Jarvis v. Montgomery Development Corp. (Nov. 25, 1996)
DEPARTMENT OF LABOR AND INDUSTRY
Michael Jarvis File # E-18142
By: Barbara H. Alsop
v. Hearing Officer
For: Mary S. Hooper
Montgomery Development Commissioner
Corporation Opinion #: 73-96WC
Hearing held in Montpelier, Vermont, on October 7, 1996.
Record closed on October 17, 1996.
APPEARANCES
L. Raymond Massucco, Esq., for the claimant
Keith J. Kasper, Esq., for the employer
ISSUE
Whether the claimant is entitled to a reinstatement of his vocational rehabilitation benefits.
THE CLAIM
1. Vocational rehabilitation benefits pursuant to 21 V.S.A. §641(b).
2. Attorney's fees and costs pursuant to 21 V.S.A. §678(a).
STIPULATIONS
1. Plaintiff, Michael Jarvis, was an employee within the meaning of the Workers'
Compensation Act (hereinafter "Act") on August 30, 1991.
2. Montgomery Development Corporation was the employer within the meaning of the Act
on August 30, 1991.
3. Aetna Life and Casualty was the workers' compensation insurer for the employer on
August 30, 1991, within the meaning of the Act.
4. On August 30, 1991, Claimant suffered an injury to his right shoulder arising out of
and in the course of his employment with the employer.
5. Claimant seeks further vocational rehabilitation benefits from the carrier.
6. Defendant denies liability for those ongoing benefits.
7. Defendant closed vocational rehabilitation benefits on June 29, 1995, alleging Claimant's
failure to follow through on the vocational rehabilitation process.
8. Following this termination of vocational rehabilitation benefits, Claimant worked at a
self-employment plan for six months.
9. The self-employment plan was unsuccessful and Claimant contacted the Department
of Labor and Industry seeking further vocational rehabilitation benefits.
10. By letter dated April 12, 1996, the Department of Labor and Industry, through
John Kuncz, Workers' Compensation Supervisor, determined that Claimant was not entitled
to further vocational rehabilitation services.
11. The sole issue before the hearing officer is whether or not Claimant is entitled to
further workers' compensation benefits.
EXHIBITS
1. Joint Exhibit: Medical records notebook
2. Claimant's Exhibit 1: Business plan
3. Claimant's Exhibit 2: Vocational rehabilitation plan
4. Claimant's Exhibit 3: Softplan Design Software brochure
5. Claimant's Exhibit 4: Letter from L. Raymond Massucco, Esq.,to John M. Kuncz
dated 5/26/96
6. Claimant's Exhibit 5: Letter from L. Raymond Massucco, Esq.,to Carol Kurimay
dated 5/26/96
7. Claimant's Exhibit 6: Letter from L. Raymond Massucco, Esq., to John M, Kuncz
dated 6/8/95
8. Claimant's Exhibit 7: Letter from L. Raymond Massucco, Esq., to Carol Kurimay
dated 7/7/95
9. Claimant's Exhibit 8: Letter from L. Raymond Massucco, Esq., to John M. Kuncz
dated 7/7/95
10. Claimant's Exhibit 9: Letter from L. Raymond Massucco, Esq., to John M. Kuncz
dated 7/24/95
11. Claimant's Exhibit 10: Letter from John M. Kuncz to L. Raymond Massucco and
Robert Ronan dated 4/12/96
12. Claimant's Exhibit 11: Letter from Department of Labor and Industry dated 3/11/96
scheduling a conference for 4/12/96
FINDINGS OF FACTS
1. The above stipulations are accepted as true and the exhibits are admitted into
evidence. Notice is taken of all forms filed with the Department of Labor and Industry.
2. The claimant was a construction supervisor prior to his work related injury. Some
period of time after his injury, the claimant was diagnosed with fibromyalgia. As a result
of this diagnosis, the claimant was not able to return to his prior employment as it
required much more physical activity than the claimant was able to perform. The claimant
began receiving vocational rehabilitation benefits through Wagner Rehabilitation, Inc.,
and his counselor was John May. The claimant was working with Mr. May to establish a
training program so that he could become involved in architectural drafting. Mr. May told
the claimant that he would probably have to find a way to work out of his home because
of his physical limitations.
3. Mr. May was transferred out of the claimant's area, and the claimant was reassigned
a new vocational rehabilitation counselor, Carol Kurimay. The claimant and his wife met
with Ms. Kurimay on a number of occasions, including one in which the claimant presented
a self-employment plan to Ms. Kurimay. Ms. Kurimay did not encourage the claimant to
pursue the plan, but rather attempted to get him into a drafting program. Ms. Kurimay
advised the claimant that there were a number of steps that the claimant needed to go
through to satisfy regulatory rules before a self-employment plan would be
acceptable.
4. The claimant and his wife continued to work on his self-employment plan, and finally
presented it to Ms. Kurimay. It was her impression that they never seriously considered
any alternative to the self-employment plan in spite of her recommendations to the
contrary. Because of her concern that the plan was not acceptable, she arranged a
meeting between the claimant and John Wagner, because Mr. Wagner had more experience
than she with self-employment plans in Vermont. While the claimant and his wife
testified that Mr. Wagner was enthusiastic about the plan, Ms. Kurimay indicated that
Mr. Wagner was concerned about the necessity to consider other options before
embarking on a self-employment plan. I find Ms. Kurimay's testimony more credible in this
regard.
5. On April 24, 1995, the claimant and Ms. Kurimay had an informal conference with
John Kuncz, the Workers' Compensation Supervisor for the Department of Labor and
Industry, with regard to the claimant's self-employment plan. Although the claimant and
his wife indicated that they were shocked by Ms. Kurimay's opposition to the plan, they
agreed that she had never indicated that she supported the plan prior to the conference.
At the conference, Mr. Kuncz rejected the plan as premature, and instructed the parties
to develop an Individual Written Rehabilitation Plan ("IWRP"). He explained that there was a hierarchy in the rules with regard to rehabilitation plans and that self-employment was
the last step. He had no information at the time of the conference that the claimant had
completed the first five steps. There was no written confirmation of the results of the
conference.
6. After the conference, Ms. Kurimay sent the claimant a letter requesting that they
meet to begin the process outlined by Mr. Kuncz. The claimant did not respond to that
letter, and instead retained counsel to assist him. The attorney for the claimant wrote a
letter on May 26, 1995, to Mr. Kuncz requesting a copy of the Department's file as well
as a written summary of the meeting of April 24. Although it appears that the attorney
received a copy of the file, no written summary of the April 24 meeting was ever created.
7. On May 24, 1995, when the claimant missed a second scheduled appointment,
Ms. Kurimay wrote him a letter indicating that she would be placing the file on hold until
June 24, 1995, and would assume that the claimant was not interested in further
vocational rehabilitation services if she did not hear from him by that date. On May 26,
1995, the attorney wrote a letter to Ms. Kurimay notifying her of his appearance and
requesting that she forward her recommendations for retraining or self-employment to him.
Ms. Kurimay responded to this letter on June 1, 1995, and advised of her attempts to
contact the claimant. She also indicated in that letter that she believed that the claimant
had transferrable skills and would be properly placed in an educational program. Ms.
Kurimay did not receive a response to this communication prior to June 24, 1995.
8. On June 29, 1995, Ms. Kurimay forwarded a Form VR-5, Vocational Rehabilitation
Closure Report, to the Department, citing as the reason for the closure the failure of
the claimant to follow up with the counselor the IWRP as ordered by Mr. Kuncz.
The claimant's attorney received a copy of that report and wrote to Ms. Kurimay on
July 7, 1995, indicating that he was "not in a position to discuss or negotiate further
vocational rehabilitation benefits to which Mr. Jarvis is clearly entitled," without receiving
the information he requested from Mr. Kuncz. He sent a copy of that letter to Mr. Kuncz
along with a letter indicating his desire for another informal conference, stating that
"I intend to pursue the self-employment avenue for Mr. Jarvis until it is either approved,
or if formally rejected, that we have some objective basis for its rejection."
Mr. Kuncz did not respond to that letter.
9. The claimant did begin to work on his self-employment plan in a modified way.
His original plan was to open an archery shop with an interactive target system. In the
business plan, the claimant reiterated that the interactive system was a crucial element
in the plan because it was what would separate him from the other local archery shops.
He also indicated in the plan, dated April 1995, and produced at the April 24, 1995
conference, that he had already commenced selling bows and performing repairs, and that
he had set up accounts with a number of suppliers in preparation of opening his business.
When the claimant began to work at his business in the summer of 1995, he did not have
the interactive target system, and hence did not have the part of his plan that separated
him from the others.
10. The claimant and his wife testified that the project was not successful. They ordered
a number of items for the shop, which was located in their home and not in the location
they originally selected, and found that they had not ordered the items most frequently
sought by their clientele. As a result, they had to order additional products, while
maintaining their inventory of less desirable items. They did not get enough word-of-mouth
advertising to assist them in their sales, and their selling season was limited to the bow
hunting period in the early fall because of their failure to obtain the interactive target
system. As a result of the shortfalls in their planning, the enterprise was not successful.
Although the representation was made at a conference in April of 1996 that the project
continued for six months, both Mr. and Mrs. Jarvis testified at the hearing that the
failure occurred at the latest at the end of October, not in December as previously reported.
11. The claimant applied for and received an award of social security disability benefits
in December of 1995. Thereafter, he requested another informal conference in order
to re-establish vocational rehabilitation services. His plan was to return to the previously
recommended field of architectural design.
12. An informal conference was held on April 5, 1996, at which his application for further
benefits was denied. In his formal denial letter, Mr. Kuncz wrote that Mr. Jarvis did not
comply with the Department's directives in the April of 1995 conference, and that he
"chose not to cooperate with the efforts of Ms. Kurimay" to work on a vocational plan.
Mr. Kuncz concluded that "It is my opinion that Mr. Jarvis cannot disengage himself from
the vocational rehabilitation process to pursue his self-employment plan and then six
months later when the plan fails, return to the carrier requesting that they re-initiate
the vocational rehabilitation services." It is based on this ruling that the claimant has
sought the hearing in this matter.
13. The claimant has not produced any evidence with regard to his fee agreement with
his attorney or his costs in this matter.
CONCLUSIONS
1. In workers' compensation cases, the claimant has the burden of establishing all
facts essential to the rights asserted. Goodwin v. Fairbanks, Morse Co., 123 Vt. 161 (1963).
The claimant must establish by sufficient credible evidence the character and extent
of the injury as well as the causal connection between the injury and the employment.
Egbert v. The Book Press, 144 Vt. 367 (1984).
2. Once it has been established that a claimant is entitled to benefits under the
Workers' Compensation Act, the burden shifts to the employer to establish the propriety
of either ceasing or denying further compensation. Merrill v. University of Vermont,
133 Vt. 101 (1974).
3. Vocational rehabilitation is required for a claimant "[w]hen as a result of an injury
covered by this chapter, an employee is unable to perform work for which has previous
training or experience...." 21 V.S.A. §641(b). The services to which such an employee
would be entitled are "...retraining and job placement, as may be reasonable necessary
to restore him to suitable employment." Ibid. Suitable employment is defined as
employment that is reasonable comparable to the claimant's pre-injury job, and reasonable
attainable. See Rule 26(e), Workers' Compensation and Occupational Disease Rules.
4. In a case with substantial parallels to the instant case, we have ruled that a claimant
may not choose, at the employer's expense, to seek alternatives to the carrier's
rehabilitation program without first exhausting all options under that program.
In Main v. Nastech, Opinion No. 88-95WC, the claimant elected to forego the
vocational rehabilitation program recommended by a competent counselor and to proceed
on another path. While she was allowed to do so, she was found not to be entitled to
assistance from the employer/carrier in her new venture. Accordingly, in this case,
it is clear that the employer is not required to assist the claimant in his self-employment
plan, given that he did not follow the advice of a competent counsel but chose to pursue
his own plan.
5. Having once determined that the claimant is not entitled to compensation for his
self-employment plan, the question becomes whether he is entitled to reinstatement
of employer supplied vocational rehabilitation after taking a "time out" to try his
disapproved plan. I find that he is not. The claimant was apprised of the possible
consequences of his choice to refuse to cooperate with Ms. Kurimay by her letters to
him, consequences specifically authorized by Rule 30(a)(1), of the Workers'
Compensation and Occupational Disease Rules. His lawyer's letter of July 7, 1995, is
unavailing given that the Form VR-5 had already been filed. The appropriate remedy at
that time was to file a Form 6, Request for Hearing, rather than to make the empty
threat to act without Departmental approval. The claimant's admission in the stipulation
that he worked for six months at his self-employment moreover suggests that he had
a sufficiently successful return to work to negate any further entitlement to vocational
rehabilitation services, notwithstanding his testimony in derogation of the stipulation.
See, e.g., Rule 30(a)(2).
6. The claimant not having prevailed is not entitled to an award of attorney's fees and
costs, even assuming he had perfected his request.
ORDER
THEREFORE, based on the foregoing findings of fact and conclusions of law, it is hereby
ORDERED that the claimant's request for reinstatement of vocational rehabilitation benefits
be DENIED.
DATED at Montpelier, Vermont this 25th day of November 1996.
_____________________________
Mary S. Hooper
Commissioner