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MARK J. TURBEDSKY v. COMMONWEALTH PENNSYLVANIA (03/17/82)

decided: March 17, 1982.

MARK J. TURBEDSKY, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF LABOR AND INDUSTRY, RESPONDENT



Appeal from the Order of the State Board of Vocational Rehabilitation in case of In Re: Appeal of Mark J. Turbedsky, dated November 19, 1980.

COUNSEL

John B. Dunn, for petitioner.

Daniel R. Schuckers, Assistant Chief Counsel, with him Jeffrey R. Miller, Assistant Attorney General, for respondent.

Judges Mencer, Rogers and Craig, sitting as a panel of three. Opinion by Judge Rogers. Judge Palladino did not participate in the decision in this case.

Author: Rogers

[ 65 Pa. Commw. Page 365]

The issue here is whether the Bureau of Vocational Rehabilitation of the Department of Labor and Industry (BVR) is required by the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 701 et seq. (1973) and federal regulations adopted thereunder, to provide full-time attendant care to the petitioner, Mark J. Turbedsky, who has been unconditionally accepted in BVR's vocational rehabilitation program and who contends and has introduced essentially unrefuted evidence that full-time attendant care will be reasonably expected to benefit him in terms of employability.

The petitioner is a respirator dependent quadriplegic as a result of an accident. He requires full-time attention of someone to monitor a mechanical ventilation system on which his life depends and to attend to his personal and other needs. For this reason he is now a resident at Muhlenberg Medical Center when not at his college classes with an attendant.

Prior to the accident which resulted in his injuries, the petitioner was a college student. He has since resumed his studies at Allentown College of St. Francis deSales, where he is engaged in two courses a semester. The costs of his education, including tuition, books, transportation and attendant care during his trips to and from school and while attending classes have been, and are now, provided by BVR. The petitioner is convinced that if he were able to live other than in an institution as he is now required because he does not have full-time attendant care, he could improve his progress in his college studies and consequently his employability.

Following hearings on Turbedsky's requests for unconditional (rather than his then conditional) acceptance in BVR's program and for full-time attendant care, the Secretary of the Department of Labor and Industry, acting as chairman of the State Board of

[ 65 Pa. Commw. Page 366]

Vocational Rehabilitation, adopted the decision and order of the hearing examiner, BVR Director John Hagen, which accepted the petitioner unconditionally into BVR's vocational rehabilitation program but refused his request for full-time attendant care.

The petitioner contends that he established at the BVR hearing that the provision of a full-time attendant would improve his progress at college which would in turn enhance his employability and BVR is hence required by the Rehabilitation Act of 1973, federal regulations adopted thereunder, and by Pennsylvania's state plan as established pursuant to the federal act to provide him with full-time attendant care.

BVR counters with the contentions: (1) that BVR has no power to provide full-time attendant care because such service is not an authorized service under Title I or the Rehabilitation Act of 1973, entitled "Vocational Rehabilitation Services," but that this service is only authorized by Title VII of the Act, entitled "Comprehensive Services for Independent Living," a program in which the State of Pennsylvania has chosen not to participate; (2) that even if BVR were empowered to provide full-time attendant care as a vocational rehabilitation service, the petitioner has not shown that the provision of a full-time attendant would aid him in terms of employability, as required by the Act; and (3) that conceding for argument's sake that BVR is empowered to provide this service as a vocational rehabilitation service, and that such service would aid the petitioner in terms of employability, BVR has discretion in the allocation of its funds and may refuse the petitioner full-time attendant care simply to provide other services to other people. We reject BVR's contentions and, accepting the petitioner's, we reverse the Secretary's order refusing the petitioner's request for full-time attendant care while he pursues his college education. With respect to BVR's contention

[ 65 Pa. Commw. Page 367]

    that full-time attendant care is not available under Title I, we first note that at 29 U.S.C. § 723, Congress has pertinently provided:

(a) Individual services. Vocational rehabilitation services under this act are any goods or services necessary to render a handicapped individual employable, ...


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