. She undergraduate continue did not utilize her degree to work in the field of social services for several reasons.
First, money she could earn more as a driver for UPS. Reeves’ time-of-injury earnings with UPS were per hour. Average $12.82 wages work/counseling for the social field with a bachelor’s degree were hour.
Second, Reeves did not wish to work with the type clientele with work, whom she would only with an undergraduate degree. In her own words:
THE COURT: family [Your] is with the options services you family Why are interested in counseling. you haven’t looked jobs family services area? THE jobs WITNESS: Because those salaries for jobs those —the basically are —I guess that is not always where want to be. I’ve family wanted to practice. be in is a There whole different clientele entry-level jobs my between with degree and the clientele that I working would be with as a counselor.
Q. you do, Joan, maybe What I like explain would for the judge you the difference in type work that would do with the you bachelor’s presently opposed hold as to the type of you expect to do degree. with master’s Okay. A. Let’s take an example maybe I was like a social worker. I don’t know that I worker, could be an actual social but something in that field.
Basically, my opinion, you dealing kids, would be fami- *4 deep trouble, trouble, you know, lies who were in financial possibly situations, just just abuse some real sad case scenarios. That has know, beenyou probably being never kids that are not taken care and that sort of properly thing. of just couples like to work with are more
My clientele who would you people coming that are to who want having problems, are that well, the—who are there because well, get can who have get to who they problem. want to solve you help people. they can’t mean are jobs these other
A lot of know, They are, you due to by circumstance. in these situations ways beyond in situations, I mean some or some sort of poverty and, secondly, things they change. don’t want control their involved in those situations. I don’t care be I can more in situations where I feel like to be involved I choose abusing are them get parents You kids and their a difference. make no control over that. Those youjust thing, that sort of care involved with. that I to be not situations are get want to family therapy, people come who marriage and So They paying you are get to well. They are real motivated well. That’s who I want and, know, they get want to well. you a service always to work with. That’s who I’ve wanted with. to work you type be the of individual Q. primary difference Would working with? are Yes.
A. earning was hearing the time ofthe that at Reeves testified Daily for the Bozeman salesperson telemarketer and ad hour as a that, earned her testified once she She further newspaper. Chronicle She self-employed as a counselor. planned to be degree, she costs start-up her with provide father had offered that her stated her own office. opening of rea- plan is that Reeves’ rehabilitation
Liberty Mutual concedes college ability graduate do work. has the inasmuch as she sonable Liberty Mutual to whom Kern, counselor Susan goal Reeves’vocational Reeves, deposition testified referred reasonable for her to a master’s obtaining ability complete the intellectual Reeves has and that attain “it’sreasonable to Court noted The Workers’ program. master’s program completing capable that she’s expect a certified counselor.” certification as the reasonableness aspects as to other However, the evidence intends to testified she less favorable. that the Boze- Kern testified Bozeman, Montana. living continue counselors. professional area is saturated man *5 Q. your As a vocational what is independent impression counselor young lady for what this should do? Well, thought
A. unrealistic think she’s somewhat about her —I therapy private view of I think, what in sector is like. if that’s truly goal personal choice, her that’s her if she wants to —and pursue very it not—I think it’s be or difficult to establish a practice in Bozeman. her Kern deposition,
In stated: very competitive market, I think Bozeman a particularly has self-employed, counseling in the area. There are 52 LPC’s [licensed professional counselors] here. That’s not counting the people in who Master’s social work clinical psychology. So very competitive. it’s It very would be hard to start a business here you unless had a completely background new or unusual that was really people. in demand to fact many
Other than the that she knows people Bozeman, in Reeves evidence of presented special experience no or education that would set her off her in competitors opening counseling from practice.
The Compensation Workers’ Court reasoned that Reeves’ own testimony expectations proved employment her regarding as a were private counselor not reasonable and The realistic. court was that, persuaded as a in not new counselor the saturated counseling Bozeman, Montana, market of would be able to attract the kind of clientele to whom limit she wishes to her work.
The court concluded Reeves would likely be most to find agency. work with a social services Kern her investiga- testified that there pay tion revealed was often no differential between persons degrees agency with bachelor’s master’s work in the Bozeman job degree, wage market. With a master’s could rise to as much hour, market, but positions entry-level as for most in that wages person were the same for a with a one as for degree. any rate, a bachelor’s At not do Reeves does wish to it agency work because involves the of clientele she wishes to type avoid. 39-71-2001, MCA encourages
While training persons injured job, on the not obligate statute does pay every may con the insurer to which be (l)(c) did, qualified ceived worker. If it subsection have no purpose. statute would be light must also viewed
Section Act to return a worker to purpose injury or disease. possible after a work-related as soon would not be furthered purpose MCA. That Section years force for two of “rehabilita- from work removing a worker position better to obtain the worker put which will tion” employment. based decision of the Workers’
The that Reeves’rehabilita expectation a reasonable an absence of upon market and on the improve position tion reha proposed in Reeves’ of the career envisioned unreasonableness employment, given as a means bilitation offact. Robert question is a limitations. Reasonableness self-imposed *6 1078, Power-Vac, 85, 89, 899 P.2d (1995), Inc. 272 Mont. v. Aero son findings of fact Compensation Court’s the Workers’ 1080. We review evidence. by substantial they supported are determine whether 258, (1993), 256, 862 P.2d 261 Mont. Food Farm v. Ricci’s Stordalen the Workers’ supports in the record evidence 394. Substantial proposed plan did that Reeves’ Court’s determination Compensation and reemployment and a goals vocational “reasonable represent rehabilitation,” under 39-71- required with wage potential Com decision of the Workers’ We affirm the 2001(l)(c), MCA Court. pensation concur. ERDMANN and GRAY
JUSTICES concurring. specially NELSON JUSTICE but believe appeal, issue raised on the resolution ofthe I concur in to the presented never issue was dispositive and the threshold that addressed or and, therefore, is not Court Compensation Worker’s by this Court. resolved Compensation the Workers’ the decision of from appeals 39-71-2001, MCA under § benefits denying her rehabilitation
Court (1993). entitled to rehabilita- that she is Reeves contends Basically, plan which of the rehabilitation because, on the basis tion benefits (to a masters obtain goal her vocational proposed, and in accordance with attainable both reasonable counseling) is education, training, etc. previous a masters Reeves’ that contends Liberty Mutual only a limited sort counseling goal virtually no chance of and has not reasonable Bozeman is clientele Court detail, into Without success. appears adopted to have of Liberty i.e., view Mutual — is neither reasonable nor attainable. suggest posture because the in which this presented case was by to the Worker’s the parties, the court did not opportunity have the to rule on the dispositive threshold and legal 39-71-2001(l)(c), here. Section problem provides that an eligible worker is for rehabilitation benefits if: plan completed by designated by the insurer certifies that the worker has reasonable vocational and a reemployment wage poten- tial with rehabilitation. The plan must take into consideration the education, age, training, history, worker’s residual physical capacities, and vocational interests.
Section defines a “rehabilitation plan” as:
an individualized plan to assist a disabled worker in acquiring aptitudes skills or to return through job to work placement, on-the- education, training, training, specialized job modification. (5) That same section at defines a provider” “rehabilitation as: a rehabilitation counselor certified the board for rehabilitation (1)] [defined certification in subsection and designated by the insurer to the department or a department of social and rehabili- tation services counselor when a worker has been certified department of social and rehabilitation services under 39-71-1003. submit the threshold problem in this case is that there never was a plan” “rehabilitation before the Workers’ Compensation Court. That conclusion followsfrom the fact that no provider” “rehabilitation designated by the insurer ever formulated a “rehabilitation plan” taking while into consideration the requirements of the applicable *7 statutes. contrary, Liberty
To the Mutual simply Kern, hired Susan a reha- and, outset, bilitation counselor at the instructed her that she towas job placement assist Reeves with but was not to prepa- assist her in plan ration of a rehabilitation which included further education. In words, Liberty Mutual, other up front, simply dictated that there would be no rehabilitation plan formulated the professional person job was, it 39-71-2001(l)(c), whose under MCA to come up § Rather, Liberty with a Mutual made the decision toas what i.e., job benefits Reeves would be entitled place- to— only ment assistance then directed the rehabilitation counselor —and carry to out that decision. general, in MCA in suggest implicit § the (l)(c), particular, obligation part in is the on of and in subsection faith, to, good designate provider” “rehabilitation the insurer provider” the “rehabilitation formulate “rehabilitation then to let statutory the criteria —the into consideration worker’s plan,” taking history, physical capacities, education, training, work residual age, 39-71-2001(l)(c), Apian MCA. devel- interests. See § and vocational “job may placement, that statute include in accordance with oped education, training, specialized job modifica- on-the-job training, any of those. See tion,” or, § combination presumably, (1993). formulate provider’s it the rehabilitation to The is that point 39-71-2001(l)(c), the insurer’s. See plan, not the what the insurer can dictate at outset simply If the and, coincidentally, what benefits will encompass or will not plan will no need the is, obviously, then there not be provided, or will trained, and certified rehabilitation experienced aof services Under those any from the worker. input much less provider, statutory scheme is frustrated the entire circumstances nothing less than a sham. “plan” is resultant the statute to purpose with the interpretation is consistent This Moreover, sug- workers. benefits provide rehabilitative exactly Liberty Mutual cannot do is what that what the insurer gest claimant the for reha- i.e., opportunity refuse the did in this case— plan a rehabilitation formulated consistent with bilitative benefits statutory with the criteria accordance provider a rehabilitation knowledge, training and professional the of the counselor’s on basis prob- the threshold the claimant. That is and work with experience, Liberty Mutual. regards lem here as clearly does not authorize Reeves, the statute part the
On as she is not a rehabili- plan her own rehabilitation up come with in that designated been the statute nor has she under tation professional (assuming that she had by the insurer capacity Moreover, the claim- simply because place). in the first qualifications rehabilitated, wants to be of how she up comes with ant it nor does agree the insurer obligate does not it. approve or the court department obligate -unworkable, given unrealistic Here, whether to establish was not she wanted type practice market and view, put position into Rather, my the court was the issue. statutory plan was that the claimant’s assume having simply
161 suggest was, fact, “rehabilitation that there plan.” no rehabilita- statutory tion before the court as the plan requirements for formu- lating minimally such a had not been even by Liberty followed Furthermore, statutory Mutual. Reeves had no authority to come up plan. with her own parties required statutory scheme,
If the were the Liberty follow obligated Mutual be designate “rehabilitation provider” as (1993), defined in MCA and then allow § the rehabili- provider independently tation the claimant and develop presentation a rehabilitation to the insurer. Section 39-71- 2001(l)(c) (d), MCA Assuming that provider certified that the worker had reason- vocational reemployment able and wage potential with rehabilitation and that the plan designed is to accomplish those, taking into consideration the 39-71-2001(l)(c), § (1993), me, MCA then it minimum, seems to that at a statutory the framework has been honored. 39-71-2001(l)(d), (1993),
Under MCA § if the worker and agree the insurer with the rehabilitation plan, then the plan is filed department with the of labor and provided benefits are in accordance If with the either the insurer or the disagree claimant with the rehabilitation plan, the insurer or claimant then has an avenue of mediation, review through the Workers’ Compensation and, ultimately, this Court. interpretation statutory
This of the framework is consistent with our recent decision in State ex rel. Cobbs Department v. Montana (1995), Social and Rehabilitation 157], [274 Services Mont. 906 P.2d 204, 208-09, wherein we noted that the rehabilitation plan under 39-71-2001, by insurer, is “developed § the claimant and and filed with the Department of Labor.” We also stated that sought rehabilitation benefits pur- “Entitlement suant to is determined worker, the insurer, ‘rehabilitation provider,’ Department of Labor and, in the event of a dispute, compensation the workers’ mediator Cobbs, and the Workers’ Court.” 274 Mont. P.2d at 208-09. case, statutory followed,
In the instant had the framework been plan might developed have been with and for claimant, that would have satisfied both the insurer and the or if not is, both, court, at least the on As it ignored review. statutes were and Reeves has been denied rehabilitation A altogether. benefits no (which opinion case is that our satisfactory consequence of this less code),seemingly approves section ofthe secondinterpretingthis only the minimally that do not even procedures used procedures of the here — statutory legislature. scheme enacted comport with foregoing special concurrence. GRAY concurs JUSTICE *9 dissenting. TRIEWEILER JUSTICE majority opinion. from the I dissent Court, majority has Compensation the Workers’ By affirming to restore on workers who wish impossible burden placed an by availing themselves of earning capacity lost of their some for in the Workers’ provided benefits Act. substan- earning capacity that her had been proved
Joan disability; earning capacity her job-related a tially reduced due to education; and by furthering her she substantially improved could be intellect, disposition program and for the training, qualified was are uncontroverted and are enroll. These facts sought in which 39-71-2001, MCA satisfy requirements sufficient to statute, of the rehabilitation simple terms applying Instead of Court, of this Court, majority two-year graduate program, a completing that before required do, going she is exactly kind of know what the claimant how she would counseling, that and market there is for kind of what position not even in a that she is obstacles professional overcome concluding different than court has done is no What the anticipate. they enter law school unless for someone to it is unreasonable be, going to how practice area of is specialized their know what first area, specialized currently engaged in are many people other competing to be for marketing strategy is their what lawyers agree applying lawyers. Most already established would be absurd. profession their own requirements these same is no less absurd. to Joan Reeves requirements these Applying following: established evidence The uncontroverted with a in home economics degree has a bachelor’s Joan Reeves recommended family option The science option. family science family counsel- degree in a master’s intending to obtain students for be- family option science for a She satisfied ing. a master’s to obtain always her intention it was cause family a counselor. become average maintained a “B” in high
Joan school and a “B+” average Everyone college. academically concedes that she is and intellec- tually successfully to enter and qualified complete a master’s which would her to program qualify practical become licensed marriage family counselor providing therapy. graduation
After her from MSU in June before entering a she first went to work to program, pay off debts that she had during college money accumulated and to save for her graduate time, entry jobs education. At the level which she would have qualified college degree paid with her from $7.00 hour. $8.00 However, by doing physical for her labor father she was able to earn later an hour. She earned an hour as her starting wage $10.00 $11.00 injury for UPS. At the time of her she was earning an hour as $12.82 car at package years driver. Evidence the trial was that after two wage on the would have increased to an hour. $18.84 4,1994, January working UPS, On while Joan sustained a back injury. injury job. As result she cannot return to her She has employment been unable to find to her related education and instead telemarketing part-time does and other work for the Bozeman Chron- average hourly wage, commissions, icle. Her including an hour. *10 explained
She her interest in degree master’s First, based on two factors. she stated that she could not otherwise qualify specific type for the that she was interested in. Second, she testified that counselors with a degree master’s earn substantially more than counselors with a bachelor’s degree. not, found,
Reeves was as the Workers’ unre- alistically selective about the kind of work she wanted to do as a Following by counselor. cross-examination the Workers’ Compensa- Judge, tion Court she tried to provide following explanation for private practice agency to preferring work: you THE COURT: I understand the kind of people that want to counsel; but, my immediately mind is are those the kind of going coming marriage who are to be to people counselors? comment that, you know, THE You made a earlier WITNESS: just going that there were to assumed be husbands wives just up. without kids and stuff. wanted to clear that I mean I assume that husbands and wives are to come in with kids drug problems acting who or are out and those sort probably things. types I realize there are other of situations. My clarification is that I think the difference those being people coming you help. they people are to for I mean are not who have I mean assigned you by people been someone else. those are actually help. want [who] words, innocent statement which
In other has been blown given Court was that proportion out of Workers’ people private rather counsel in the sector who her choice she would solving problems people assigned their than to her are interested they agency simply who are there because have to government at a court or directive. comply agency with some person The idea that this who has not even enrolled in her master’s anticipate exactly should somehow be able to who degree program will her education to the adapt her clientele will be or how she place strange begin Nevertheless, the market with. realities of concerns, respond judge’s her best to to the trial she later doing that in a case if during re-examination worst scenario she explained successfully establish a but had a master’s practice, could not than go agency earning she could to work for an more she degree, eventually degree attempt earn with a bachelor’s and still would practice. a private work into Kern, testimony of Susan the rehabilitation counselor hired
The Liberty Mutual, nothing dispel did the obvious conclusion that proposal was reasonable. Reeves’vocational earning capacity, that Reeves’ without further educa- agreed Kern hour, tion, but with master’s $7.00 $10.73 was between agency a mental health be entry wage level for would per hour. intellectually capable completing that Reeves was agreed Kern agreed employers She that with some program. the master’s earning capability with a master’s greater long-term have a agreed and she that there were degree, than with a bachelor’s degrees, bachelor’s job descriptions people differences critically, Kern, was re- degrees. Most who opposed testimony: by Liberty Mutual, following paid gave tained you Q. your question about whether you deposition I asked opinion form an as to information about Joan to enough had *11 a master’s goal getting you thought her vocational whether your opinion in that for her. What goal was a reasonable regard? reasonable for her.
A. I think it’s 39-71-2001, require impossible. MCA does Section requires qualifies that before a claimant rehabilitation simply It disability, be unable to return to the partial benefits he or she have injured, plan, claimant and have a rehabilitation job at which the All including goals.” requirements “reasonable vocational of those deny prior this case. To Reeves benefits because were satisfied in absolutely she was not certain entering graduate program even counsel, feasibility the kind of clientele she would of the about thought prefer, marketing she would or the type of successful, employ suggests preoccupation to be strategy she benefits, of the trial court denial of claimant’s rather part on the statutory of the objective application requirement. than an certainly Although concurring opinion does not have the force I am also concerned about some of the precedent, views stated agree pursuant 39-71-2001, therein. I to the of § (1993), the insurer has to dictate right no to the rehabilitation provider agree what is most suitable for a claimant. I also obligation the insurer has an to act in faith it good when selects and designates provider and when it charges the provider responsibility. with its
However, assume, does, concurring opinion as the that insurers control, and complete indirectly, will not exert total even if over the providers expense, rehabilitation which it retains at its ignores reality. statutory for,
Under the current scheme there is little opportunity and no funding consistently with which workers can retain providers. employers only rehabilitation Insurers and are the parties consistently Any who can hire them.
currently operating long this state knows that it cannot do business Therefore, only without a satisfied clientele of insurers. if the plans Court can consider are those submitted by insurer, the rehabilitation counselor hired no claimant will statutory qualify ever rehabilitation benefits framework encourages exchange partial which for reduction disability meaningless. benefits would be rendered If this Court is narrowly apply suggested as concurring opinion, might interpret it as well the statute to benefits if his eligible mean “an worker is for rehabilitation pay her insurer decides that it would like to an extra 104 weeks of benefits.” *12 insurer,
I would conclude whenever an or the rehabilitation pays for, arbitrarily unreasonably it hires and provider that injured worker, to consider rehabilitation for an that worker refuses necessarily option submitting have the his or her must own plan to the Workers’ Court for consid- statutory it meets the eration of whether of 39-71- MCA(1993). give complete Tohold otherwise would the insurer the eligibility injured and total control over workers for rehabilita- tion benefits. observation, however, I
Having made this would note that this Court and issue was not before Workers’ is not appellate even the insurer concedes in its before this Court because argue circumstances it be unreasonable to brief that under the proposed considered claimant’s reha- that the court should page At 18 of its brief the insurer states: bilitation Additionally, Liberty not claim benefits are does plan Department. because no has been filed with inappropriate It unreasonable for a carrier to defend on this basis when would be having of a rehabilitation results from the insurer lack perform employability an instructed then, reveals the claimant assessment and after assessment only job retraining, place- return to work without authorizes can ment services. rehabilitation Reeves the most reasonable proposed
Joan history, education, training, physi- considering age, possible limitations, wrong interests. It was to frustrate cal and vocational future her vocational based legitimate improve sincere and efforts the trial court. impossible demands of on the unreasonable majority opinion disagree from the For these reasons dissent concurring opinion. part with dissenting opinion. joins foregoing HUNT in the JUSTICE LEAPHART, dissenting. JUSTICE a Master’s my opinion, In dissent. Although and attainable. counseling was both reasonable Degree ofher success at counsel- prospects about the the Court had concerns sector, record indicates that Reeves would still ing private in the a govern- as a counselor with seeking employment option have the will, either Degree, a Master’s agency. mental With salary than with her sector, higher demand public Degree. Bachelor’s