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Eastman v. Insurance Co.8/10/2000
o the Workers' Compensation Court, just as Eastman urges should be done when the rehabilitation provider does not prepare a rehabilitation plan. The parties operated under the defacto rehabilitation plan formulated by Eastman-the vo-tech program-and the court reviewed that plan as if it had been a plan prepared by a rehabilitation provider. Upon reviewing Eastman's rehabilitation plan, the court found the plan unreasonable because Eastman was physically unqualified for HVAC service and because no job market existed in Billings for HVAC sales. We decline Eastman's suggestion that we adopt the Leastman decision, a Workers' Compensation Court decision that was not appealed and was in fact followed in this case. Here, the Workers' Compensation Court engaged in judicial review of Eastman's rehabilitation plan despite the fact that the rehabilitation provider did not formulate a plan.
We turn next to the issue of whether the Workers' Compensation Court's determination that Eastman's rehabilitation plan was not reasonable was supported by substantial and credible evidence. Eastman contends that it was not and that he had proven at trial that he had a reasonable vocational goal at the time he started the vo-tech program, that he proved that his earning capacity had been substantially reduced due to a job -related disability, that his earning capacity could be substantially improved by furthering his education, and that he was qualified by training for the program he enrolled in. North America counters that substantial and credible evidence was presented demonstrating that Eastman's plan was unreasonable and would not result in reemployment and wage potential, and that Eastman's insistence on finishing the vo-tech program was unreasonable in light of the Workers' Compensation Court's disapproval of the program.
Section 39-71-2001(1)(c), MCA, states in relevant part that a rehabilitation plan must show that "the injured worker has reasonable vocational goals and a reemployment and wage potential with rehabilitation." When his physician disapproved the HVAC service position, Eastman changed his plan to HVAC sales even though he had no sales experience, no concept of the labor market, and the vo-tech program did not include any sales component. While Eastman's witness Walter Ware, a vo-tech instructor, agreed with Foster that approximately twenty percent of the vo-tech program's graduates found jobs in sales positions, he also testified that he was not aware of anyone with Eastman's physical restrictions working in a sales position and that the vo-tech currently had no listings for HVAC sales on its job board. Eastman also admitted that he was not aware of anyone with his physical restrictions working in HVAC sales. A review of the transcript shows that North America presented several industry witnesses who testified that HVAC sales positions were unavailable in Billings and that HVAC service jobs required lifting beyond Eastman's 50-pound limitation.
Eastman also contends that the Workers' Compensation Court's finding was not supported by substantial and credible evidence because he was working within his physical restrictions at the Appliance Shack and that the venture had been successful for him. The Workers' Compensation Court found that even if Eastman was working within his physical restrictions at the Appliance Shack, the vo-tech program was not a reasonable rehabilitation plan. We agree. Eastman had the training to repair major appliances from his year of vo-tech training in 1981 and testified that he had done such work in the past. He was not performing HVAC repair at the Appliance Shack. The record shows that Eastman could have opened the Appliance Shack without the vo-tech program, par
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