STATE OF MAINE
Workers’ Compensation Board
Office of Medical/Rehabilitation Services
140 Canal Street
Lewiston, Maine 04240

Michael Thibodeau
EMPLOYEE

Spence & Mathews Agency
EMPLOYER

Maine Employers’ Mutual Insurance Company
INSURER

Dates of Injury: February 10, 1997 (lumbar spine: laminectomy & arthrodesis)

1. Findings from a hearing that was held on January 19, 1999 are contained in a summary dated February 17, 1999. From that hearing, parties were to reconvene in 60 days after medical evidence could be collected that supported either returning to work for the employer or perhaps a retraining direction for the employee to become a teacher. However, parties did not reconvene. Instead, the employee received further medical treatment and medical evidence was compiled by each side that each side believes only substantiates its arguments for or against retraining for the employee.

The employee is still interested in earning a baccalaureate degree in secondary education to teach history. He believes that he must not return to insurance sales and customer service due to the inordinate amount of time spent sitting to do this work. Also, ergonomic office equipment and voice-activated software (VAS) will not support his return to work in this setting. A good ergonomically correct chair does not eliminate the sitting and he is unable to input data through VAS while he talks to his customers, two tasks that are simultaneous in this work environment, even if he could sit and stand at will.

2. The employee continues to complain of severe low back pain that sometimes requires him to lie down for hours at a time. Medical reports from several practitioners speak to the chronic pain, but offer no solutions except suggesting the employee focus on a goal and not on his pain. The installation of an intra-thecal morphine pump has been suggested, too, as a last resort for pain management, but the employee has declined this procedure. He takes oral narcotic pain medication and an anti-depressant. Some dispute continues to exist around the employee’s level of fitness to engage in any activities whether work or schooling. The employer argues that the employee could certainly work in insurance sales if he can go to school full-time, both tasks being essentially sedentary. The issue of whether the employee will actually attend full-time is not clear, although full-time is cited in Marie Gleason’s report of February 2000 after two courses this summer. His doctors, especially his surgeon (Dr. Barth), have left this dispute up in the air by deferring to the employee’s expression of pain and his sense of capacity. Dr. John Pier probably summarizes everyone’s disappointment and frustration in his report of August 23, 1999:

I have never doubted his pain. I have only wished for him to trial alternate strategies to address his disability. I have always hoped that he could be functional despite his pain. Unfortunately, this has not occurred…. although I give him a lot of credit for getting back to school. p.5

3. The employee has devised his own plan that calls for two and a half years of schooling (two years of classes and a half year of student teaching) at the University of New England (UNE). The employee prefers this university as opposed to the University of Southern Maine (USM) because its requirements are less stringent. However, the costs are at least twice as much to attend UNE than USM and it is not know how much of these costs can be reduced through grants and scholarships.

4. No order from the board has been issued to evaluate the employee’s circumstances. Instead, the employee has received the services of two providers, one Susan McCarron whom the employee paid and the other Marie Gleason who was paid by "State Voc. Rehab.", the Maine Department of Labor’s Division of Vocational Services. Ms. McCarron performed an initial evaluation recommending medical management and maintenance of a relationship with the employer of injury. By the time Ms. Gleason was on the case in November 1999, parties attempted a return to work with the employer, but that failed due to the incompatibility of VAS with the insurance office’s software. Ms. Gleason supports the retraining direction to become a teacher through the University of New England and essentially outlines a plan in her report of February 2000. She projects annually earnings to be between $23,000 and $25,000. The total cost of the plan is $32,763.45 less any financial aid.

Discussion

The suggested plan through UNE is at least twice as expensive as if it were at USM. Both universities prepare students to be teachers, presumably equally well, so it is hard to support the plan at UNE unless substantial financial aid is part of the equation. Some savings are available through UNE however because they may accept more credit hours than USM, but this consideration is minor. UNE is somewhat closer to the employee’s home so class attendance will be easier with less driving. The bigger issue is the total cost and its comparative efficacy for success into an occupation that will pay the employee a lot less than his average weekly wage ($610.16 or $31,728.32 per year; Employer’s Exhibit #2]; that is a shortfall of about $8,000.00 per year. Of course, $23,000.00 is a lot better than zero right now.

Moreover, the employer believes that the chronic pain is as much a matter of claim manipulation as it is controlling for vocational choice. It cannot accept the fact that insurance sales agent work is not suitable given the severe restrictions. However, the record has sufficient evidence in it to persuade the board that this pain is real and debilitating and essentially removes the employee from that kind of work.

Be that as it may, an equally vexing question is whether teaching is appropriate just because the employee says that it is. Given the employee’s expressions of pain and incapacity, he still wants support from someone to pursue this degree with no guarantees from him that he will work afterward. Parties could be in this same predicament after the degree is earned because the chronic pain is the controlling factor. Still, Dr. Pier applauds the employee’s effort to focus on a goal and Marie Gleason believes the goal is reasonable and attainable.

Moreover, if parties dwell upon the negative psychological reasons for not implementing this plan, nothing will happen and the employee stays on compensation forever given the 25% permanent impairment rating. Spinal fusions have a way of burning themselves out after several years. Therefore, there is no reason to believe that the employee will remain as debilitated as he is right now. If the board does not step in and move this case along, the employee will not readily change his circumstances and the employer will have no firm grounds for filing a petition for review later. At least, in two and a half years, the employee will hold a degree that is marketable and positive for asserting a legitimate reduction in compensation.

Decision

The board needs more information regarding specific costs (cost per credit hour, total number of credit hours needed to earn the degree, financial aid entitlement) before approving this plan. The employee needs to ascertain from UNE how many credits it will accept for transfer and what they will award for financial aid. The board also needs to know what fees are chargeable and how much; it also needs a projection of costs for books. Once these costs are known, they will be compared with the costs for an identical program through USM, so parties can know whether the program at UNE is actually necessary and just as cost effective. Attached is a form for comparative purposes.

The board will not buy a computer for the employee; that will be his responsibility because computers are so much a part of everyone’s home today and they are used for so much personal, private business, too. The employee might choose to take a student loan to purchase a computer if he wishes. If the Division of Vocational Services wants to participate in these costs to reduce the Employment Rehabilitation Fund’s exposure and ultimately that of the employer, then it may. The employee can negotiate that participation.

 So ordered.
Dated in Lewiston
May 4, 2000

Workers’ Compensation Board

Mark Wood, Rehabilitation Assistant Administrator

cc: Michael Thibodeau
Ralph Tucker, Esq.
Karen Barter, MEMIC
Marie Gleason

 Michael Thibodeau v. Spence & Mathews

Academic Year 2000-01

Cost per credit hour _____ Cost per credit hour ________

Credit hours needed _____ Credit hours needed ________

Tuition _________________ Tuition _____________________

Books _________________ Books _____________________

Fees __________________ Fees _____________________

Total ___________________ Total _____________________

Tuition _________________ Tuition ____________________

Books _________________ Books ____________________

Fees ________________ Fees ___________________

Total _________________ Total ____________________

Student Teaching 2002

Tuition _________________ Tuition ____________________

Fees _________________ Fees ____________________

Books, if any ____________ Books, if any _______________

Total _________________ Total ____________________

Grand total _____________ Grand total ________________