| IN RE: MICHAEL PINGER | ) | DOCKET NO. 97 2210 |
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| CLAIM NO. T-705407 | ) | DECISION AND ORDER |
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- APPEARANCES
- Claimant, Michael Pinger, by
- Riecan & Hall, Inc., P.S., per
- George M. Riecan
- Self-Insured Employer, Weyerhaeuser Company, by
- Kathryn D. Fewell, Senior Corporate Counsel
The self-insured employer, Weyerhaeuser Company, filed an appeal with the Board of Industrial Insurance Appeals on March 21, 1997, from an order of the Department of Labor and Industries dated March 6, 1997. The order stated that on January 23, 1997, the Director determined that the claimant was eligible for vocational services, and that time loss compensation was payable. REVERSED AND REMANDED.
DECISION
Pursuant to RCW 51.52.104 and RCW 51.52.106, this matter is before the Board for review and decision on a timely Petition for Review filed by the self-insured employer to a Proposed Decision and Order issued on April 14, 1998, in which the order of the Department dated March 6, 1997, was affirmed.
The Board has reviewed the evidentiary rulings in the record of proceedings and finds that no prejudicial error was committed and the rulings are affirmed.
The March 6, 1997 order under appeal states, in its entirety,
The Director indicated on 1/23/97 that Mr. Pinger was eligible for vocational services. Time loss is therefore payable. [2]
Two issues are presented. First, are temporary total disability benefits payable to the claimant under RCW 51.32.095 where, in the exercise of the supervisor's sole discretion, vocational rehabilitation has been determined to be necessary and likely to enable the injured worker to become employable at gainful employment? Second, by what standard is the supervisor's decision to pay temporary total disability benefits reviewed?
Michael Pinger, a 35-year-old heavy equipment mechanic, hurt his neck on May 10, 1993, while in the course of his employment with Weyerhaeuser Company. Mr. Pinger's industrial insurance claim was allowed and benefits provided. On March 20, 1995, approximately two years after the injury, Mr. Pinger's condition was determined to be medically fixed and stable. His claim was closed with an award for permanent partial disability equal to Category 2 of permanent cervical spine impairments.
Seven months after closure, Mr. Pinger filed an application to reopen his claim, stating that his condition had worsened. His aggravation application was favorably received and the claim reopened. On March 6, 1997, the Department issued the order under appeal here, indicating that Mr. Pinger was found eligible for vocational services and that time loss is payable. As an aside, we note that the order failed to provide an effective date or dates for the payment of benefits.
We begin our analysis with consideration of the second issue raised by this appeal. Namely, by what standard is the supervisor's decision to be reviewed in a case in which the supervisor, through the exercise of his or her discretion under RCW 51.32.095(3), has ordered time loss to be payable? We conclude that the correct standard is not a preponderance of the evidence standard. Proof of a worker's employability by a preponderance of the evidence is not sufficient to overcome the supervisor's exercise of discretion under RCW 51.32.095(3). [3]
Appreciation of the above requires an understanding of four elements relating to the payment of time loss compensation. First, statutory authorization for the payment of time loss compensation (temporary total disability) is found in both RCW 51.32.090, which in general relates to medical disability, and in RCW 51.32.095(3), which relates to vocational rehabilitation. Second, time loss compensation paid under RCW 51.32.095(3) is a vocational cost equivalent in character to books, tuition, fees and other necessary expenses. Third, the payment and/or denial of time loss benefits may be reviewed under RCW 51.32.090 or RCW 51.32.095(3), depending on the circumstances. Fourth, different standards of review will be applied depending on which section of the Act is being considered.
Addressing the first and second of the above elements, RCW 51.32.095(3) provides statutory authorization for the payment of time loss compensation as part of an injured worker's vocational rehabilitation and treats time loss benefits as a cost of vocational rehabilitation. The section states:
Costs for vocational rehabilitation benefits allowed by the supervisor or supervisor's designee under subsection (1) of this section may include the cost of books, tuition, fees, supplies, equipment, transportation, child or dependent care, and other necessary expenses for any such worker in an amount not to exceed three thousand dollars in any fifty-two week period except as authorized by RCW 51.60.060, and the cost of continuing the temporary total disability compensation under RCW 51.32.090 while the worker is actively and successfully undergoing a formal program of vocational rehabilitation.
(Emphasis added.) The rationale for this section is apparent upon consideration of the practical needs of the worker. The Legislature recognized that an injured worker who engages in vocational rehabilitation must have a means of support, understanding that certain workers will, as a causal result of an industrial injury, experience disability that precludes their return to any work that they would otherwise qualify for by reason of age, education, training and work experience. These workers will require vocational rehabilitation services to return to gainful employment. The [4] Legislature included time loss compensation as a cost of vocational rehabilitation, drafting the section in the conjunctive, but specifically excluding time loss benefits from the $3,000 limitation otherwise imposed on books, fees, supplies and so on.
The Director's statutory authorization for the payment of time loss compensation is found in RCW 51.32.095(1), which reads, in part:
Where, after evaluation and recommendation . . . and in the sole opinion of the supervisor . . . vocational rehabilitation is both necessary and likely to enable the injured worker to become employable at gainful employment, the supervisor . . . may, in his or her sole discretion, pay . . . or . . . direct the self-insurer to pay the cost as provided in subsection (3) of this section.
The plain meaning of this section compels the conclusion that the Legislature gave the supervisor discretionary authority to order the payment of time loss compensation under RCW 51.32.095 regardless of whether medical certification of time loss compensation was otherwise available. The obvious implication is that time loss may be payable under RCW 51.32.090, the medical portion of the statute, as well as under RCW 51.32.095, the vocational portion. By this statement, we do not mean to suggest that the Director has discretionary authority to order the payment of time loss compensation under RCW 51.32.090. To the contrary, time loss compensation paid under RCW 51.32.090 requires, among other things, medical certification of temporary total disability.
It follows that the payment or denial of time loss compensation benefits may be reviewed under RCW 51.32.090 or RCW 51.32.095, depending on the circumstance. Outside of the context of vocational rehabilitation, an issue involving time loss would fall within the purview of RCW 51.32.090. Issues involving time loss compensation within the context of vocational rehabilitation could be reviewed under either RCW 51.32.090 or RCW 51.32.095 with the distinction being the circumstances of the case and the standard of review to be used. This leads us directly to the last of the above four elements. [5]
In reviewing questions of time loss, different standards of review will be used depending on which section of the Act is being considered. RCW 51.32.090, which is the section requiring medical certification of temporary total disability, is reviewed on a preponderance of the credible evidence standard. RCW 51.32.095, which involves an exercise of discretion by the supervisor of industrial insurance, is reviewed under an abuse of discretion standard.
In In re Mary Spencer, BIIA Dec., 90 0264 (1991), the Board discussed the standard by which a determination concerning vocational services is reviewed:
The initial determination, as to whether vocational rehabilitation services are necessary and likely to make the worker employable, is committed to the discretion of the supervisor or the supervisor's designee. RCW 51.32.095. Furthermore, any dispute from that decision must be filed with the Director. RCW 51.32.095(6); WAC 296-18A-470. Again, the Director's decision as to whether or not the claimant is entitled to vocational services is clearly vested in the Director's sole discretion. In re Todd Eicher, BIIA Dec., 88 4477 (1990).
Our review is limited to determining whether the exercise of discretionary authority constituted an abuse of discretion. In re Gary Manley, BIIA Dec., 66,115 (1986); In re Armando Flores, BIIA Dec., 87 3913 (1989).
Under RCW 51.32.095, there is no qualitative distinction between the supervisor's discretionary decision to provide vocational services and the supervisor's discretionary decision to order the payment of temporary total disability benefits. In each case the decision is left to the sole discretion of the supervisor, and in each case the Board's review is limited to determining whether the exercise of discretionary authority constituted an abuse of discretion. In the present appeal, the burden is on the employer as the appealing party to prove that the Director's exercise of discretion was arbitrary or capricious based on the information that was before the Director at the time the decision was made. The burden is on the employer to show that the evidence then before the Director was logically unconnected to determining the need for temporary total disability benefits, or that none of the information before the Director at the time of his decision could support his [6] decision. As we view the record, the self-insurer has failed to establish that the Director's exercise of authority constituted an abuse of discretion.
Turning back to the order under appeal, we again note that the Department did not include the effective date or a specific period for which the self-insured employer was to pay time loss compensation. We interpret this to be recognition by the Department that, in the context of vocational rehabilitation, temporary total disability benefits that are paid under RCW 51.32.095(3) are limited to the period in which "the worker is actively and successfully undergoing a formal program of vocational rehabilitation." WAC 296-18A-420 defines "formal program" for vocational rehabilitation purposes as "an approved rehabilitation plan . . . that provides services necessary and likely to enable the injured worker to be employable at gainful employment."
The March 6, 1997 order merely recites that "time loss is therefore payable" and is not determinative as to payment of time loss compensation benefits for any particular time. To the extent that it purports to order payment of time loss compensation benefits pursuant to RCW 51.32.095(3), for any period prior to the time that Mr. Pinger is "actively and successfully undergoing a formal program of vocational rehabilitation," it is incorrect.
FINDINGS OF FACT
1. On May 20, 1993, the Department of Labor and Industries received an application for benefits alleging that the claimant, Michael Pinger, had sustained an industrial injury to his back and neck on May 10, 1993, while in the course of his employment with Weyerhaeuser Company & Subsidiaries (Weyerhaeuser). The claim was allowed and benefits were provided. On March 20, 1995, the Department issued an order that closed the claim.
On October 31, 1995, the claimant filed an application to reopen for aggravation of the condition caused by the industrial injury. On January 16, 1996, the Department issued an order that reopened the claim effective September 2, 1995, for authorized treatment and action as indicated. [7]
On November 15, 1996, the Department issued a letter that stated that the employer had determined that the claimant is employable; that the Department disagrees with the employer's finding; and that the claimant is eligible to receive vocational rehabilitation services to prepare him for gainful employment. The employer received this letter on November 18, 1996. On December 6, 1996, the employer filed a protest and request for reconsideration of the Department letter dated November 15, 1996.
On January 18, 1997, the Department issued a letter stating that the Director had reviewed the facts of the case and had decided that vocational services were necessary to assist the claimant in returning to work. On March 6, 1997, the Department issued an order stating that the Director had indicated that the claimant was eligible for vocational services, and that time loss compensation was payable.
On March 21, 1997, the employer filed a Notice of Appeal with the Board of Industrial Insurance Appeals. On April 18, 1997, the Board issued an order extending the time to act on the appeal. On April 30, 1997, the Board issued an order granting the appeal, assigning it Docket No. 97 2210, and directing that proceedings be held on the issues raised therein.
2. On May 10, 1993, the claimant suffered an industrial injury to his neck while in the course of employment with Weyerhaeuser.
3. In a letter dated January 18, 1997, the Director of the Department of Labor and Industries determined that the claimant requires vocational services to assist him in returning to work. On March 6, 1997, the Department issued an order stating that the Director had indicated that the claimant was eligible for vocational services, and that time loss compensation was payable. The employer did not offer into evidence the factual information that was considered by the Director in determining that time loss compensation was payable.
CONCLUSIONS OF LAW
- The Board of Industrial Insurance Appeals has jurisdiction over the parties and the subject matter to this appeal.
- The evidentiary record herein does not show that the Director of the Department of Labor and Industries abused his discretion when he determined that time loss compensation was payable.
- The discretionary payment of temporary total disability benefits is a decision that is in accordance with RCW 51.32.095(3). [8]
- The order of the Department of Labor and Industries dated March 6, 1997, that stated that the Director had indicated that the claimant was eligible for vocational services, and that time loss is payable, is incorrect and is reversed. This matter is remanded to the Department with instructions to issue an order indicating that the claimant is entitled to vocational services, and to issue a further order regarding payment of time loss compensation benefits once Mr. Pinger is actively and successfully undergoing a formal program of vocational rehabilitation pursuant to RCW 51.32.095(3).
It is so ORDERED.
Dated this 12th day of November, 1998.
BOARD OF INDUSTRIAL INSURANCE APPEALS
/s/
THOMAS E. EGAN Chairperson
/s/
JUDITH E. SCHURKE Member