DECISION AND ORDER ON APPEAL
an appeal from a decision of the Montana Department of Labor
and Industry (DLI), which is set forth in Findings Of
Fact; Conclusions Of Law; Order entered by Gordon
Bruce, a DLI hearing examiner. The DLI decision determined
that appellant, Joyce Ridgeway Sather (Sather), is capable of
returning to work as a motel clerk. Sather appeals.
injured her back on October 30, 1990, while employed as a dry
cleaner. (Tr. at 6-7, Ex. No. 5.) She underwent back
surgery for a herniated lumbar disc in March of 1991. On
September 13, 1991, Dr. Donald See performed an independent
medical evaluation and concluded that Sather had reached
maximum medical recovery. Sather's treating physician,
Dr. J.V. Matthews, restricted her to occasional lifting and
carrying up to a maximum of 20-25 pounds and more frequent
lifting/carrying up to a maximum of 10-15 pounds. He also
concluded that Sather could not safely return to her former
job as a dry cleaner.
was referred to a rehabilitation provider pursuant to the
provisions of chapter 71, part 10 of Title 71, MCA (1989).
The rehabilitation provider identified three jobs as suited
to Sather's education and skills. Dr. Matthews approved
all three jobs.
rehabilitation panel was then empaneled pursuant to section
39-71-1015, 1016, MCA. The panel concluded that the first
appropriate return to work option for Sather was option (c)
of section 39-71-1012, MCA, which is "return to a
related occupation suited to the claimant's education and
marketable skills." The panel identified the position of
motel clerk as suited to claimant's education and
marketable skills. The position was medically approved by Dr.
Matthews and the panel verified that it was typically
available "within the claimant's local and/or state
wide job pool." (Ex. No. 11.) On May 21, 1992,
the DLI issued a Final Order of Determination designating
option (c) as the appropriate rehabilitation option. (Ex.
then requested a hearing. The hearing was held on April 13,
1993. A decision affirming the panel report was issued on
June 10, 1993. On June 25, 1993 Sather filed a notice of
appeal with this Court, styled Claimant's Petition for
Appeal to the Worker's [Sic] Compensation Judge.
contends that she does not possess the requisite skills to
work as a motel clerk and that she should be retrained.
39-71-1018, MCA, provides for an appeal to the Workers'
Compensation Court from the DLI's final order. Review of
that order is governed by section 2-4-704(2), MCA, which
provides in relevant part:
court may not substitute its judgement for that of the agency
as to the weight of the evidence on questions of fact. The
court may affirm the decision of the agency or remand the
case for further proceedings. The court may reverse or modify
the decision if substantial rights of the appellant have been
administrative findings, inferences, ...