| IN RE: LOUELLA C. ALCORN | ) | DOCKET NO. 89 2619 |
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| CLAIM NO. K-499948 | ) | DECISION AND ORDER |
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- APPEARANCES
- Claimant, Louella C. Alcorn, by
- Aaby, Putnam, Albo and Causey, per
- Joseph A. Albo
- Employer, Monroe Convalescent Center, by
- None
- Department of Labor and Industries, by
- The Attorney General, per
- Whitney Petersen, paralegal, and Larry A. Jones, Assistant
This is an appeal filed by the claimant, Louella C. Alcorn, on July 24, 1989 from an order of the Department of Labor and Industries dated July 11, 1989, which suspended the right to further compensation effective June 1, 1989, for failure to cooperate in vocational rehabilitation. 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 claimant, Louella C. Alcorn, to a Proposed Decision and Order issued on July 13, 1990, in which the order of the Department dated July 11, 1989 was sustained.
The Board has reviewed the evidentiary rulings in the appeal record and finds that no prejudicial error was committed and said rulings are hereby affirmed.
The issue raised in this appeal is whether the Department correctly suspended Ms. Alcorn's benefits for failure to cooperate with a [2] vocational plan. The Department suspended Ms. Alcorn's benefits when she failed to move back to Monroe, Washington after moving to Forks, Washington. Ms. Alcorn contends the Department has no right to force an injured worker to relocate and any directive to do so violates the constitutional right of travel. See Macias v. Dep't of Labor and Indus., 100 Wn.2d 263, 668 P.2d 1278 (1983). The Department asserts it is permitted to suspend benefits under RCW 51.32.110 when faced with a claimant who relocated several times without notifying the Department, and who, without prior notification or justification, moved during a vocational training program to an area of the State where she would be unable to complete the training process.
We conclude that the circumstances of Ms. Alcorn's relocation during the vocational program did not represent a "failure to cooperate" within the meaning of RCW 51.32.110. While it may be possible for a claimant's move to another area of the State to interfere with claim administration, the facts presented in this instance did not warrant suspension of benefits.
Louella Alcorn sustained an industrial injury on January 21, 1987, while working for the Monroe Convalescent Center. She broke her right wrist when an agitated patient struck her as she tried to transfer the patient into bed. Thereafter Ms. Alcorn obtained medical treatment, including surgery, and received time-loss compensation benefits. At the time of her injury, she lived in Monroe, Washington. Ms. Alcorn moved several times -- three moves in the Monroe area and two in Snohomish -- in the two-year period after her industrial injury. She and her family [3] moved in with her husband's grandparents in Sultan, Washington in February 1989. In March 1989, Ms. Alcorn met with vocational counselors. She moved to Forks, Washington at the end of that month when low-income housing became available.
Ms. Alcorn testified she would have been willing to participate in vocational services if she had been contacted by a vocational counselor in the Forks area. She acknowledged she had trouble keeping appointments with her vocational counselor but claimed it was due to a lack of transportation. She recalled advising the Department about each of her several moves by telephone.
Linda Luedtke, the Department claims manager, reviewed Ms. Alcorn's claim file and described two occasions where it was necessary for her to contact the employer to obtain Ms. Alcorn's new address. She believed Ms. Alcorn failed to keep certain appointments and arrived late at least once. Ms. Luedtke arranged to have vocational services provided to Ms. Alcorn between December 1988 and June 1989. She recalled the vocational consultant's planning to have Ms. Alcorn obtain work as a pharmacy assistant and believed the job market investigated was in the Monroe area.
Ms. Luedtke learned of Ms. Alcorn's move to Forks on April 26, 1989. At that time, Ms. Alcorn advised her she moved to Forks because it was less expensive to live there. Ms. Luedtke wrote to Ms. Alcorn on May 1, 1989, advised her to return to the Monroe area, and to resume the vocational plan. When she received no response, she recommended that Ms. Alcorn's benefits be suspended. Ms. Luedtke did not check into the [4] availability of vocational services in Forks, but believed the nearest services were in Port Angeles. She believed Ms. Alcorn's moving out of the job market area without telling anyone constituted noncooperation.
While there is no question Ms. Alcorn moved several times during the pendency of her claim, the record is silent regarding the specifics of the vocational program which was being developed for her. Ms. Luedtke referred to the vocational counselor's closing report and its recommendation that vocational services be transferred to the Forks geographic area. The closing report also suggested development of a behavioral contract to assure Ms. Alcorn would cooperate with those services. The Department apparently did not check into the feasibility of a vocational plan to place Ms. Alcorn as a pharmacy assistant in the Forks or Port Angeles area. Nothing in the record before us reveals the impracticality of conducting the plan out of the Port Angeles or Forks area, nor the effect a transfer of vocational services would have on the plan's development through March 1989. Absent that information, we find no evidence Ms. Alcorn failed to cooperate with her vocational plan.
RCW 51.32.110 provides for suspension of benefits if a worker refuses or obstructs "evaluation or examination for the purpose of vocational rehabilitation" or if the worker "does not cooperate in reasonable efforts at such rehabilitation". RCW 51.32.110. The question before us is whether Ms. Alcorn's behavior constituted a "failure to cooperate" within the context of RCW 51.32.110.
Because the word "cooperate" is not defined in RCW 51.32.110, we must give it its "usual and ordinary meaning." State v. Von Thiele, 47 [5] Wn.App. 558, 563, 736 P.2d 297 (1987). To cooperate is "to act or work with another or others to a common end," while cooperation is a "joint operation" or "common effort or labor". Webster's Third New International Dictionary 501 (1986).
The State Supreme Court addressed noncooperation in submitting to medical treatment in Kolano v. Dep't of Labor & Indus., 172 Wash. 27, 19 P.2d 113 (1933). Kolano involved a statutorily authorized contract between an employer and an Aberdeen hospital for provision of services to injured workers. The worker relocated to Tacoma after his benefits were suspended due to his refusal to submit to medical treatment at the designated hospital. The court considered whether the claimant was entitled to medical services of the doctor of his own choice in the geographic area he moved to after leaving the hospital. The court determined the worker was not justified in leaving the hospital which was prepared to render necessary treatment. Accordingly, it found the suspension of benefits appropriate.
We find the circumstances of this case to be distinct from Kolano. An injured worker leaving the geographic area of a vocational plan in the preliminary stages is not the same as a worker leaving a hospital which was ready to provide necessary treatment. Further, there is no evidence that Ms. Alcorn was ready to be placed in a training position and that such a position in the Monroe area had been or was about to be arranged.
The Board has considered the question of noncooperation in the context of a claimant's refusal to participate in a psychiatric examination without her attorney being present. In re Elvina M. Munk, [6] BIIA Dec., 58,847 (1982). The Munk record amply demonstrated that the effect of another's presence during the examination "would substantially frustrate the ability of the physicians to perform a proper examination." Id. at 2. The question in this instance is whether Ms. Alcorn's relocation frustrated the effort to train her for employment as a pharmacist's assistant.
The record is silent regarding the availability of vocational services or pharmacist's assistant positions in the Forks/Port Angeles area. The Department's justification for suspension of benefits was Ms. Luedtke's conclusion that Ms. Alcorn's move out of the Monroe job market represented noncooperation. In light of the directive that the Industrial Insurance Act is "remedial in nature and the beneficial purpose should be liberally construed in favor of the beneficiaries", [Wilber v. Department of Labor & Indus., 61 Wn.2d 439, 446, 378 P.2d 684 (1963) (citations omitted)] we are constrained to find that Ms. Alcorn's actions were not tantamount to a failure to cooperate.
As a result, the Department should not have suspended Ms. Alcorn's benefits due to her failure to return to the Monroe area. The Department should explore the feasibility of providing vocational services in the geographic area in which claimant resides, consider the appropriateness of a behavioral contract to assure Ms. Alcorn's cooperation with the vocational program developed, and determine if claimant could commute to the area in which a pharmacist's assistant position would be available.
After consideration of the Proposed Decision and Order and the Petition for Review filed thereto, and a careful review of the entire [7] record before us, we are persuaded that the Proposed Decision and Order is not supported by the evidence and is incorrect as a matter of law.
FINDINGS OF FACT
1. On January 29, 1987, the Department of Labor and Industries received an application for benefits alleging that claimant, Louella C. Alcorn, sustained an industrial injury on January 21, 1987, while in the course of her employment with the Monroe Convalescent Center. On April 6, 1987, the Department issued an order allowing the claim and closing it with medical treatment benefits only. After an April 28, 1987 protest and request for reconsideration, the Department issued an order on June 1, 1987, setting aside its April 6, 1987 order and kept the claim open for authorized treatment and action as indicated.
The employer, on December 21, 1987, requested the Department to cancel any further time-loss compensation benefits. On December 22, 1987, the Department issued an order paying time-loss compensation benefits on an interlocutory basis. The employer filed a protest and request for reconsideration on January 8, 1988. On January 11, 1988, the Department allowed the claim and time-loss compensation benefits were paid. On February 3, 1988, the Department issued an order determining the claim had not been allowed and paying provisional time-loss compensation benefits.
On February 8, 1988, the Department issued an order correcting, superseding, and modifying from final to interlocutory the January 11, 1988 order and stating the claim had not been allowed and providing for payment of provisional time-loss compensation benefits. On March 8, 1988, the Department issued an order paying time-loss compensation for the period July 1, 1988 through July 12, 1988. That same date, the Department issued an order providing for four semi-monthly time-loss compensation payments for the period starting February 7, 1988.
On April 21, 1989, the Department issued an order canceling time-loss compensation benefits for April 27 and May 12, 1989, because claimant moved without notifying the Department. Subsequent time-loss compensation orders were entered on May 1, 1989. [8]
On May 1, 1989, the Department issued a letter notifying claimant to move back to the Monroe area and cooperate fully with vocational services since the Department and vocational counselor were not notified of claimant's intended move, advising claimant time-loss compensation benefits would be paid for a period of 30 days only, and that benefits would be suspended if claimant decided not to cooperate. On June 19, 1989, claimant filed a protest and request for reconsideration. On July 11, 1989, the Department issued an order suspending time-loss compensation benefits, effective June 1, 1989, for failure to cooperate in vocational rehabilitation.
On July 24, 1989, the claimant filed a notice of appeal from the July 11, 1989 Department order with the Board of Industrial Insurance Appeals. On August 16, 1989, the Board issued an order granting the appeal, assigning it Docket No. 89 2619, and directing that hearings be held on the issues raised by the appeal.
2. On January 21, 1987, Louella Alcorn injured her right wrist when an agitated patient struck her as she tried to transfer the patient into bed, while working as a nursing assistant for the Monroe Convalescent Center.
3. As a result of the injury of January 21, 1987, Ms. Alcorn fractured her right wrist, which required medical treatment including surgery.
4. On the date of her injury, Ms. Alcorn lived in Monroe, Washington. She moved several times after her injury, and in February 1989, resided with her husband's grandparents in Sultan, Washington. In March 1989, she received a vocational evaluation, after having missed prior appointments. During that period of time, she was slow to answer letters from the Department and often could not be reached.
5. In late March 1989, Ms. Alcorn moved, with her husband and children, to Forks, Washington where the cost of living was less and low-income housing had become available.
6. The Department contracted with a vocational rehabilitation consultant to provide vocational training to Ms. Alcorn from December 19, 1988 through June 19, 1989. A vocational plan for pharmacist's assistant was developed. [9]
7. Ms. Alcorn's move to the Forks, Washington area did not frustrate or obstruct the effort to retrain her vocationally.
CONCLUSIONS OF LAW
- The Board of Industrial Insurance Appeals has jurisdiction over the parties and the subject matter to this appeal.
- Ms. Alcorn's relocation of her residence from Monroe, Washington to Forks, Washington did not obstruct the vocational rehabilitation plan and did not constitute noncooperation with the Department, within the meaning of RCW 51.32.110.
- The order of the Department of Labor and Industries dated July 11, 1989, suspending time-loss compensation benefits effective June 1, 1989, for failure to cooperate with vocational rehabilitation is incorrect and should be reversed and remanded with directions to the Department to reinstate benefits and take further action as required by law.
It is so ORDERED.
Dated this 6th day of February, 1991.
BOARD OF INDUSTRIAL INSURANCE APPEALS
/s/
SARA T. HARMON Chairperson
/s/
FRANK E. FENNERTY, JR. Member