OAH Docket No. 54-1201-17304-2

STATE OF MINNESOTA

OFFICE OF ADMINISTRATIVE HEARINGS

FOR THE MINNESTOA DEPARTMENT OF

EMPLOYMENT AND ECONOMIC DEVELOPMENT

STATE SERVICES FOR THE BLIND

In the Matter of the Appeal of

Tom C. Erickson

FINDINGS OF FACT, CONCLUSIONS

AND RECOMMENDATION

This matter was heard by Administrative Law Judge Lucinda E. Jesson (ALJ) on July 20, 2006 at the Offices for the State Services for the Blind, 2200 University Avenue West, Suite 240, St. Paul, MN 55114-1840. The record in this matter closed at the end of the hearing. In early August, Petitioner Tom Erickson mailed additional materials and argument to the ALJ, who provided them to attorney for Respondent. Respondent provided a response to the additional documentation in a letter dated August 30, 2006.

Appearing on behalf of the Department of Employment and Economic Development, State Services for the Blind (Department) was Assistant Attorney General Richard L. Varco, Jr., 445 Minnesota Street, suite 900, St. Paul, MN 55101. Respondent Tom c. Erickson, Columbia Court Townhouse, 873-41^st Avenue NE, Columbia Heights, MN 55421 appeared on his own behalf at the hearing.

NOTICE

This report is a recommendation, not a final decision. The Commissioner of the Department of Employment and Economic Development—State Services for the Blind (the Commissioner) will make the final decision after a review of the record. The Commissioner may adopt, reject or modify these Findings of Fact, Conclusions, and Recommendations. Under Minn. Stat. § 14.61, the final decision of the Commissioner shall not be made until this Report has been made available to the parties to the proceeding for at least ten days. An opportunity must be afforded to each party adversely affected by this Report to file exceptions and present argument to the Commissioner. Parties should contact the office of the Commissioner, Minnesota Department of Employment and Economic Development, First National Bank Building, 332 Minnesota Street, Suite E200, St. Paul, MN 55101 to find out how to file exceptions or present argument.

If the Commissioner fails to issue a final decision within 90 days of the close of the record, this Report will constitute the final agency decision under Minn. Stat. § 14.62, subd. 2a. The record closes upon the filing of exceptions to the Report and the presentation of argument to the Commissioner, or upon the expiration of the deadline for doing so. The Commissioner must notify the parties and the Administrative Law Judge of the date on which the record closes.

Under Minn. Stat. § 14.63, subd. 1, the agency is required to serve its final decision upon each party and the Administrative Law Judge by first class mail or as otherwise provided by law.

STATEMENT OF THE ISSUES

Did the Department correctly conclude that as of April 18, 2006 providing Respondent with additional rehabilitation services available pursuant to Minn. R. 3325.0180 (2005) was not likely to enable him to obtain or to retain suitable gainful employment?

Based on the evidence in the hearing record, the Administrative Law Judge makes the following:

FINDINGS OF FACT

1. Respondent is an individual with visual and hearing impairments. He is deaf and has limited vision. He can read large print documents and copies of documents with either a handheld or large screen closed circuit TV (CCTV).[1] Two interpreters specializing in deaf blind work, provided interpretation for Respondent throughout the hearing and during the breaks. Respondent also was provided the opportunity during breaks to take the time he needed to use the CTTV to review copies of the three exhibits introduced by the Department during the hearing.

2. An individual is eligible for rehabilitation services from the Department if the individual has a visual disability that constitutes a substantial handicap to employment and there is a reasonable expectation that providing rehabilitation services is likely to enable the individual to obtain suitable gainful employment.[2]

3. Respondent initially was found eligible for rehabilitation services in June 2003. At the time, he was working for Minnesota Diversified Industries (MDI) in the program that provides services for people with disabilities, but sought another job. Beginning in June 2003, he received rehabilitation services from the Department. These services included both training and placement services. Later in 2003, Respondent was laid off from his job at MDI.

4. The training services provided to Respondent included Adjustment to Blindness training on an individual basis from trainer Joe Cioffi from September 12, 2003 until December 31, 2003; March 2, 2004-July 31, 2004; and October 4, 2005-December 31, 2005.[3] Mr. Cioffi provided training on cane and street crossing techniques. In his report on Respondent’s progress during mobility training, Mr. Cioffi described Respondent as having “limited motivation to cooperate” and “in denial of the dangers [at street crossings] facing him.”[4]

5. Respondent had a job at RISE, Inc. from July 6 to July 28, 2004. He was terminated from that job for failure to show up for work.

6. Respondent then attended onsite training for orientation, mobility, independent living skills, and vocation (including several work experiences where he was provided with signing job coaches and assistive technology) at Helen Keller National Center (Helen Keller) in New York City from September 26, 2004 to March 2005.[5]

7. According to the Vocational Report from Helen Keller, Respondent was usually late for scheduled classes and “lax and unmotivated”.[6] He worked at Applebee’s for 2 months, two days a week, six hours a day as part of the Helen Keller program. According to the Vocational Report, Respondent said he was in pain or ill weekly and center staff had to practically force him to go to work for two days a week.[7] In addition to the work at Applebee’s, Respondent had several other work experiences at Wal-Mart (stocking items); the Gap (attaching sensor tags to clothing); St. Francis Hospital (folding linens) and a restaurant (dishwasher) while at Helen Keller. At the end of his stay at Helen Keller, the center recommended, based on his work in the different settings, continuing his work as a folder and dishwasher.

8. According to an Orientation and Mobility Report from Helen Keller, Respondent often did not comply with instruction on cane technique, making street crossing dangerous, and was resistant to modifying his sign language techniques, making communication difficult.[8]

9. After his return from Helen Keller, Respondent still could not recognize letters in Braille. He received additional Adjustment to Blindness training from DeafBlind Services of Minnesota from April through September 2005 for Braille and independent living skills, as recommended by Helen Keller.[9]

10. In total, Respondent received Adjustment to Blindness training on an individual basis from two independent vendors and from the Helen Keller National Center for a total of 22 months.

11. Respondent states that he needs additional training. He proposes that he return to Helen Keller for additional training because, he states, the center does an excellent job.[10]

12. The Helen Keller counselor recommended at the end of Respondent’s stay at Helen Keller that he continue with the program for a longer period of time. Respondent disagreed at the time and left the program.[11]

13. In addition to the work opportunities provided at Helen Keller, Respondent received placement services from two additional vendors upon his return from New York in April 2005. Between April and July 2005, MEC Placement Services, which specializes in deaf/blind placements, went to every Applebee’s in Respondent’s area, as well as other employers, but did not find appropriate openings. The MEC job developing and job coach described one application at Doubletree, where, during the application process in the Human Resources department, Respondent continually interrupted her, waiving his hands and looking confused.[12]

14. Respondent also received placement services from Liz Jones Placement Services between July 2005 and February 2006. Ms. Jones found one job for Respondent, a dishwasher at Medtronic in the employee restaurant. Prior to starting the job, Mr. Cioffi provided training so that Respondent would know the bus routes and the building. On the job, he was provided with job coaches who were proficient in American Sign Language. Respondent was terminated from the job after two weeks because he could not keep up with the pace. Job coaches reported that when they tried to point out problems on the job (i.e. pans that were still dirty after washing), Respondent became belligerent and denied the problems was his fault.[13]

15. In addition to the use of placement services, Roselee Siegler, Vocational Rehabilitation counselor at the Department, conducted a search of the labor market to identify jobs that would fit Respondent’s interests and abilities. She contacted numerous employers as part of this search.

16. In March 2006, Ms. Siegler determined that it was not reasonable to expect that additional job placement services would result in Respondent’s securing competitive employment.[14] Respondent appealed this decision to Director Cathy Carlson. An appeals conference was held on April 12, 2006. Respondent was represented by Bonita Kallestad, Client Assistance Project, at that conference.[15]

17. Respondent states that if the Department would reopen his case, he would be honest and follow the rules closely. He testified that “I’ve learned my lessons.” He blames much of his trouble in work experiences at Helen Keller on one staff member who he described as forceful and pushy. He explains his trouble finding jobs in Minnesota by focusing on Ms. Siegler who he describes as “bad at explaining rules, my responsibilities.”[16] He acknowledges that he needs help finding a job because he has trouble communicating.[17]

18. In a letter dated April 18, 2006, Ms. Carlson notified Respondent that the Department upheld Ms. Siegler’s decision and determined that it had no reasonable expectation that additional rehabilitation services would result in employment for him.[18] In the letter, Ms. Carlson noted that Respondent is on a waiting list for supported employment at RISE, Inc. Accepting this job and performing the work successfully over a period of time is the best way to find other employment in the community in the future, according to the Department.[19]

19. Given the training described above, the different job and work opportunities provided and Respondent’s track record during those job placements, additional job placement services from the Department would not be likely to enable him to obtain or to retain suitable gainful employment.

20. This matter was initially closed at the end of the hearing on July 20, 2006. In early August 2006 Respondent mailed additional argument to the ALJ, who then forwarded those materials to the attorney for the Department, providing an opportunity to object to their admission and/or to respond to the argument. The ALJ accepts the additional materials and the Department’s response as post hearing briefs and reopens the record in order to receive them.

21. Based on these Findings of Fact, the Administrative Law Judge makes the following:

CONCLUSIONS

1. Respondent properly appealed the Department’s decision to terminate rehabilitation services. The Commissioner gave proper notice of the hearing and has fulfilled all relevant procedural requirements of law or rule. The Administrative Law Judge and the Commissioner of Employment and Economic Development have jurisdiction in this matter.

2. The Department is obligated to determine whether an individual is eligible for rehabilitation services. In order to be eligible for these services, there must be a reasonable expectation that providing the individual with rehabilitation services is likely to enable him to obtain or retain suitable gainful employment.[20]

3. The Department provided Respondent with extensive training and the opportunity to work at more than six different jobs. There is no reasonable expectation that additional services from the Department would result in suitable gainful employment for Respondent.

4. The Department correctly concluded that as of April 18, 2006 providing Respondent with additional rehabilitation services was not likely to enable him to obtain or to retain suitable gainful employment and terminated rehabilitation services to Respondent.

5. The foregoing Conclusions of Law are based on the reasons set out in the Memorandum which follows and which is incorporated into these conclusions by reference.

Based on these Conclusions, and the reasons set out in the attached Memorandum, the Administrative Law Judge makes the following:

RECOMMENDATION

The Administrative Law Judge recommends that the Commissioner of Employment and Economic Development affirm the decision to terminate services and close Tom Erickson’s file.

Dated: Oct 20, 2006

s/Lucinda E. Jesson

Lucinda E. Jesson

Administrative Law Judge

Reported: Taped, 3 tape(s)

No transcript prepared

MEMORANDUM

Rehabilitation services under the Department’s vocational rehabilitation program are only available to eligible individuals, defined for these purposes to mean an individual who has both a visual disability and a reasonable expectation that the provision of services will enable the individual to obtain or retain gainful employment.[21] It is the determination of the Department that after almost three years of training and placement services, the provision of additional services would not lead to employment for Respondent. In light of Respondent’s lack of progress between June 2003 and April 2006, that decision is reasonable.

At the hearing, Respondent stated that he feels better when he has work, but that he needs more training and assistance in communicating in order to find an appropriate job. He stated that if the Department would “open my case, I would be honest and follow the rules closely.” Respondent stated that “I’ve learned my lessons.”[22]

While this may be true as of the hearing, Respondent’s track record in the myriad of training and work placement opportunities reflected neither motivation nor progress. Respondent held three jobs between July 2003 and February 2006. He was laid off from one position and terminated from two others. One termination was due to his failure to show up for work. The second termination, in October 2005, was due to his inability to accomplish the assigned tasks.[23] In these jobs, as well as during the work experiences assigned at Helen Keller, his counselors remarked upon his lack of motivation, the tendency to blame others for his problems, and his difficulty communicating through communication cards.[24] Lack of follow through on training also was a reoccurring theme from his mobility trainer.

The Department’s training and placement efforts for Respondent, despite a lack of significant progress, were extensive. Respondent was sent to the premier national vendor for training and work placements, Helen Keller National Center. He received placement services from two vendors who specialized in deaf/blind services, as well as assistance from his vocational counselor at the State Services for the Blind. Two of his job coaches remarked upon Respondent’s boundary issues and disruptive behavior during the job application process.[25]

The Department is not required to continue to provide rehabilitation services indefinitely. Here, where it has made extensive efforts for over two and half years, with little progress toward the goal of securing suitable gainful employment for Respondent, it appropriately terminated further services.

L. E. J.

[13] Testimony of Ms. Carlson, Ex. C at 12-13.