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Smith v. Fleming Food Co.5/14/1998
Opinion Services
Decided: April 14, 1998
Court of Appeals of Oklahoma, Division No. 3
VACATED AND REMANDED
Petitioner, Billy Wayne Smith (Claimant), seeks review of the trial court's order denying his request for additional vocational retraining. Claimant injured his knee while working as an "order selector" in the warehouse of Respondent, Fleming Food Company (Employer). On February 5, 1997, the trial court awarded Claimant permanent partial disability and ordered Employer to provide Claimant with vocational training at Metro Tech in aviation maintenance technology, which was an 18-month program. On August 5, 1997, Claimant filed a Form 13 seeking a hearing to change his vocational rehabilitation from aviation maintenance to small engine repair. He continued to attend Metro Tech until October 1997, when the school notified him Employer's insurer would no longer fund the program "due to academic progress."
At hearing on November 18, 1997, Claimant testified he did not receive approval from the Workers' Compensation Court to enroll in Metro Tech until a week after classes started. As a result, he was unable to attend a math refresher course offered during the two weeks prior to the beginning of classes. He said he "walked into the middle of algebra and trigonometry, and I had never seen it before in my life. And I had a test on that first day, and I couldn't even take the test, because I didn't know anything about it." Under cross-examination, he agreed his tests reflected a sixth-to seventh-grade math level, and he had a lot of trouble with the math required for the aviation maintenance program. Employer offered into evidence Claimant's grade reports, reflecting failing grades in eight of thirteen courses. Employer also submitted the reports of a vocational rehabilitation expert, who stated,
It is my opinion that Mr. Smith was not adequately advised with regards to this program. Based on these [pre-admission test] scores, it is apparent that he would not be successful in an area such as "Aviation Math, Physics, and Aerodynamics." In addition, a strong math background is generally required or recommended in programs involving electronics.
In summary, Mr. Smith will not complete this program in 18 months. He already needs to repeat 6 of 11 sections. I do not feel this is an appropriate program, based on his pre-admission test scores and his current scores in the program. Mr. Smith has had excellent attendance, so this is apparently not a factor.
Employer's counsel stated Employer had paid $1,096.70 for tools, $350.00 for books, and $3,180.70 for mileage, and owed $2,900.00 for tuition for Claimant's program.
Claimant testified he wanted to change to a program in small engine repair at Mid-Del Vocational Technical School (Mid-Del). He said Mid-Del was approximately ten miles from his home, whereas Metro Tech was thirty-two miles. The program would take one year, which was less than the time it would have taken him to finish the program at Metro Tech. The tuition would be $700.00 for the entire course, far less than the remaining tuition for the aviation maintenance program. Claimant said he would be able to use the tools already purchased for the small engine repair course.
The trial court ruled,
THAT respondent provided vocational retraining to the claimant in aviation maintenance, which the claimant did not successfully complete.
THAT respondent has discharged its obligation with regard to vocational retraining to the claimant (respondent is obligated to pay in excess of $7,500.00 as a result).
THAT claimant's request for furt
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