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Warren v. Oberlin Color Press5/15/1998
Mandate Issued: July 24, 1998
RELEASE FOR PUBLICATION BY ORDER OF THE COURT OF CIVIL APPEALS
BRIAN WARREN, Petitioner,
v.
OBERLIN COLOR PRESS, NATIONAL UNION FIRE INSURANCE, and THE WORKERS' COMPENSATION COURT, Respondents.
PROCEEDING TO REVIEW AN ORDER OF A THREE-JUDGE JUDGES OF THE WORKER'S COMPENSATION COURT
SUSTAINED
Before the Court is a review proceeding brought from an order denying vocational rehabilitation benefits to the Claimant, Brian Warren. At the time of injury, Claimant worked as a laborer moving books off the printing press and stacking them on pallets. While doing this job, he injured his back. That injury necessitated surgery, which rendered him unable to do his previous laborer's duties. Claimant was offered a position at Respondent's place of business which he characterized as entailing certain supervisory duties, which he did not feel comfortable with, and thus did not accept. The trial Judge inquired if claimant would take a job with Respondent, Oberlin, if offered one which did not contain supervisory duties, and Claimant's equivocal response was that he would have to think about it. He requested rehabilitative services to train him in the area of computer drafting or electronics.
Claimant produced medical evaluations stating that he was in need of vocational rehabilitation. Respondent similarly produced a report stating Claimant was not in need of rehabilitative services. The trial Judge denied the requested rehabilitative evaluation. In the order of denial the trial judge found that Claimant is capable of performing a number of jobs within his physical restrictions and that Employer offered Claimant a job within his restrictions which Claimant turned down. Whether or not there was such an offer was controverted at trial, but there is competent evidence to support such a finding.
The first paragraph of the order denies Claimant's request for a rehabilitation evaluation. Title 85 Supp. 1994 O.S. ยง16 A., in effect at the time of this injury, specifically requires a finding of need of rehabilitation to be made by an expert. Contrary to the 1990 version of the same statute, the court is not now required to refer the employee for evaluation of the need and practicability of rehabilitation upon the making of a simple request. The statute states in pertinent part:
... If rehabilitation services are not voluntarily offered by the employer and accepted by the employee, the Judge of the Court may on his own motion, or if requested by a party may, after affording all parties an opportunity to be heard, refer the employee to a qualified physician or facility for evaluation of the practicability of, need for and kind of rehabilitation services or training necessary and appropriate in order to restore the employee to gainful employment. ... (e.a.)
The 1990 version of the same statute gives a mandatory command that the court must refer the Claimant for rehabilitative evaluation, if requested, as follows:
... If rehabilitation services are not voluntarily offered by the employer and accepted by the employee, the Judge of the Court may on his own motion, or if requested by a party shall, after affording all parties an opportunity to be heard, refer the employee to a qualified physician or facility for evaluation of the practicability of, need for and kind of rehabilitation services or training necessary and appropriate in order to restore the employee to gainful employment. ... (e.a.)
In the case of Collard v. Coldiron Line Trucking, 1987 OK CIV APP 52, 740 P.2d 1209, the former statute, quoted immediately above, was
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