                               NO.     95-317

           IN THE SUPREME COURT OF THE STATE OF MONTANA
                                     1995



JOAN REEVES,
          Petitioner and Appellant,


LIBERTY MUTUAL FIRE
INSURANCE COMPANY,
          Respondent   and   Insurer    for
UNITED PARCEL SERVICE,

          Employer.



APPEAL FROM:   The Workers Compensation Court of
               the State of Montana,
               The Honorable Mike McCarter, Judge presiding


COUNSEL OF RECORD:
          For Appellant:
               Michael P. Sand and Julianne C. Burkhardt,
               Sand Law Offices, Bozeman, Montana
          For Respondent:
                Larry W. Jones, Missoula, Montana


                              Submitted on Briefs:       November 16, 1995
                                                Decided: February 12, 1996
Filed:
Chief Justice J. A. Turnage delivered the Opinion of the Court.

        Joan Reeves appeals a decision of the Workers' Compensation

Court denying her request for rehabilitation benefits to permit her

to pursue a master's degree in counseling.              We affirm.

        The sole issue raised is whether Reeves is eligible for a

rehabilitation plan pursuant to § 39-71-2001, MCA (1993).                    There-

fore we do not address the important issue discussed in the

concurring    opinion.

        Joan Reeves injured her back in January 1994 while employed as

a driver for United Parcel Service             (UPS).        After she reached

maximum   medical healing,       she was restricted to work with medium

physical demands, preventing her from returning to her job at UPS.

She settled her workers' compensation claim for permanent partial

disability in August 1994, specifically            leaving    open    her   claim   for

rehabilitation benefits pursuant to 5 39-71-2001, MCA (1993).

        Reeves subsequently proposed a rehabilitation plan to UPS's

insurer,    Liberty    Mutual   Fire   Insurance   Company,    under     which      she

would pursue a two-year program leading to a master’s degree in

counseling.     Liberty Mutual rejected the proposal.                  Reeves       then

petitioned the Workers' Compensation Court for a hearing on whether

she was entitled to rehabilitation benefits to pursue her plan.

        The Workers'     Compensation Court held a hearing on May 31,

1995,    after which it denied Reeves'         request       for     rehabilitation

benefits.      The court ruled that Reeves' proposed plan was not

reasonable because she did not establish a reasonable expectation




                                         2
that the plan would improve her position in the job market.                Reeves
appeals.



     Is Reeves eligible for a rehabilitation plan pursuant to § 39-

71-2001, MCA (1993)?

      Section 39-71-2001(l), MCA (1993), provides:

     Rehabilitation   benefits.    (1)  An injured worker is
     eligible for rehabilitation benefits if:
           (a)    the injury results in permanent partial
     disability or permanent total disability as defined in
     39-71-116;
           (b)  a physician certifies that the injured worker
     is physically unable to work at the job the worker held
     at the time of the injury;
           (c)  a rehabilitation plan completed by a rehabili-
     tation provider and designated by the insurer certifies
     that the injured worker has reasonable vocational goals
     and a reemployment and wage potential with rehabilita-
     tion. The plan must take into consideration the worker's
     age, education, training, work history, residual physical
     capacities, and vocational interests.
           Cd)   a rehabilitation plan between the injured
     worker and the insurer is filed with the department. If
     the plan calls for the expenditure of funds under 39-71-
     1004, the department shall authorize the department of
     social and rehabilitation services to use the funds.

We   previously interpreted and applied this statute in State of

Montana ex rel. Cobbs v. Montana Department of Social and Rehabili-

tation Services (Mont. 1995), ~ P.2d ~,                    52 St.Rep.      1166

However,    that case did not involve the issue here presented.

     Liberty Mutual concedes that Reeves has met the requirements

of subsections (1) (a) and        (b) above.       However,      Liberty   Mutual

refused to participate in documenting Reeves' plan, instead merely

assigning    a   rehabilitation   counselor   to   offer   her    job   placement

assistance.      Liberty Mutual did not designate Reeves' rehabilita-

tion plan as a plan representing "reasonable vocational goals and
                                      3
a reemployment and wage potential with rehabilitation," pursuant to
subsection (1) (cl, above.       As a result, no plan was filed with the

department pursuant to subsection (1) (d) above.

       Reeves contends that Liberty Mutual admitted that she would

earn $32,000 per year as a licensed practical counselor in private

practice.        This    contention is based upon a proposed finding

submitted to the Workers'           Compensation   Court   by   Liberty   Mutual:
"The Claimant plans, if she receives her master's degree, to work

as a licensed practical counselor earning approximately $~Z,OOO.OO

a year counseling clients in private practice."

       Reeves'    contention   is    without   merit.      A statement of an

opposing party's plan does not equate to a statement of belief in

the merits of the plan.         The statement of Reeves' plan was not a

concession that Reeves would actually earn the amount she planned

to   earn.

       The Workers' Compensation Court heard evidence that, prior to

her employment with UPS, Reeves earned a bachelor's degree in home

economics with a family science option and that she held a long-

term goal of obtaining a master's degree in counseling.              Reeves had

been working at UPS to save money to return to college to continue

her schooling.          She did not utiiize her undergraduate degree to

work in the field of social services for several reasons.

       First,    she could earn more money as a driver for UPS.           Reeves'

time-of-injury earnings with UPS were $12.82 per hour.                    Average

wages for the social work/counseling field with a bachelor's degree

were $9.62 per hour.


                                         4
     Second, Reeves did not wish to work with the type of clientele
with whom she would have to work,     with only an undergraduate
degree.   In her own words:

     THE COURT:    [Your] degree is with the family services
     options and you are interested in family counseling. Why
     haven't you looked for jobs in the family services area?

     THE WITNESS: Because those jobs--the salaries for those
     jobs are--I guess basically that is not where I want to
     be.  I've always wanted to be in family practice. ?'here
     is a whole different clientele between entry-level jobs
     with my degree and the clientele that I would be working
     with as a counselor.



     Q. What I would like you to do, Joan, is maybe explain
     for the judge the difference in the type of work that you
     would do with the bachelor's degree that you presently
     hold as opposed to the type of work you would expect to
     do with a master's degree.

     A. Okay.    Let's take an example that maybe I was like a
     social worker.    I don't know that I could be an actual
     social worker, but something in that field.
           Basically, in my opinion, you would be dealing with
     kids,   families who were in deep trouble, financial
     trouble, you know, possibly abuse situations, just some
     real sad case scenarios. That has just never been--you
     know, kids that probably are not being taken care of
     properly and that sort of thing.
           My clientele who I would like to work with are more
     just couples that are having problems, people that are
     coming to you who want to get well, who can get well, who
     have the--who are there because they want to solve the
     problem.
           A lot of these other jobs you can't help people. I
     mean they are in these situations by circumstance. They
     are, you know, due to poverty or some sort of situations,
     I mean in some ways beyond their control and, secondly,
     things that they don't want to change.    I don't care to
     be involved in those situations.
           I choose to be involved in situations where I feel
     like I can more make a difference.      You get kids and
     their parents are abusing them and that sort of thing,
     and you just have no control over that.     Those are not
     situations that I care to be involved with.
           SO marriage and family therapy, people come in who
     want to get well. They are real motivated to get well.
                                 5
        They are paying you for a service and, you know, they
        want to get well.     That's who I want to work with.
        That's who I've always wanted to work with.

        Q. Would the primary difference be the type of individu-
        al that you are working with?

        A.    Yes.

Reeves testified that at the time of the hearing she was earning

$9.81 per hour as a telemarketer and ad salesperson for the Bozeman

Daily    Chronicle      newspaper.     She further testified that, once she

earned her master's degree,            she planned to be self-employed as a

COUIlSelOr.      She stated that her father had offered to provide her

with start-up costs of opening her own office.
        Liberty Mutual concedes that Reeves' rehabilitation plan is

reasonable inasmuch as she has the ability to do graduate college

work.        Susan Kern,   the     rehabilitation   counselor    to    whom   Liberty

Mutual       referred    Reeves,     testified by deposition that Reeves'

vocational goal of obtaining a master's degree in counseling is

reasonable for her to attain and that Reeves has the intellectual

ability to complete the program.               The Workers' Compensation       Court

noted "it's        reasonable to expect that she's capable of completing

the     master's     program   and   obtaining   certification    as    a   certified

counselor.'1

        However,     the evidence as to other aspects of the reasonable-

ness of Reeves'         plan was less favorable.         Reeves       testified   she

intends to continue living in Bozeman, Montana.                   Kern      testified

that the Bozeman area is saturated with professional counselors.

        Q.  As a vocational counselor what is your independent
        impression for what this young lady should do?


                                           6
     A.   Well, I thought--I think she's somewhat unrealistic
     about her view of what therapy in the private sector is
     like.   I think, if that's truly her goal--and that's her
     personal choice, if she wants to pursue it or not--I
     think it's going to be very difficult to establish a
     practice in Bozeman.

In her deposition, Kern stated:

     I think that Bozeman has a very competitive market,
     particularly in the self-employed, private counseling
     area. There are 52 LPC's [licensed professional counsel-
     ors] here.    That's not counting the people who have
     Master's in social work or clinical psychology. So it's
     very competitive.    It would be very hard to start a
     business here unless you had a completely new or unusual
     background that was really in demand to people.
Other than the fact that she knows many people in Bozeman, Reeves

presented no evidence of special experience or education that would

set her off from her competitors in opening a counseling practice.

     The   Workers'   Compensation Court reasoned that Reeves' own

testimony proved that her expectations regarding employment as a

private counselor were not reasonable and realistic. The court was

not persuaded that, as a new counselor in the saturated counseling

market of Bozeman, Montana,    Reeves would be able to attract the

kind of clientele to whom she wishes to limit her work.

     The court concluded Reeves would be most likely to find

counseling work with a social services agency.   Kern testified that

her investigation revealed there was often no pay differential

between persons with bachelor's and master's degrees in agency work

in the Bozeman job market.    With a master's degree, the wage could

rise to as much as $14.42 per hour, but for most positions in that

market,    entry-level wages were the   same for a person with a

master's degree as for one with a bachelor's degree.    At any rate,
Reeves does not wish to do agency work because it involves the type

of clientele she wishes to avoid.
        While § 39-71-2001,       MCA    (1993),    encourages    rehabilitation

training for persons injured on the job,                 the statute does not
obligate the insurer to pay for every rehabilitation plan which may

be conceived by a qualified injured worker.              If it did, subsection

(1) (c) of the statute would have no purpose.

        Section 39-71-2001, MCA (1993),          must also be viewed in light

of the purpose of the Workers' Compensation Act to return a worker

to work as soon as possible after a work-related injury or disease.

Section 39-71-105(2), MCA.         That purpose would not be furthered by

removing a worker from the work force for two years of "rehabili-

tation" which will not put the worker in a better position to

obtain    employment.
        The decision of the Workers' Compensation Court was based upon

an absence of a reasonable expectation that Reeves' rehabilitation

plan would improve her position                in the job market and on the

unreasonableness of the career envisioned in Reeves'                   proposed

rehabilitation plan as a means of employment, given her goals and

self-imposed       limitations.    Reasonableness is a question of fact.

Robertson    v.    Aero   Power-Vat,    Inc.    (Mont. 1995),    899 P.2d 1078,

1080,    52 St. Rep. 673, 674.          We review the Workers' Compensation

Court's findings of fact to determine whether they are supported by

substantial       evidence.   Stordalen v. Ricci's Food Farm (1993), 261

Mont. 256, 258, 862 P.2d 393, 394.                 Substantial evidence in the

record supports the Workers' Compensation              Court's   determination


                                          8
that Reeves' proposed plan did not represent "reasonable vocational
goals and a reemployment and wage potential with rehabilitation,"
as required under 5 39-71-2001(l) (c), MCA (1993).   We affirm the

decision of the Workers' Compensation Court.




We concur:




             Justices




                                  9
Justice James C. Nelson specially concurring.

     I concur in the resolution of the issue raised on appeal, but

believe that        the threshold and dispositive            issue   was     never
presented to the Worker's Compensation Court and, therefore, is not

addressed or resolved by this Court.

     Reeves appeals from the decision of the Workers' Compensation

Court denying her rehabilitation benefits under F, 39-71-2001, MCA

(1993).        Basically,     Reeves     contends that she is entitled to

rehabilitation benefits because, on the basis of the rehabilitation

plan which she proposed, her vocational goal (to obtain a masters

degree    in    counseling)    is both reasonable and attainable and in

accordance with her previous education, training, etc.

     Liberty Mutual contends that Reeves' plan of obtaining a

masters degree in counseling with the goal of counseling only a

limited sort of clientele in Bozeman is not reasonable and has

virtually no chance of,success.                Without going into detail, the

Workers'       Compensation Court appears to have adopted the view of

Liberty Mutual--i.e., that Reeves' plan is neither reasonable nor

attainable.
     I suggest that because of the posture in which this case was

presented to the Worker's Compensation Court by the parties, the

court did not have the opportunity to rule on the threshold and

dispositive       legal   problem    here.      Section 39-71-2001(l) (c), MCA

(1993),        provides     that    an   injured    worker   is   eligible     for

rehabilitation benefits if:

                                          10
        rehabilitation plan completed by a rehabilitation
     irovider and designated by the insurer certifies that the
     injured worker has reasonable vocational goals and a
     reemployment and wage potential with rehabilitation. The
     plan must take into consideration the worker's age,
     education, training, work history, residual physical
     capacities, and vocational interests.
      Section 39-71-1011(4),        MCA (1993), defines a "rehabilitation
plan" as:
      an individualized plan to assist a disabled worker in
      acquiring skills or aptitudes to return to work through
      job placement, on-the-job training, education, training,
      or specialized job modification.
That same section at (5) defines a "rehabilitation provider" as:
      a rehabilitation counselor certified by the board for
      rehabilitation certification [defined in subsection (l)]
      and designated by the insurer to the department or a
      department of    social   and rehabilitation    services
      counselor when a worker has been certified by the
      department of social and rehabilitation services under
      39-71-1003.
      I submit that the threshold problem in this case is that there
never was a "rehabilitation plan" before the Workers' Compensation
Court.       That     conclusion     follows   from   the   fact   that   no
"rehabilitation     provider I' designated by the insurer ever formulated
a   "rehabilitation     plan"      while taking   into consideration the
requirements of the applicable statutes
      To the contrary, Liberty Mutual simply hired Susan Kern, a
rehabilitation counselor and, at the outset, instructed her that
she was to assist Reeves with job placement but was not to assist
her in preparation of a rehabilitation plan which included further
education.     In other words, Liberty Mutual, up front,             simply
dictated that there would be no rehabilitation plan formulated by
the professional person whose job it was, under § 39-71-2001(l) (c),
                                        11
MCA (19931,    to come up with a plan.            Rather, Liberty Mutual made
the decision as to what rehabilitation benefits Reeves would be
entitled to--i.e., job placement assistance only--and then directed
the rehabilitation counselor to carry out that decision.
        I suggest that implicit in § 39-71-2001, MCA (1993),                       in
general, and in subsection (1) cc), in particular, is the obligation
on the part        of the insurer to,            in good faith, designate a
"rehabilitation        provider"     and then to let the             "rehabilitation
provider"      formulate      a     "rehabilitation      plan,"        taking     into
consideration the statutory criteria--the worker's age, education,
training,      work     history,     residual      physical     capacities,        and
vocational     interests.          See 5 39-71-2001(l)        (c), MCA.         A plan
developed in accordance with that                  statute     may     include    I'job
placement, on-the-job training, education, training, or specialized
job modification," or, presumably, any combination of those.                       See
5 39-71-1011(4), MCA (1993).
        The point is that it is the rehabilitation provider's job to
formulate the rehabilitation plan, not the insurer's. See § 39-71-
2001(1)(c), MCA (1993).            If the insurer can simply dictate at the

outset      what      the   plan    will    or    will   not      encompass       and,
coincidentally,        what benefits will or will not be provided, then
there    is,   obviously,     no need for the services of a trained,
experienced and certified rehabilitation provider, much less any

input from the injured worker.                  Under those circumstances the
entire statutory scheme is frustrated and the resultant "plan"                      is
nothing less than a sham.

                                           12
        This interpretation is consistent with the purpose of the
statute    to   provide rehabilitative          benefits    to   injured   workers.
Moreover, I suggest that what the insurer cannot do is exactly what
Liberty Mutual did in this case--i.e., refuse the claimant the
opportunity       for     rehabilitative        benefits    consistent      with   a
rehabilitation plan formulated by a rehabilitation provider in
accordance with the statutory criteria and on the basis of the
counselor's     professional     knowledge,      training and experience, and
work with the claimant.           That is the threshold problem here as
regards Liberty Mutual.
        On the part of Reeves, the statute clearly does not authorize
her to come up with her own rehabilitation plan as she is not a
rehabilitation provider under the statute nor has                          she been
designated in that capacity by the insurer (assuming that she had
the professional qualifications in the first place).                       Moreover,
simply because the claimant comes up with a plan of how she wants
to be rehabilitated, that does not obligate the insurer to agree
with her plan nor does it obligate the department or the court to
approve it.
        Here,   whether    Reeves' plan     was unrealistic and unworkable,
given the market and the type of practice she wanted to establish
was not the issue.         Rather, in my view, the court was put into the
position of having to simply assume that the claimant's plan was

the statutory "rehabilitation plan."               I   suggest that there was, in
fact,     no rehabilitation plan before the court as the statutory
requirements for formulating such a plan had not been even

                                           13
minimally followed by Liberty Mutual.          Furthermore,           Reeves had no
statutory authority to come up with her own plan.
      If the parties were required to follow the statutory scheme,
Liberty Mutual would be obligated to designate a "rehabilitation
provider" as defined in § 39-71-1011(5), MCA (1993), and then allow
the rehabilitation provider to independently work with the claimant
and develop a rehabilitation plan for presentation to the insurer.
Section 39-71-2001(l) (c) and cd), MCA (1993).                Assuming that the
rehabilitation provider and the plan certified that the injured
worker had reasonable vocational goals and reemployment and wage
potential with rehabilitation and that the plan is designed to
accomplish those, taking into consideration the requirements of §
39-71-2001(l)     (c), MCA (1993),   then it        seems   to me, that at a
minimum, the statutory framework has been honored.
      Under § 39-71-2001(l) (d), MCA (1993), if the injured worker
and the insurer agree with the rehabilitation plan, then the plan
is filed with the department of labor and benefits are provided in
accordance with the plan.       If either the insurer or the claimant
disagree   with   the   rehabilitation     plan,    the     insurer    or claimant   then
has   an   avenue of       review    through       mediation,         the   Workers'

Compensation Court and, ultimately, this Court.
      This interpretation of the statutory framework is consistent
with our    recent decision in State ex rel. Cobbs v. Montana
Department of Social and Rehabilitation Services (Mont. 1995),                         52
St.Rep. 1166, 1169, wherein we noted that the rehabilitation plan
under s 39-71-2001, MCA (1993), is "developed by the insurer,

                                      14
claimant and rehabilitation provider and filed with the Department
of Labor."     We also stated that "Ielntitlement          to rehabilitation
benefits sought pursuant to 5 39-7-2001, MCA (1993), is determined
by the worker, the insurer, the private 'rehabilitation provider,'
the Department of Labor and,             in the event of a dispute,       the
workers'     compensation    mediator         and the Workers'   Compensation
Court."    Cobbs,   52 St.Rep.      at 1169.
     In the      instant    case,     had the statutory framework been
followed, a rehabilitation plan might have been developed with and
for Reeves that would have satisfied both the insurer and the
claimant, or if not both, at least the court, on review.            As it is,
the statutes were ignored and Reeves has been denied rehabilitation
benefits   altogether.      A no less satisfactory consequence of this
case is that our opinion (which is only the second interpreting
this section of the code),           seemingly approves of the procedures
used here--procedures that do
statutory scheme enacted by the legisl




Justice Karla M. Gray concurs in the foregoing special concurrence.
                                                       P-




                                         15
Justice Terry N. Trieweiler dissenting.
         I dissent from the majority opinion.
         By affirming the Workers' Compensation Court, the majority has
placed an impossible burden on injured workers who wish to restore
some of their lost earning capacity by availing themselves of the
rehabilitation benefits provided for in the Workers' Compensation
Act.
         Joan Reeves proved that her earning          capacity had been
substantially reduced due to a job-related disability; her earning
capacity      could be   substantially       improved by furthering her
education;     and she was qualified by intellect,            training,     and
disposition for the program in which she sought to enroll.                These
facts are      uncontroverted   and    are    sufficient to    satisfy      the
requirements of § 39-71-2001, MCA (1993).
         Instead of applying the simple terms of the rehabilitation
statute, the Workers' Compensation Court, and the majority of this
Court,     have required that before completing a two-year graduate
program,     the claimant know exactly what kind of counseling she is
going to do, what kind of market there is for that counseling, and
how she would overcome professional obstacles that she is not even
in a position to anticipate.           What the court has done is no
different than concluding that it is unreasonable for someone to
enter law school unless they first know what their specialized area
of practice is going to be,      how many other people are currently
engaged in that specialized area, and what their marketing strategy
is going to be for competing with already established lawyers.

                                      16
Most    lawyers   would agree that applying these same      requirementsto

their own profession would be absurd.           Applying these requirements
to Joan Reeves is no less absurd.
        The uncontroverted evidence established the following:
        Joan Reeves has a bachelor's degree in home economics with a
family science option.           The family science option was recommended
for students intending to obtain a master's degree in family
counseling.        She satisfied the requirements for a family science
option because it was always her intention to obtain a master's
degree and become a family counselor.
        Joan maintained a "B"           average in high school and a "B+"
average in college.       Everyone concedes that she is academically and
intellectually       qualified     to   enter and successfully complete a
master's degree program which would qualify her to become a
licensed practical counselor providing marriage and family therapy.
        After her graduation from MSU in June 1991, before entering a
master's program, she first went to work to pay off debts that she
had accumulated during college and to save money for her graduate
education.        At the time, entry level jobs for which she would have
qualified with her college degree paid from $7.00 to $8.00 per
hour.    However, by doing physical labor for her father she was able
to earn $10.00 an hour.            She later earned $11.00 an hour as her
starting wage for UPS.           At the time of her injury she was earning
$12.82 an hour as a package car driver. Evidence at the trial was
that after two years on the job her wage would have increased to
$18.84 an hour.

                                          17
       On January 4, 1994, while working for UPS, Joan sustained a
back injury.         As a result of her injury she cannot return to her
job.     She has been unable to find employment related to her
education and instead does telemarketing and other part-time work
for the Bozeman        Chronicle.     Her    average   hourly   wage,   including
commissions,     is $9.81 an hour.
       She explained that her interest in obtaining a master's degree

was based on two factors.           First,    she stated that she could not
otherwise qualify for the specific type of counseling that she was
interested     in.      Second,    she testified that counselors with a
master's degree earn substantially more than counselors with a
bachelor's   degree.
       Reeves was not, as the Workers'            Compensation    Court   found,
unrealistically selective about the kind of work she wanted to do
as a counselor.           Following cross-examination by the Workers'
Compensation     Court    Judge,    she tried to provide the following
explanation for preferring private practice to agency work:
       THE COURT: I understand the kind of people that you want
       to counsel; but, in my mind immediately is are those the
       kind of people who are going to be coming to marriage
       counselors?
       THE WITNESS: You made a comment earlier that, you know,
       that I assumed that there were just going to be husbands
       and wives without kids and stuff. I just wanted to clear
       that up.   I mean I assume that husbands and wives are
       going to come in with kids who probably have drug
       problems or are acting out and those sort of things. I
       realize there are other types of situations.
            My clarification is that I think the difference
       being those people are coming to you for help. I mean
       they are not people who have been assigned to you by


                                        18
        someone else.    I mean those are people [who] actually
        want help.
        In other words, Reeves'     innocent statement which has been
blown out of proportion by the Workers' Compensation Court was that
given her choice she would rather counsel people in the private
sector who are interested in solving their problems than people
assigned to her at a government agency who are there simply because
they have to comply with some court or agency directive.
        The idea that this person who has not even enrolled in her
master's degree program should somehow be              able to anticipate
exactly who her clientele will be or how she will adapt her
education to the realities of the market place is strange to begin
with.    Nevertheless, doing her best to respond to the trial judge's
concerns, she later explained during re-examination that in a worst
case scenario if she could not successfully establish a private
practice,    but had a master's degree,      she could go to work for an
agency earning more than she would earn with a bachelor's degree
and still eventually attempt to work into a private practice.
        The testimony of Susan Kern,        the   rehabilitation   counselor
hired by Liberty Mutual,         did nothing to dispel         the obvious
conclusion    that   Reeves'   vocational    rehabilitation   proposal   was
reasonable.
        Kern agreed that Reeves' earning capacity, without further
education, was between $7.00 and $10.73 per hour, but that with a
master's degree her entry level wage for a mental health agency
would be $12.30 per hour.


                                     19
     Kern       agreed   that    Reeves    was   intellectually      capable of
completing the master's program.                 She agreed that with some
employers she would have a greater long-term earning capability
with a master's degree than with a bachelor's degree, and she
agreed that there were differences in the job descriptions for
people with bachelor's degrees,            as opposed to master's degrees.
Most critically, Kern, who was retained and paid for by Liberty
Mutual, gave the following testimony:

     Q.    I asked you in your deposition a question about
     whether you had enough information about Joan to form an
     opinion as to whether you thought her vocational goal of
     getting a master's degree was a reasonable goal for her.
     What is your opinion in that regard?
     A.     I think it's reasonable for her.
     Section       39-71-2001,     MCA     (1993),    does   not    require   the
impossible.       It simply requires that before a claimant qualifies
for rehabilitation benefits he or she have a partial disability, be
unable to return to the job at which the claimant was injured, and
have a rehabilitation           plan,     including   "reasonable     vocational
goals."   All of those requirements were satisfied in this case. To
deny Reeves benefits because prior to even entering the graduate
program she was not absolutely certain about the kind of clientele
she would counsel, the feasibility of the type of counseling she
thought   she    would   prefer,   or the marketing strategy she would
employ to be successful,         suggests a preoccupation on the part of

the trial court with denial of claimant's benefits, rather than an
objective application of the statutory requirement.



                                          20
       Although the concurring opinion certainly does not have the
force of precedent,       I am also concerned about some of the views
stated   therein.       I agree that pursuant to the requirements of
§ 39-71-2001, MCA (1993),        the insurer has no right to dictate to
the rehabilitation provider what plan is                most suitable for a
claimant.    I also agree that the insurer has an obligation to act
in good faith when it selects and designates the rehabilitation
provider and when it charges the provider with its responsibility.
       However,   to assume,     as the concurring opinion does,              that
insurers will not exert total and complete control,                      even if
indirectly, over the rehabilitation providers which it retains at
its expense, ignores reality.
       Under the current statutory scheme there is little opportunity
for,   and no funding with which injured workers can consistently
retain   rehabilitation      providers.     Insurers and employers are the
only parties      who    can   consistently hire them.               Any private
rehabilitation    provider     currently    operating   in   this    state   knows
that it cannot long do business without a satisfied clientele of
insurers.    Therefore,    if the only plans the Workers' Compensation
Court can cqnsider are those submitted by the rehabilitation
counselor hired by the insurer, no claimant will ever qualify for
rehabilitation      benefits     and      the   statutory    framework       which
encourages rehabilitation in exchange for a reduction in partial
disability benefits would be rendered meaningless.                  If this Court
is going to apply § 39-71-2001, MCA (19931,                   as narrowly as
suggested by the concurring opinion, it might as well interpret the

                                       21
statute to mean "an injured worker is eligible for rehabilitation
benefits if his or her insurer decides that it would like to pay an
extra 104 weeks of benefits."
        I    would   conclude    that    whenever    an   insurer, or      the
rehabilitation provider that it hires and pays for, arbitrarily and
unreasonably refuses to consider rehabilitation for an injured
worker, that worker must necessarily have the option of submitting
his or her own rehabilitation plan to the Workers' Compensation
court       for   consideration of      whether it     meets   the   statutory
requirements of 5 39-71-2001, MCA (1993).            To hold otherwise would
give the insurer complete and total control over the eligibility of
injured workers for rehabilitation benefits.
        Having made this observation, however, I would note that this
issue was not before the Workers'             Compensation Court and is not
before this Court because even the insurer concedes in its
appellate brief        that     under   the    circumstances it      would be
unreasonable to argue that the court should not have considered
claimant's proposed rehabilitation plan.             At page 18 of its brief
the insurer states:
             Additionally, Liberty does not claim rehabilitation
        benefits are inappropriate because no plan has been filed
        with the Department.     It would be unreasonable for a
        carrier to defend on this basis when the lack of a
        rehabilitation plan results from the insurer having
        instructed the rehabilitation provider to perform an
        employability assessment and then, after the assessment
        reveals the claimant can return to work without
        retraining, authorizes only job placement services.
        Joan Reeves proposed the most reasonable rehabilitation plan
possible considering her age, education, training, work history,

                                        22
physical   limitations, and vocational interests.   It was wrong to

frustrate her sincere and legitimate efforts to improve her

vocational future based on the unreasonable and impossible demands

of the trial court.

     For these reasons I dissent from the majority opinion and

disagree in part with the concurring opinion.



                                          Judtice


Justice William E. Hunt, Sr.,    joins in the foregoing dissenting
opinion.




                                 23
Justice W. William Leaphart, dissenting.


     I dissent.    In my opinion,    Reeves'   plan of obtaining a
Master's Degree in counseling was both reasonable and attainable.
Although the Court had concerns about the prospects of her success
at counseling in the private sector,    the record indicates that
Reeves would still have the option of seeking employment as a
counselor with a governmental agency.      With a Master's Degree,
Reeves will,   either in the public or private sector,    demand a
higher salary than with her Bachelor's Degree.




                                               Justic      L




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