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McAdam v. United Parcel Service

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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	2000 ME 5
Docket:	WCB-98-690
Argued:	November 2, 1999
Decided:	January 12, 2000

Panel:WATHEN, C.J., and CLIFFORD, RUDMAN, DANA, SAUFLEY, ALEXANDER, and
CALKINS, JJ.




GARY F. McADAM v. UNITED PARCEL SERVICE and HELMSMAN MANAGEMENT SERVICES, INC.


DANA, J.

	[¶1]  United Parcel Service (UPS) appeals from a decision of the
Workers' Compensation Board ordering the implementation of a vocational
rehabilitation plan for Gary F. McAdam and requiring UPS to pay for its
development.  Because 39-A M.R.S.A. § 217(2) (Pamph. 1999) provides that
decisions ordering the implementation of rehabilitation plans are final, we
dismiss that portion of the appeal.  Because we conclude that the Board's
decision to assess the costs of developing the rehabilitation plan against the
employer was not authorized by the Legislature, we vacate that portion of the
Board's decision.
	[¶2]  In 1990 McAdam suffered a work-related injury while employed
by UPS.  He obtained post-injury employment as a school bus driver. 
Notwithstanding his post-injury employment, McAdam applied for
rehabilitation services in 1997.  In 1998 the Board's Rehabilitation Assistant
Administrator granted the employee's application{1} and referred the matter
to a vocational rehabilitation counselor pursuant to 39-A M.R.S.A. § 217(1). 
The counselor evaluated the employee's suitability for vocational
rehabilitation and developed a rehabilitation plan pursuant to subsection
217(1).
	[¶3]  After an informal hearing, the Board's Rehabilitation Assistant
Administrator issued a decision ordering the implementation of the plan for
an initial 52 weeks pursuant to subsection 217(2).  The plan calls for
McAdam, following some prerequisite courses, to attend a two-year program
at Kennebec Valley Technical College to become a Physical Therapy
Assistant.  In addition, the Board ordered UPS to pay the rehabilitation
counselor's fee for developing the plan.  We granted UPS's petition for
appellate review pursuant to 39-A M.R.S.A. § 322 (Pamph. 1999).
	[¶4]  Section 217 provides:
§ 217.  Employment rehabilitation

	When as a result of injury the employee is unable to
perform work for which the employee has previous training or
experience, the employee is entitled to such employment
rehabilitation services, including retraining and job placement,
as reasonably necessary to restore the employee to suitable
employment.

	1.	Services.  If employment rehabilitation services are
not voluntarily offered and accepted, the board on its own
motion or upon application of the employee, carrier or
employer, after affording the parties an opportunity to be heard,
may refer the employee to a board-approved facility for
evaluation of the need for and kind of service, treatment or
training necessary and appropriate to return the employee to
suitable employment.

	2.	Plan ordered.  Upon receipt of an evaluation report
pursuant to subsection 1, if the board finds that the proposed
plan complies with this Act and the implementation of the
proposed plan is likely to return the injured employee to
suitable employment at a reasonable cost, it may order the
implementation of the plan.  Implementation costs of a plan
ordered under this subsection must be paid from the
Employment Rehabilitation Fund as provided in section 355,
subsection 7.  The board's determination under this subsection
is final.

	3.	Order of implementation costs recovery.  If an
injured employee returns to suitable employment after
completing a rehabilitation plan ordered under subsection 2, the
board shall order the employer who refused to agree to
implement the plan to pay reimbursement to the Employment
Rehabilitation Fund as provided in section 355, subsection 7.

	4.	Additional payments.  The board may order that any
employee participating in employment rehabilitation receive
additional payments for transportation or any extra and
necessary expenses during the period and arising out of the
employee's program of employment rehabilitation.

	5.	Limitation. Employment rehabilitation training,
treatment or service may not extend for a period of more than
52 weeks except in cases when, by special order, the board
extends the period up to an additional 52 weeks.     

	6.	Loss of or reduction in benefits.  If an employee
unjustifiably refuses to accept rehabilitation pursuant to an order
of the board, the board shall order a loss or reduction of
compensation in an amount determined by the board for each
week of the period of refusal, except for specific compensation
payable under section 212, subsection 3.

	7.	Hearing. If a dispute arises between the parties
concerning application of any of the provisions of subsection 1 to
6, any of the parties may apply for a hearing before the board.
39-A M.R.S.A. § 217 (emphasis added).  
	[¶5]  UPS contends that, in light of the employee's post-injury
employment and other factors relating to his employability, it was error for
the Board to conclude that the plan is "reasonably necessary to restore the
employee to suitable employment" pursuant to 39-A M.R.S.A. § 217.  UPS
contends further that the Board lacked statutory authority to order the
implementation of a plan that will necessarily exceed 52 weeks pursuant to
subsection 217(4).  McAdam contends, however, that the final sentence of
subsection 2 providing that "[t]he board's determination under this
subsection is final" precludes an appeal at this stage with respect to matters
decided pursuant to subsection 2.  UPS contends that the word "final" is
intended to clarify that a decision pursuant to subsection 2 is a "final
judgment" and therefore ripe for appellate review.
	[¶6]  We agree with the employee that the intent of the word "final" is
to prevent an immediate appeal from a Board's decision to implement a
vocational rehabilitation plan.  Our conclusion is supported by the legislative
scheme.  Unlike most workers' compensation benefits that are initially the
responsibility of the employer, e.g., incapacity and medical benefits, the
initial cost of implementing a vocational rehabilitation plan, in the absence
of a voluntary agreement, is borne by the Employment Rehabilitation Fund. 
Subsection 355(3) provides:
7.	Plan implementation costs; payment; reimbursement.  The
actual and direct costs of implementing plans ordered by the
board under section 217, subsection 2 must be paid from the
fund.  Payments must be made directly to the rehabilitation
providers or other persons who provide services under the plan. 
Upon an order of recovery of plan implementation costs under
section 217, subsection 3, the board shall assess the employer
who refused to agree to implement the plan under section 217
an amount equal to 180% of the costs paid from the fund under
this subsection.  An employer may appeal the imposition or
amount of this assessment to the board.  The employee may not
be a party to this appeal.
39-A M.R.S.A. § 355(7) (Pamph. 1999).  The apparent purpose of this unique
payment procedure is to encourage prompt delivery of vocational
rehabilitation services and to permit an appeal only if the employer is
ordered to pay 180% of the costs following completion of the rehabilitation
plan.
	[¶7]  Our interpretation is also supported by the predecessor statute,
former 39 M.R.S.A. § 85(2-A) (Supp. 1991), repealed by P.L. 1991, ch. 885,
§ A-7.  Like section 217(2), former subsection 85(2-A) addresses the
procedures for assessing costs of a "rehabilitation plan."  Paragraph
85(2-A)(D) provided:
The administrator's determination under this subsection is final. 
Neither party may appeal the determination of the administrator
under this subsection.  Notwithstanding Title 5, section 8003,
the Maine Administrative Procedure Act, Title 5, chapter 375,
does not apply to determinations made by the administrator
under this subsection.
39 M.R.S.A. § 85(2-A)(D) repealed by P.L. 1991, ch. 885, § A-7.  In light of
this statutory history, we conclude that the Legislature intended the word
"final" in subsection 217(7) to preclude an appeal at this stage.{2}
	[¶8]  UPS also challenges the Board's decision to require it to pay the
costs of developing the rehabilitation plan.  If the Board's decision to assess
costs against the employer is a decision pursuant to subsection 217(2),
however, the decision is "final" and may not be appealed at this stage in the
proceeding.
	[¶9]  By its plain language, the Board's authority pursuant to subsection
2 is limited to a determination whether to order the implementation of a
rehabilitation plan.  Indeed, the statute is silent with respect to the payment
of costs for the "evaluation of the need for any kind of service, treatment or
training necessary and appropriate to return the employee to suitable
employment" pursuant to subsection 217(1).  If the Board has any statutory
authority to order payment of the costs of developing a plan, it must be
derived from subsection 355(7) as part of the "actual and direct costs" of
the implementation of the plan.  Because there is nothing in the Act to
suggest that the employer is responsible for paying for any portion of either
the development or the future implementation of the plan at this stage in
the proceeding, we vacate that portion of the Board's decision ordering
payment of development costs.
	The entry is:
The appeal from the decision of the Workers'
Compensation Board ordering the
implementation of a rehabilitation plan is
dismissed.

The decision of the Workers' Compensation
Board ordering the employer to pay for the
development of the rehabilitation plan is
vacated. Remanded to the Workers'
Compensation Board for further proceedings
consistent with this opinion.

Attorney for employee: James J. MacAdam, Esq., (orally) McTeague, Higbee, MacAdam, Case, Cohen & Whitney, P.A. P O Box 5000 Topsham, ME 04086-5000 Attorney for employer: John P. Flynn III, Esq., (orally) Troubh, Heisler & Piampiano, P.A. P O Box 9711 Portland, ME 04104-5011
FOOTNOTES******************************** {1} . The Board has delegated authority to decide disputes concerning an employee's entitlement to rehabilitation services to the Assistant Rehabilitation Administrator. Me. W.C.B. Rule ch. 6, § 1. {2} . In the employee's response to the employer's petition for appellate review, McAdam contended that UPS failed to exhaust its administrative right to appeal pursuant to subsection 217(7). Because the Board has delegated authority to the Rehabilitation Assistant Administrator to decide rehabilitation matters, and because there are no procedures for appealing to the board pursuant to subsection 217(7), we do not reach the subsection 217(7) issue.