NO. 95-317

IN THE SUPREME COURT OF THE STATE OF MONTANA

1995

JOAN REEVES,

Petitioner and Appellant,

LIBERTY MUTUAL FIRE

INSURANCE COMPANY,

Respondent and Insurer for

UNITED PARCEL SERVICE,

Employer.

APPEAL FROM: The Workers Compensation Court of

the State of Montana,

The Honorable Mike McCarter, Judge presiding

COUNSEL OF RECORD:

For Appellant:

Michael P. Sand and Julianne C. Burkhardt,

Sand Law Offices, Bozeman, Montana

For Respondent:

Larry W. Jones, Missoula, Montana

Filed:

Submitted on Briefs: November 16, 1995

Decided: February 12, 1996
Chief Justice J. A. Turnage delivered the Opinion of the Court.

Joan Reeves appeals a decision of the Workers' Compensation

Court denying her request for rehabilitation benefits to permit her

to pursue a master's degree in counseling. We affirm.

The sole issue raised is whether Reeves is eligible for a

rehabilitation plan pursuant to § 39-71-2001, MCA (1993). Therefore we do not address the important issue discussed in the

concurring opinion.

Joan Reeves injured her back in January 1994 while employed as

a driver for United Parcel Service (UPS). After she reached

maximum medical healing, she was restricted to work with medium

physical demands, preventing her from returning to her job at UPS.

She settled her workers' compensation claim for permanent partial

disability in August 1994, specifically leaving open her claim for

rehabilitation benefits pursuant to 5 39-71-2001, MCA (1993).

Reeves subsequently proposed a rehabilitation plan to UPS's

insurer, Liberty Mutual Fire Insurance Company, under which she

would pursue a two-year program leading to a master’s degree in

counseling. Liberty Mutual rejected the proposal. Reeves then

petitioned the Workers' Compensation Court for a hearing on whether

she was entitled to rehabilitation benefits to pursue her plan.

The Workers' Compensation Court held a hearing on May 31,

1995, after which it denied Reeves' request for rehabilitation

benefits. The court ruled that Reeves' proposed plan was not

reasonable because she did not establish a reasonable expectation

2
that the plan would improve her position in the job market. Reeves

appeals.

Is Reeves eligible for a rehabilitation plan pursuant to § 39-

71-2001, MCA (1993)?

Section 39-71-2001(l), MCA (1993), provides:

Rehabilitation benefits. (1) An injured worker is

eligible for rehabilitation benefits if:

(a) the injury results in permanent partial

disability or permanent total disability as defined in

39-71-116;

(b) a physician certifies that the injured worker

is physically unable to work at the job the worker held

at the time of the injury;

(c) a rehabilitation plan completed by a rehabilitation provider and designated by the insurer certifies

that the injured worker has reasonable vocational goals

and a reemployment and wage potential with rehabilitation. The plan must take into consideration the worker's

age, education, training, work history, residual physical

capacities, and vocational interests.

Cd) a rehabilitation plan between the injured

worker and the insurer is filed with the department. If

the plan calls for the expenditure of funds under 39-71-

1004, the department shall authorize the department of

social and rehabilitation services to use the funds.

We previously interpreted and applied this statute in State of

Montana ex rel. Cobbs v. Montana Department of Social and Rehabilitation Services (Mont. 1995), ~ P.2d ~, 52 St.Rep. 1166

However, that case did not involve the issue here presented.

Liberty Mutual concedes that Reeves has met the requirements

of subsections (1) (a) and (b) above. However, Liberty Mutual

refused to participate in documenting Reeves' plan, instead merely

assigning a rehabilitation counselor to offer her job placement

assistance. Liberty Mutual did not designate Reeves' rehabilitation plan as a plan representing "reasonable vocational goals and

3
a reemployment and wage potential with rehabilitation," pursuant to

subsection (1) (cl, above. As a result, no plan was filed with the

department pursuant to subsection (1) (d) above.

Reeves contends that Liberty Mutual admitted that she would

earn $32,000 per year as a licensed practical counselor in private

practice. This contention is based upon a proposed finding

submitted to the Workers' Compensation Court by Liberty Mutual:

"The Claimant plans, if she receives her master's degree, to work

as a licensed practical counselor earning approximately $~Z,OOO.OO

a year counseling clients in private practice."

Reeves' contention is without merit. A statement of an

opposing party's plan does not equate to a statement of belief in

the merits of the plan. The statement of Reeves' plan was not a

concession that Reeves would actually earn the amount she planned

to earn.

The Workers' Compensation Court heard evidence that, prior to

her employment with UPS, Reeves earned a bachelor's degree in home

economics with a family science option and that she held a longterm goal of obtaining a master's degree in counseling. Reeves had

been working at UPS to save money to return to college to continue

her schooling. She did not utiiize her undergraduate degree to

work in the field of social services for several reasons.

First, she could earn more money as a driver for UPS. Reeves'

time-of-injury earnings with UPS were $12.82 per hour. Average

wages for the social work/counseling field with a bachelor's degree

were $9.62 per hour.

4
Second, Reeves did not wish to work with the type of clientele

with whom she would have to work, with only an undergraduate

degree. In her own words:

THE COURT: [Your] degree is with the family services

options and you are interested in family counseling. Why

haven't you looked for jobs in the family services area?

THE WITNESS: Because those jobs--the salaries for those

jobs are--I guess basically that is not where I want to

be. I've always wanted to be in family practice. ?'here

is a whole different clientele between entry-level jobs

with my degree and the clientele that I would be working

with as a counselor.

Q. What I would like you to do, Joan, is maybe explain

for the judge the difference in the type of work that you

would do with the bachelor's degree that you presently

hold as opposed to the type of work you would expect to

do with a master's degree.

A. Okay. Let's take an example that maybe I was like a

social worker. I don't know that I could be an actual

social worker, but something in that field.

Basically, in my opinion, you would be dealing with

kids, families who were in deep trouble, financial

trouble, you know, possibly abuse situations, just some

real sad case scenarios. That has just never been--you

know, kids that probably are not being taken care of

properly and that sort of thing.

My clientele who I would like to work with are more

just couples that are having problems, people that are

coming to you who want to get well, who can get well, who

have the--who are there because they want to solve the

problem.

A lot of these other jobs you can't help people. I

mean they are in these situations by circumstance. They

are, you know, due to poverty or some sort of situations,

I mean in some ways beyond their control and, secondly,

things that they don't want to change. I don't care to

be involved in those situations.

I choose to be involved in situations where I feel

like I can more make a difference. You get kids and

their parents are abusing them and that sort of thing,

and you just have no control over that. Those are not

situations that I care to be involved with.

SO marriage and family therapy, people come in who

want to get well. They are real motivated to get well.

5
They are paying you for a service and, you know, they

want to get well. That's who I want to work with.

That's who I've always wanted to work with.

Q. Would the primary difference be the type of individual that you are working with?

A. Yes.

Reeves testified that at the time of the hearing she was earning

$9.81 per hour as a telemarketer and ad salesperson for the Bozeman

Daily Chronicle newspaper. She further testified that, once she

earned her master's degree, she planned to be self-employed as a

COUIlSelOr. She stated that her father had offered to provide her

with start-up costs of opening her own office.

Liberty Mutual concedes that Reeves' rehabilitation plan is

reasonable inasmuch as she has the ability to do graduate college

work. Susan Kern, the rehabilitation counselor to whom Liberty

Mutual referred Reeves, testified by deposition that Reeves'

vocational goal of obtaining a master's degree in counseling is

reasonable for her to attain and that Reeves has the intellectual

ability to complete the program. The Workers' Compensation Court

noted "it's reasonable to expect that she's capable of completing

the master's program and obtaining certification as a certified

counselor.'1

However, the evidence as to other aspects of the reasonableness of Reeves' plan was less favorable. Reeves testified she

intends to continue living in Bozeman, Montana. Kern testified

that the Bozeman area is saturated with professional counselors.

Q. As a vocational counselor what is your independent

impression for what this young lady should do?

6
A. Well, I thought--I think she's somewhat unrealistic

about her view of what therapy in the private sector is

like. I think, if that's truly her goal--and that's her

personal choice, if she wants to pursue it or not--I

think it's going to be very difficult to establish a

practice in Bozeman.

In her deposition, Kern stated:

I think that Bozeman has a very competitive market,

particularly in the self-employed, private counseling

area. There are 52 LPC's [licensed professional counselors] here. That's not counting the people who have

Master's in social work or clinical psychology. So it's

very competitive. It would be very hard to start a

business here unless you had a completely new or unusual

background that was really in demand to people.

Other than the fact that she knows many people in Bozeman, Reeves

presented no evidence of special experience or education that would

set her off from her competitors in opening a counseling practice.

The Workers' Compensation Court reasoned that Reeves' own

testimony proved that her expectations regarding employment as a

private counselor were not reasonable and realistic. The court was

not persuaded that, as a new counselor in the saturated counseling

market of Bozeman, Montana, Reeves would be able to attract the

kind of clientele to whom she wishes to limit her work.

The court concluded Reeves would be most likely to find

counseling work with a social services agency. Kern testified that

her investigation revealed there was often no pay differential

between persons with bachelor's and master's degrees in agency work

in the Bozeman job market. With a master's degree, the wage could

rise to as much as $14.42 per hour, but for most positions in that

market, entry-level wages were the same for a person with a

master's degree as for one with a bachelor's degree. At any rate,
Reeves does not wish to do agency work because it involves the type

of clientele she wishes to avoid.

While § 39-71-2001, MCA (1993), encourages rehabilitation

training for persons injured on the job, the statute does not

obligate the insurer to pay for every rehabilitation plan which may

be conceived by a qualified injured worker. If it did, subsection

(1) (c) of the statute would have no purpose.

Section 39-71-2001, MCA (1993), must also be viewed in light

of the purpose of the Workers' Compensation Act to return a worker

to work as soon as possible after a work-related injury or disease.

Section 39-71-105(2), MCA. That purpose would not be furthered by

removing a worker from the work force for two years of "rehabilitation" which will not put the worker in a better position to

obtain employment.

The decision of the Workers' Compensation Court was based upon

an absence of a reasonable expectation that Reeves' rehabilitation

plan would improve her position in the job market and on the

unreasonableness of the career envisioned in Reeves' proposed

rehabilitation plan as a means of employment, given her goals and

self-imposed limitations. Reasonableness is a question of fact.

Robertson v. Aero Power-Vat, Inc. (Mont. 1995), 899 P.2d 1078,

1080, 52 St. Rep. 673, 674. We review the Workers' Compensation

Court's findings of fact to determine whether they are supported by

substantial evidence. Stordalen v. Ricci's Food Farm (1993), 261

Mont. 256, 258, 862 P.2d 393, 394. Substantial evidence in the

record supports the Workers' Compensation Court's determination

8
that Reeves' proposed plan did not represent "reasonable vocational

goals and a reemployment and wage potential with rehabilitation,"

as required under 5 39-71-2001(l) (c), MCA (1993). We affirm the

decision of the Workers' Compensation Court.

We concur:

Justices

9
Justice James C. Nelson specially concurring.

I concur in the resolution of the issue raised on appeal, but

believe that the threshold and dispositive issue was never

presented to the Worker's Compensation Court and, therefore, is not

addressed or resolved by this Court.

Reeves appeals from the decision of the Workers' Compensation

Court denying her rehabilitation benefits under F, 39-71-2001, MCA

(1993). Basically, Reeves contends that she is entitled to

rehabilitation benefits because, on the basis of the rehabilitation

plan which she proposed, her vocational goal (to obtain a masters

degree in counseling) is both reasonable and attainable and in

accordance with her previous education, training, etc.

Liberty Mutual contends that Reeves' plan of obtaining a

masters degree in counseling with the goal of counseling only a

limited sort of clientele in Bozeman is not reasonable and has

virtually no chance of,success. Without going into detail, the

Workers' Compensation Court appears to have adopted the view of

Liberty Mutual--i.e., that Reeves' plan is neither reasonable nor

attainable.

I suggest that because of the posture in which this case was

presented to the Worker's Compensation Court by the parties, the

court did not have the opportunity to rule on the threshold and

dispositive legal problem here. Section 39-71-2001(l) (c), MCA

(1993), provides that an injured worker is eligible for

rehabilitation benefits if:

10
rehabilitation plan completed by a rehabilitation

irovider and designated by the insurer certifies that the

injured worker has reasonable vocational goals and a

reemployment and wage potential with rehabilitation. The

plan must take into consideration the worker's age,

education, training, work history, residual physical

capacities, and vocational interests.

Section 39-71-1011(4), MCA (1993), defines a "rehabilitation

plan" as:

an individualized plan to assist a disabled worker in

acquiring skills or aptitudes to return to work through

job placement, on-the-job training, education, training,

or specialized job modification.

That same section at (5) defines a "rehabilitation provider" as:

a rehabilitation counselor certified by the board for

rehabilitation certification [defined in subsection (l)]

and designated by the insurer to the department or a

department of social and rehabilitation services

counselor when a worker has been certified by the

department of social and rehabilitation services under

39-71-1003.

I submit that the threshold problem in this case is that there

never was a "rehabilitation plan" before the Workers' Compensation

Court. That conclusion follows from the fact that no

"rehabilitation provider I' designated by the insurer ever formulated

a "rehabilitation plan" while taking into consideration the

requirements of the applicable statutes

To the contrary, Liberty Mutual simply hired Susan Kern, a

rehabilitation counselor and, at the outset, instructed her that

she was to assist Reeves with job placement but was not to assist

her in preparation of a rehabilitation plan which included further

education. In other words, Liberty Mutual, up front, simply

dictated that there would be no rehabilitation plan formulated by

the professional person whose job it was, under § 39-71-2001(l) (c),

11
MCA (19931, to come up with a plan. Rather, Liberty Mutual made

the decision as to what rehabilitation benefits Reeves would be

entitled to--i.e., job placement assistance only--and then directed

the rehabilitation counselor to carry out that decision.

I suggest that implicit in § 39-71-2001, MCA (1993), in

general, and in subsection (1) cc), in particular, is the obligation

on the part of the insurer to, in good faith, designate a

"rehabilitation provider" and then to let the "rehabilitation

provider" formulate a "rehabilitation plan," taking into

consideration the statutory criteria--the worker's age, education,

training, work history, residual physical capacities, and

vocational interests. See 5 39-71-2001(l) (c), MCA. A plan

developed in accordance with that statute may include I'job

placement, on-the-job training, education, training, or specialized

job modification," or, presumably, any combination of those. See

5 39-71-1011(4), MCA (1993).

The point is that it is the rehabilitation provider's job to

formulate the rehabilitation plan, not the insurer's. See § 39-71-

2001(1)(c), MCA (1993). If the insurer can simply dictate at the

outset what the plan will or will not encompass and,

coincidentally, what benefits will or will not be provided, then

there is, obviously, no need for the services of a trained,

experienced and certified rehabilitation provider, much less any

input from the injured worker. Under those circumstances the

entire statutory scheme is frustrated and the resultant "plan" is

nothing less than a sham.

12
This interpretation is consistent with the purpose of the

statute to provide rehabilitative benefits to injured workers.

Moreover, I suggest that what the insurer cannot do is exactly what

Liberty Mutual did in this case--i.e., refuse the claimant the

opportunity for rehabilitative benefits consistent with a

rehabilitation plan formulated by a rehabilitation provider in

accordance with the statutory criteria and on the basis of the

counselor's professional knowledge, training and experience, and

work with the claimant. That is the threshold problem here as

regards Liberty Mutual.

On the part of Reeves, the statute clearly does not authorize

her to come up with her own rehabilitation plan as she is not a

rehabilitation provider under the statute nor has she been

designated in that capacity by the insurer (assuming that she had

the professional qualifications in the first place). Moreover,

simply because the claimant comes up with a plan of how she wants

to be rehabilitated, that does not obligate the insurer to agree

with her plan nor does it obligate the department or the court to

approve it.

Here, whether Reeves' plan was unrealistic and unworkable,

given the market and the type of practice she wanted to establish

was not the issue. Rather, in my view, the court was put into the

position of having to simply assume that the claimant's plan was

the statutory "rehabilitation plan." I suggest that there was, in

fact, no rehabilitation plan before the court as the statutory

requirements for formulating such a plan had not been even

13
minimally followed by Liberty Mutual. Furthermore, Reeves had no

statutory authority to come up with her own plan.

If the parties were required to follow the statutory scheme,

Liberty Mutual would be obligated to designate a "rehabilitation

provider" as defined in § 39-71-1011(5), MCA (1993), and then allow

the rehabilitation provider to independently work with the claimant

and develop a rehabilitation plan for presentation to the insurer.

Section 39-71-2001(l) (c) and cd), MCA (1993). Assuming that the

rehabilitation provider and the plan certified that the injured

worker had reasonable vocational goals and reemployment and wage

potential with rehabilitation and that the plan is designed to

accomplish those, taking into consideration the requirements of §

39-71-2001(l) (c), MCA (1993), then it seems to me, that at a

minimum, the statutory framework has been honored.

Under § 39-71-2001(l) (d), MCA (1993), if the injured worker

and the insurer agree with the rehabilitation plan, then the plan

is filed with the department of labor and benefits are provided in

accordance with the plan. If either the insurer or the claimant

disagree with the rehabilitation plan, the insurer or claimant then

has an avenue of review through mediation, the Workers'

Compensation Court and, ultimately, this Court.

This interpretation of the statutory framework is consistent

with our recent decision in State ex rel. Cobbs v. Montana

Department of Social and Rehabilitation Services (Mont. 1995), 52

St.Rep. 1166, 1169, wherein we noted that the rehabilitation plan

under s 39-71-2001, MCA (1993), is "developed by the insurer,

14
claimant and rehabilitation provider and filed with the Department

of Labor." We also stated that "Ielntitlement to rehabilitation

benefits sought pursuant to 5 39-7-2001, MCA (1993), is determined

by the worker, the insurer, the private 'rehabilitation provider,'

the Department of Labor and, in the event of a dispute, the

workers' compensation mediator and the Workers' Compensation

Court." Cobbs, 52 St.Rep. at 1169.

In the instant case, had the statutory framework been

followed, a rehabilitation plan might have been developed with and

for Reeves that would have satisfied both the insurer and the

claimant, or if not both, at least the court, on review. As it is,

the statutes were ignored and Reeves has been denied rehabilitation

benefits altogether. A no less satisfactory consequence of this

case is that our opinion (which is only the second interpreting

this section of the code), seemingly approves of the procedures

used here--procedures that do

statutory scheme enacted by the legisl

Justice Karla M. Gray concurs in the foregoing special concurrence.

P15
Justice Terry N. Trieweiler dissenting.

I dissent from the majority opinion.

By affirming the Workers' Compensation Court, the majority has

placed an impossible burden on injured workers who wish to restore

some of their lost earning capacity by availing themselves of the

rehabilitation benefits provided for in the Workers' Compensation

Act.

Joan Reeves proved that her earning capacity had been

substantially reduced due to a job-related disability; her earning

capacity could be substantially improved by furthering her

education; and she was qualified by intellect, training, and

disposition for the program in which she sought to enroll. These

facts are uncontroverted and are sufficient to satisfy the

requirements of § 39-71-2001, MCA (1993).

Instead of applying the simple terms of the rehabilitation

statute, the Workers' Compensation Court, and the majority of this

Court, have required that before completing a two-year graduate

program, the claimant know exactly what kind of counseling she is

going to do, what kind of market there is for that counseling, and

how she would overcome professional obstacles that she is not even

in a position to anticipate. What the court has done is no

different than concluding that it is unreasonable for someone to

enter law school unless they first know what their specialized area

of practice is going to be, how many other people are currently

engaged in that specialized area, and what their marketing strategy

is going to be for competing with already established lawyers.

16
Most lawyers would agree that applying these same requirementsto

their own profession would be absurd. Applying these requirements

to Joan Reeves is no less absurd.

The uncontroverted evidence established the following:

Joan Reeves has a bachelor's degree in home economics with a

family science option. The family science option was recommended

for students intending to obtain a master's degree in family

counseling. She satisfied the requirements for a family science

option because it was always her intention to obtain a master's

degree and become a family counselor.

Joan maintained a "B" average in high school and a "B+"

average in college. Everyone concedes that she is academically and

intellectually qualified to enter and successfully complete a

master's degree program which would qualify her to become a

licensed practical counselor providing marriage and family therapy.

After her graduation from MSU in June 1991, before entering a

master's program, she first went to work to pay off debts that she

had accumulated during college and to save money for her graduate

education. At the time, entry level jobs for which she would have

qualified with her college degree paid from $7.00 to $8.00 per

hour. However, by doing physical labor for her father she was able

to earn $10.00 an hour. She later earned $11.00 an hour as her

starting wage for UPS. At the time of her injury she was earning

$12.82 an hour as a package car driver. Evidence at the trial was

that after two years on the job her wage would have increased to

$18.84 an hour.

17
On January 4, 1994, while working for UPS, Joan sustained a

back injury. As a result of her injury she cannot return to her

job. She has been unable to find employment related to her

education and instead does telemarketing and other part-time work

for the Bozeman Chronicle. Her average hourly wage, including

commissions, is $9.81 an hour.

She explained that her interest in obtaining a master's degree

was based on two factors. First, she stated that she could not

otherwise qualify for the specific type of counseling that she was

interested in. Second, she testified that counselors with a

master's degree earn substantially more than counselors with a

bachelor's degree.

Reeves was not, as the Workers' Compensation Court found,

unrealistically selective about the kind of work she wanted to do

as a counselor. Following cross-examination by the Workers'

Compensation Court Judge, she tried to provide the following

explanation for preferring private practice to agency work:

THE COURT: I understand the kind of people that you want

to counsel; but, in my mind immediately is are those the

kind of people who are going to be coming to marriage

counselors?

THE WITNESS: You made a comment earlier that, you know,

that I assumed that there were just going to be husbands

and wives without kids and stuff. I just wanted to clear

that up. I mean I assume that husbands and wives are

going to come in with kids who probably have drug

problems or are acting out and those sort of things. I

realize there are other types of situations.

My clarification is that I think the difference

being those people are coming to you for help. I mean

they are not people who have been assigned to you by

18
someone else. I mean those are people [who] actually

want help.

In other words, Reeves' innocent statement which has been

blown out of proportion by the Workers' Compensation Court was that

given her choice she would rather counsel people in the private

sector who are interested in solving their problems than people

assigned to her at a government agency who are there simply because

they have to comply with some court or agency directive.

The idea that this person who has not even enrolled in her

master's degree program should somehow be able to anticipate

exactly who her clientele will be or how she will adapt her

education to the realities of the market place is strange to begin

with. Nevertheless, doing her best to respond to the trial judge's

concerns, she later explained during re-examination that in a worst

case scenario if she could not successfully establish a private

practice, but had a master's degree, she could go to work for an

agency earning more than she would earn with a bachelor's degree

and still eventually attempt to work into a private practice.

The testimony of Susan Kern, the rehabilitation counselor

hired by Liberty Mutual, did nothing to dispel the obvious

conclusion that Reeves' vocational rehabilitation proposal was

reasonable.

Kern agreed that Reeves' earning capacity, without further

education, was between $7.00 and $10.73 per hour, but that with a

master's degree her entry level wage for a mental health agency

would be $12.30 per hour.

19
Kern agreed that Reeves was intellectually capable of

completing the master's program. She agreed that with some

employers she would have a greater long-term earning capability

with a master's degree than with a bachelor's degree, and she

agreed that there were differences in the job descriptions for

people with bachelor's degrees, as opposed to master's degrees.

Most critically, Kern, who was retained and paid for by Liberty

Mutual, gave the following testimony:

Q. I asked you in your deposition a question about

whether you had enough information about Joan to form an

opinion as to whether you thought her vocational goal of

getting a master's degree was a reasonable goal for her.

What is your opinion in that regard?

A. I think it's reasonable for her.

Section 39-71-2001, MCA (1993), does not require the

impossible. It simply requires that before a claimant qualifies

for rehabilitation benefits he or she have a partial disability, be

unable to return to the job at which the claimant was injured, and

have a rehabilitation plan, including "reasonable vocational

goals." All of those requirements were satisfied in this case. To

deny Reeves benefits because prior to even entering the graduate

program she was not absolutely certain about the kind of clientele

she would counsel, the feasibility of the type of counseling she

thought she would prefer, or the marketing strategy she would

employ to be successful, suggests a preoccupation on the part of

the trial court with denial of claimant's benefits, rather than an

objective application of the statutory requirement.

20
Although the concurring opinion certainly does not have the

force of precedent, I am also concerned about some of the views

stated therein. I agree that pursuant to the requirements of

§ 39-71-2001, MCA (1993), the insurer has no right to dictate to

the rehabilitation provider what plan is most suitable for a

claimant. I also agree that the insurer has an obligation to act

in good faith when it selects and designates the rehabilitation

provider and when it charges the provider with its responsibility.

However, to assume, as the concurring opinion does, that

insurers will not exert total and complete control, even if

indirectly, over the rehabilitation providers which it retains at

its expense, ignores reality.

Under the current statutory scheme there is little opportunity

for, and no funding with which injured workers can consistently

retain rehabilitation providers. Insurers and employers are the

only parties who can consistently hire them. Any private

rehabilitation provider currently operating in this state knows

that it cannot long do business without a satisfied clientele of

insurers. Therefore, if the only plans the Workers' Compensation

Court can cqnsider are those submitted by the rehabilitation

counselor hired by the insurer, no claimant will ever qualify for

rehabilitation benefits and the statutory framework which

encourages rehabilitation in exchange for a reduction in partial

disability benefits would be rendered meaningless. If this Court

is going to apply § 39-71-2001, MCA (19931, as narrowly as

suggested by the concurring opinion, it might as well interpret the

21
statute to mean "an injured worker is eligible for rehabilitation

benefits if his or her insurer decides that it would like to pay an

extra 104 weeks of benefits."

I would conclude that whenever an insurer, or the

rehabilitation provider that it hires and pays for, arbitrarily and

unreasonably refuses to consider rehabilitation for an injured

worker, that worker must necessarily have the option of submitting

his or her own rehabilitation plan to the Workers' Compensation

court for consideration of whether it meets the statutory

requirements of 5 39-71-2001, MCA (1993). To hold otherwise would

give the insurer complete and total control over the eligibility of

injured workers for rehabilitation benefits.

Having made this observation, however, I would note that this

issue was not before the Workers' Compensation Court and is not

before this Court because even the insurer concedes in its

appellate brief that under the circumstances it would be

unreasonable to argue that the court should not have considered

claimant's proposed rehabilitation plan. At page 18 of its brief

the insurer states:

Additionally, Liberty does not claim rehabilitation

benefits are inappropriate because no plan has been filed

with the Department. It would be unreasonable for a

carrier to defend on this basis when the lack of a

rehabilitation plan results from the insurer having

instructed the rehabilitation provider to perform an

employability assessment and then, after the assessment

reveals the claimant can return to work without

retraining, authorizes only job placement services.

Joan Reeves proposed the most reasonable rehabilitation plan

possible considering her age, education, training, work history,

22
physical limitations, and vocational interests. It was wrong to

frustrate her sincere and legitimate efforts to improve her

vocational future based on the unreasonable and impossible demands

of the trial court.

For these reasons I dissent from the majority opinion and

disagree in part with the concurring opinion.

Judtice

Justice William E. Hunt, Sr., joins in the foregoing dissenting

opinion.

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Justice W. William Leaphart, dissenting.

I dissent. In my opinion, Reeves' plan of obtaining a

Master's Degree in counseling was both reasonable and attainable.

Although the Court had concerns about the prospects of her success

at counseling in the private sector, the record indicates that

Reeves would still have the option of seeking employment as a

counselor with a governmental agency. With a Master's Degree,

Reeves will, either in the public or private sector, demand a

higher salary than with her Bachelor's Degree.

Justic L

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