No. 95-184 IN THESUPREME

COURTOFTHESTATEOFMONTANA 1995

STATEOFMONTANA,ex rel. CELIACOBBS,

Relator andAppellant, NOV21~~~$ v. MONTANA

DEPARTMENT

OFSOCIALAND REHABILITATION SERVICES,

Respondent and Respondent.

APPEALFROM: District Court of the Nineteenth Judicial District,

In and for the County of Lincoln, TheHonorable Robert S. Keller, Judge presiding.

COUNSELOFRECORD:

For Appellant: Allan M. McGarvey, McGarvey, Heberling, Sullivan &McGarvey, Kalispell, Montana For Respondent: Cary B. Lund, Legal Counsel, Department of Public Health and HumanServices, Helena, Montana

Filed: Submitted on Briefs: August 24, 1995 Decided: November 21, 1995Justice Terry N. Trieweiler delivered the opinion of the Court.

The appellant, Celia Cobbs, filed an application in the District Court for the Nineteenth Judicial District in Lincoln County for a Writ of Mandate that would have directed the Department of Social and Rehabilitation Services (SRS) to disburse funds from the Industrial Accident Rehabilitation (IAR) Account for her rehabilitation expenses, as authorized by the Department of Labor. The District Court concluded that SRShad no clear duty to disburse the funds, and that Cobbs' exclusive remedy was provided by law. Therefore, the court denied her application. Cobbs appeals from the order and judgment of the District Court. We

reverse. The issue on appeal is: Does the State Department of Social and Rehabilitation Services owe a clear legal duty to distribute funds from the Industrial Accident Rehabilitation Account when the Montana Department of Labor authorizes the distribution pursuant to 539-71-2001, MCA (1993)?FACTUAL BACKGROUND Celia Cobbs is an injured worker entitled to workers' compensation benefits. She is unable to return to her former job because of a work-related injury. She had a dispute with her employer's insurer over her right to rehabilitation benefits and filed apetition in the Workers' Compensation Court to resolve that dispute. After atrial, she settled her claim by agreeing upon a

2rehabilitation plan with her employer's insurer. Theplan called

for payment from the IAR Account in the amount of $680.75 for tuition andfees, together with $250.00 per semester for books and materials during a two-year course of study at Flathead Valley Community College. The State Department of Labor, Employment Relations Division, and the Workers' Compensation Court approved the plan. OnJanuary 13, 1994, the Department of Labor wrote to SRSand authorized the expenditure of funds from the IAR Account for the tuition, books, andmaterials described in the rehabilitation plan. The authorization specified that it was for expenditure of funds and that Cobbs was not seeking rehabilitation services. SRS, however, refused to disburse funds from the IAR Account based on its conclusion that Cobbs did not qualify for that Department's rehabilitation services. Cobbsthen applied to the District Court in Lincoln County for

aperemptory Writ of Mandate to compel the Department of Social and Rehabilitation Services to distribute funds pursuant to her rehabilitation plan. Cobbs contended in District Court that the IARAccount was established exclusively for workers' compensation claimants and that while the funds may be used to provide rehabilitation services through SRSpursuant to §39-71-1003, MCA, the funds could also be used pursuant to 539-71-2001(l) (d), MCA (1993), when the Department of Labor authorizes use of the funds for expenses related to aprivate rehabilitation plan.

3The District Court concluded that the IAR Account is

statutorily dedicated to payment for rehabilitation services for injured workers provided by the State of Montana's vocational rehabilitation program, andthat because Cobbswasnot aclient of that program she was prohibited from receiving funds from the Account. The District Court also held that 5 39-71-1003, MCA, provides that 5 53-7-106, MCA, is Cobbs' exclusive remedy for denial of SRSservices. Onappeal, Cobbspoints out that shedid not seek rehabilitation services or payments pursuant to 5 39-71-1003, MCA. She agrees that she does not qualify for those services, but contends that she is entitled to rehabilitation expenses which are related to her privately developed plan pursuant to 539-71-2001(l) (d), MCA (1993). DISCUSSION Does the State Department of Social and Rehabilitation Services owe a clear legal duty to distribute funds from the Industrial Accident Rehabilitation Account when the Montana Department of Labor authorizes the distribution pursuant to 539-71-2001, MCA(1993)? The issuance or denial of awrit of mandate is amatter of legal interpretation which wewill review to determine whether the district court's legal interpretation is correct. Phillipsv.City

### of Livingston (1994), 268Mont. 156, 161, 885P.2d 528, 531. Atwo-part standard applies to the issuance of awrit of mandate. Stateexrel.

4Chisholmv. DistrictCourt (1986), 224 Mont. 441, 443, 731 P.2d 324, 325.

Thewrit is available whenthe party whorequests it is entitled to the performance of aclear legal duty bythe party against whomthe writ is sought, and where no speedy and adequate remedy in the ordinary course of law is available. Section 27-26-102, MCA;see Stateexrel. Gallowayv. CityofGreatFalls (1984)) 211 Mont. 354, 358, 684P.2d 495, 497. Anegative answer to the first question bars the issuance of the writ, and, irrespective of the answer to that question, an affirmative answer to the second, divests the court of authority to issue it. Chisholm, 731 P.2d at 325. Onappeal, Cobbscontends that the District Court's denial of her application was incorrect on both grounds. First, Cobbs contends that SRShasaclear legal duty to disburse the funds from the IARAccount. Second, Cobbsasserts that the SRSappeal process pursuant to §53-7-106, MCA,is inapplicable because she did not seek SRSservices. Cobbs contends that SRShas a clear legal duty to disburse funds pursuant to § 39-71-2001, MCA (1993), which authorizes privately developed rehabilitation plans, andtherefore, that the District Court abused its discretion whenit failed to find aclear legal duty on the part of SRSand denied the writ. SRSasserts that application for SRSservices pursuant to §39-71-1003, MCA,is the only route to the IARfunds, andtherefore, that all recipients of IARAccount monies must independently beeligible clients of SRS

5rehabilitation programs. Weconclude that SRS's position, which

was adopted by the District Court, is inconsistent with statutory law. The SRS is statutorily required to provide "vocational rehabilitation" and "vocational rehabilitation services" pursuant to the Federal Rehabilitation Act of 1973. 29 U.S.C. §§ 701-796. These services must be provided to anyone who qualifies pursuant to SRS criteria found at §53-7-105, MCA. Vocational rehabilitation must also be provided by workers' compensation insurers to claimants who, by virtue of awork-related injury, are "physically unable to work at the job the worker held at the time of injury." Section 39-71-2001(l) (b), MCA(1993). This is adifferent standard than the standard by which eligibility for SRS services is determined. The IAR Account is provided for at 539-71-1004, MCA. It is funded by self-insured employers, Plan II insurers, and the Department of Labor. Its purpose is to pay rehabilitation expenses of injured workers. Subsection (4) specifically provides that "[n]o part of the funds

. . . shall be used in payment of administrative expenses of the department or department of social and rehabilitation services." Section 39-71-1004(4), MCA (1993). Whenwe construe astatute, "the office of the judge is simply to ascertain and declare what is in terms or in substance contained therein, not to insert what has been omitted or to omit what has been inserted." Section l-2-101, MCA. The Court is to effectuate

6the intent of the Legislature, and if the Legislature's intent can

be determined from the plain meaning of the words used in a statute, the courts maynot gofurther andapply anyother meansof interpretation. Clarkev.Massey(Mont. 1995), 897P.2d 1085, 1088, 52 St. Rep. 538, 540 (citing Tongue River Elec. Co-op. Y.Montana Power Co. (1981) , 195Mont. 511, 515, 636 P.2d 862, 864). Section 39-71-2001(l) (b), MCA(19931, provides that aninjured worker who"is physically unable to work at the job the worker held at the time of the injury" is eligible for rehabilitation benefits. TheLegislature enacted 539-71-2001, MCA,in 1991whenit amended the Workers' Compensation Act bypassing HB837which, amongother changes, enacted Title 39, Chapter 71, Part 20, "Rehabilitation Benefits." Section -2001(l) (d) of the newly enacted part further provides that: (1) An injured worker is eligible for rehabilitation benefits if: (d) arehabilitation plan between the injured worker and the insurer is filed with the department [of Labor and Industry]. If the plan calls for the expenditure of funds under 39-71-1004 [the Industrial Accident Rehabilitation Account], the deuartment shall authorize the department of social and rehabilitation services to use the funds. Section 39-71-2001(l) cd), MCA(1993) (emphasis added). This statute explicitly provides for the development of a rehabilitation plan which maycall for "the expenditure of funds" from the IARAccount. Section 39-71-2001(l) cd), MCA(1993), also specifically directs that the "department shall authorize" the use of the funds for the rehabilitation plan.

7SRS's argument to the contrary assumes that only its agency

can provide rehabilitation services to injured workers. However, the plain language of 539-71-1014, MCA,indicates that vocational services, including the development of a formal rehabilitation plan, may be delivered exclusively by a private rehabilitation provider. For example, that statute provides: (1) Rehabilitation services are required for disabled workers andmaybe initiated by: (a) an insurer by designating a rehabilitation provider andnotifying the department; i2j

. . Rehabilitation services provided under this part [of the Workers' Compensation Act] must be delivered: (a) throuqha rehabilitation counselor certifiedbv the board of rehabilitation certification; (b) bv a vocational rehabilitation counselor employed by-the department of social and rehabilitation services; or Cc) bv both. Section 39-71-1014, MCA(emphasis added). The plain language of 5 39-71-1014, MCA, allows workers' compensation claimants to receive vocational rehabilitation from certified private rehabilitation providers instead of, or in addition to, SRSservices. Moreover, rehabilitation provider is defined as: [Al rehabilitation counselor certified bv the board for rehabilitation certification and desisnated bv the insurer to the deoartment or adepartment of social and rehabilitation services counselor whenaworker hasbeen certified bythe department of social andrehabilitation services under 39-71-1003. Section 39-71-1011(5), MCA(1993) (emphasis added).

8A "rehabilitation counselor certified by the board for

rehabilitation certification" is not necessarily anSRScounselor, but maybeaprivate counselor. See§39-71-1011(l), MCA(defining board of rehabilitation certification). Thus, the plain language of 5539-71-lOll(5) and -1014, MCA, establishes that an injured worker may receive vocational rehabilitation solely from aprivate provider, without using SRS counselors. Furthermore, there is no requirement that injured workers seek services from SRS--although vocational services maybe provided to injured workers' compensation claimants by SRS. Therefore, §§ -1011(5), -1014, and -2001, when read together, require the conclusion that funds from the IAR Account are available for rehabilitation expenses whena"rehabilitation plan" has been developed by the insurer, claimant, and rehabilitation provider andfiled with the Department of Labor, not just whenSRS "services" are provided. Privately developed rehabilitation plans,

as authorized by 5 39-71-2001, MCA (1993), would be rendered meaningless and impossible if this Court was to interpret 539-71-2001, MCA(1993), in away that gave SRSa right to deny benefits to workers based on criteria other than those listed in the Workers' Compensation Act. If approval was required, whether

or not the insurer and the claimant agreed to a "rehabilitation plan," the expenses could not be paid unless the claimant also developed arehabilitation plan asaclient of SRS. Thefiling of the rehabilitation plan with the Department of Labor would be a

9useless exercise if the worker wasrequired to reapply for services

as an SRSclient and develop a new rehabilitation plan through SRS's rehabilitation "services." Moreover, the Department of Labor's "authorization" of the expenditure of funds from the IAR Account would havenomeaning if, regardless of such authority, the claimant was still required to apply for rehabilitation services through SRS. Finally, the IARAccount would serve nofunction for workers' compensation employers, insurers, andclaimants if it was solely utilized for clients of SRS. The Legislature does not perform useless acts. Kishv.Montana StatePrison (1973), 161Mont. 297, 301, 505P.2d 891, 893. Therefore,

weconclude that §39-71-2001, MCA(1993), does afford independent

access to the IAR Account for payment of expenses related to a worker's rehabilitation plan developed by the insurer, claimant, andprivate rehabilitation provider and filed with the Department of Labor. This access is in addition to, andindependent from, the payment of expenses pursuant to §39-71-1003, MCA. Furthermore, the Department of Labor's authorization, pursuant to §39-71-2001, MCA (1993), creates a clear legal duty on the part of SRSto disburse those funds. Weconclude that Cobbsalso meets the second requirement for

a writ of mandate because no speedy and adequate remedy in the ordinary course of law wasavailable to her.

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