Annotations

• 1. Award of vocational rehabilitation benefits

• 2. Suitable employment

• 3. Rebuttable presumption

• 4. Labor market

• 5. Powers of court

• 6. Modification by court

• 7. Miscellaneous

• 1. Award of vocational rehabilitation benefits

• The workers' compensation court did not clearly err in denying vocational rehabilitation benefits to an employee who had secured substantial gainful employment but who desired an award of vocational rehabilitation in case he became unable to continue his present employment. Melton v. City of Holdrege, 309 Neb. 385, 960 N.W.2d 298 (2021).

• A vocational rehabilitation plan seeking to place a part-time hourly employee who suffered a permanent impairment in employment where the employee would earn wages similar to those based upon a calculation of average weekly wage under section 48-121(4) would best achieve the goal of restoring the employee to suitable employment. Becerra v. United Parcel Service, 284 Neb. 414, 822 N.W.2d 327 (2012).

• In all cases not otherwise provided for by statute or by the Nebraska Evidence Rules, a presumption imposes on the party against whom it is directed the burden of proving that the nonexistence of the presumed fact is more probable than its existence. This rule applies to the rebuttable presumption that an opinion regarding loss of earning capacity expressed by a vocational rehabilitation counselor appointed or selected pursuant to subsection (3) of this section is correct. In determining whether the presumption contained in subsection (3) of this section has been rebutted, the single judge is required to make factual findings. Frauendorfer v. Lindsay Mfg. Co., 263 Neb. 237, 639 N.W.2d 125 (2002).

• To hold that a worker can receive vocational rehabilitation benefits absent a finding that the worker is permanently impaired does not amount to a sensible reading of this section. Green v. Drivers Mgmt., Inc., 263 Neb. 197, 639 N.W.2d 94 (2002).

• Subsection (3) of this section does not provide for the modification of previous awards; it merely defines a benefit available to a class of injured workers. Dougherty v. Swift-Eckrich, 251 Neb. 333, 557 N.W.2d 31 (1996).

• A finding that an employee's injury is compensable under the Workers' Compensation Act is required for approval of any vocational rehabilitation plan paid for by the trust fund, though such a finding is not necessarily required for settlements including a program of vocational rehabilitation paid for by the employer or its insurer. Miner v. Robertson Home Furnishing, 239 Neb. 525, 476 N.W.2d 854 (1991).

• Vocational rehabilitation may be denied where the injured worker is able to perform work for which the worker has previous training and experience. Cline v. County Seat Lounge, 239 Neb. 42, 473 N.W.2d 404 (1991).

• An employee is entitled to vocational rehabilitation benefits when, as the result of a compensable injury, he or she is unable to perform work for which he or she has previous training or experience or when there is a reasonable probability that such rehabilitation will reduce the amount of earning power loss the employee would otherwise suffer. Bindrum v. Foote & Davies, 235 Neb. 903, 457 N.W.2d 828 (1990).

• An employee, unless he or she is otherwise qualified to receive temporary total disability benefits, is entitled to such benefits only while undergoing rehabilitation which has been ordered by the compensation court. Bindrum v. Foote & Davies, 235 Neb. 903, 457 N.W.2d 828 (1990).

• A plan of direct job placement, when prescribed as the only form of appropriate vocational rehabilitation for an injured employee, is vocational rehabilitation within the meaning of section 48-121(5). Carter v. Weyerhaeuser Co., 234 Neb. 558, 452 N.W.2d 32 (1990).

• An award of vocational rehabilitation benefits is permitted when, as the result of a compensable injury, a worker is unable to perform work for which he or she has previous training or experience, or when such rehabilitation will reduce the amount of earning power loss the worker would otherwise suffer. Thom v. Lutheran Medical Center, 226 Neb. 737, 414 N.W.2d 810 (1987).

• An award of vocational rehabilitation benefits must be supported by evidence which shows the workman is unable to perform work for which he has previous training and experience. Bender v. Norfolk Iron & Metal Co., 224 Neb. 706, 400 N.W.2d 859 (1987).

• A finding that vocational rehabilitation is for the employee's best interest is a statutory prerequisite to ordering such. Pollock v. Monfort of Colorado, 221 Neb. 859, 381 N.W.2d 154 (1986).

• A finding by the Workmen's Compensation Court of total disability upon the part of a claimant meets the requirements of this section so as to justify the award of vocational rehabilitation services. Heironymus v. Jacobsen Transfer, 215 Neb. 209, 337 N.W.2d 769 (1983).

• Subsections (3) and (6) of this section when read together, mean that the statute authorizes vocational rehabilitation training when the employee has suffered a reduction in earning power that may be remedied by such training as well as when the specific requirements of subsection (3) are met. Sidel v. Travelers Ins. Co., 205 Neb. 541, 288 N.W.2d 482 (1980).

• When an employee is unable to perform the work for which he has previous training or experience as a result of an injury covered by the Workmen's Compensation Act, he is entitled to vocational rehabilitation services, including retraining and job placement, as may be reasonably necessary to restore him to suitable employment. Behrens v. Ken Corp., 191 Neb. 625, 216 N.W.2d 733 (1974).

• Past performance in a rehabilitation program can be used as a basis to determine whether further vocational rehabilitation should be awarded. An obvious requirement of a plan of vocational rehabilitation is that the injured party cooperate with the program. Mere physical presence in a program does not necessarily establish cooperation. Pursuant to subsection (6) of this section, the Workers' Compensation Court may suspend, reduce, or limit compensation if a worker refuses to be rehabilitated; however, the court is not required to take that action. Warburton v. M & D Construction Co., 1 Neb. App. 498, 498 N.W.2d 611 (1993).

• 2. Suitable employment

• The goal of suitable employment, for purposes of vocational rehabilitation analysis, includes a similar earning capacity for the workers' compensation claimant. Bower v. Eaton Corp., 301 Neb. 311, 918 N.W.2d 249 (2018).

• Although an injured employee ultimately wished to become self-employed growing and selling produce, a vocational rehabilitation plan designed to train the employee for full-time work as a supervisor or manager and geared toward returning the employee to employment paying wages similar to those earned prior to the injury comported with the goal to return an injured employee to suitable employment. Anderson v. EMCOR Group, 298 Neb. 174, 903 N.W.2d 29 (2017).

• Suitable employment is employment which is compatible with the employee's pre-injury occupation, age, education, and aptitude. Anderson v. EMCOR Group, 298 Neb. 174, 903 N.W.2d 29 (2017).

• An illegal immigrant's avowed intent to remain an unauthorized worker in the United States is contrary to the statutory purpose of this section of returning an employee to suitable employment. Ortiz v. Cement Products, 270 Neb. 787, 708 N.W.2d 610 (2005).

• Accepting a job paying minimum wage does not automatically "restore" a claimant to "suitable" or "gainful" employment pursuant to this section, where the claimant's previous employment was at a significantly higher wage. Yager v. Bellco Midwest, 236 Neb. 888, 464 N.W.2d 335 (1991).

• 3. Rebuttable presumption

• The opinions of a court-appointed vocational rehabilitation expert regarding a workers' compensation claimant's vocational rehabilitation and loss of earning power have a rebuttable presumption of validity. Money v. Tyrrell Flowers, 275 Neb. 602, 748 N.W.2d 49 (2008).

• Pursuant to subsection (3) of this section, a rebuttable presumption in favor of a court-appointed vocational rehabilitation expert's opinion in workers' compensation proceedings can be rebutted by a showing that the experts' assessment was predicated on principles that are contrary to law. Giboo v. Certified Transmission Rebuilders, 275 Neb. 369, 746 N.W.2d 362 (2008).

• Pursuant to Neb. Evid. R. 301, in all cases not otherwise provided for by statute or by the Nebraska Evidence Rules, a presumption imposes on the party against whom it is directed the burden of proving that the nonexistence of the presumed fact is more probable than its existence. This rule applies to the rebuttable presumption that an opinion regarding loss of earning capacity expressed by a vocational rehabilitation counselor appointed or selected pursuant to this section is correct. Dawes v. Wittrock Sandblasting & Painting, 266 Neb. 526, 667 N.W.2d 167 (2003).

• Subsection (3) of this section creates two rebuttable presumptions, the "vocational rehabilitation plan presumption of correctness" and the "loss of earning capacity opinion presumption of correctness". Pursuant to the plain language of subsection (3) of this section, in order for a vocational rehabilitation plan presumption of correctness to attach, two conjunctive requirements must be met; first, the vocational rehabilitation counselor must develop a vocational rehabilitation "plan", and second, that plan must be submitted and approved by a vocational rehabilitation specialist of the Workers' Compensation Court. Where a vocational rehabilitation counselor has declined to evaluate an injured worker's loss of earning capacity, the vocational rehabilitation counselor has not provided a loss of earning capacity opinion from which to afford a rebuttable presumption of correctness. Rodriguez v. Monfort, Inc., 262 Neb. 800, 635 N.W.2d 439 (2001).

• The only opinion regarding vocational rehabilitation or loss of earning power entitled to a rebuttable presumption pursuant to subsection (3) of this section is that of a vocational rehabilitation counselor chosen or selected by the procedures set forth in subsection (3) of this section. The phrase "loss-of-earning-power evaluation" in subsection (3) of this section refers to a process as opposed to a document. This section applies to the rebuttable presumption that an opinion regarding loss of earning capacity expressed by a vocational rehabilitation counselor appointed or selected pursuant to subsection (3) of this section is correct. Variano v. Dial Corp., 256 Neb. 318, 589 N.W.2d 845 (1999).

• In determining whether the presumption contained in subsection (3) of this section, that any opinion expressed as the result of a loss-of-earning-power evaluation by a court-appointed vocational rehabilitation counselor is correct, has been rebutted, a single judge of the Workers' Compensation Court is required to make factual findings. The rebuttable presumption in subsection (3) of this section, that any opinion expressed as the result of a loss-of-earning-power evaluation by a court-appointed vocational rehabilitation counselor is correct, can be rebutted not only by the testimony of another expert, but also by the testimony of the claimant. Romero v. IBP, Inc., 9 Neb. App. 927, 623 N.W.2d 332 (2001).

• 4. Labor market

• If an employer believes a court-appointed vocational expert's opinion in selecting the relevant geographic area for assessing a claimant's loss of earning power is incorrect, the employer has the burden to rebut the expert's opinion by showing there are employment opportunities reasonably available to the claimant in a prospective area. Money v. Tyrrell Flowers, 275 Neb. 602, 748 N.W.2d 49 (2008).

• In determining whether to include surrounding communities as part of the relevant labor market for assessing the claimant's loss of earning power, both the court-appointed vocational rehabilitation experts and the trial judge should consider the following factors: (1) availability of transportation, (2) duration of the commute, (3) length of workday the claimant is capable of working, (4) ability of the person to make the commute based on his or her physical condition, (5) economic feasibility of a person in the claimant's position working in that location, and (6) whether others who live in the claimant's hub community regularly seek employment in the prospective area. Money v. Tyrrell Flowers, 275 Neb. 602, 748 N.W.2d 49 (2008).

• 5. Powers of court

• Pursuant to subsection (3) of this section, if rehabilitation services are not voluntarily offered and accepted, Second Injury Fund may apply to Workers' Compensation Court to determine need for vocational rehabilitation. Sherard v. Bethphage Mission, Inc., 236 Neb. 900, 464 N.W.2d 343 (1991).

• To determine whether findings of fact made by the compensation court support an order granting or denying vocational rehabilitation benefits, the Supreme Court must consider the findings of fact in light of this section. Yager v. Bellco Midwest, 236 Neb. 888, 464 N.W.2d 335 (1991).

• The inability of an injured employee to perform work for which he has previous training and experience is ordinarily a question of fact to be determined by the compensation court. Smith v. Hastings Irr. Pipe Co., 222 Neb. 663, 386 N.W.2d 9 (1986).

• Whether an injured workman has a right to vocational rehabilitation depends upon his inability to perform work for which he has previous training and experience, and is ordinarily a question of fact to be determined by the compensation court. Evans v. American Community Stores, 222 Neb. 538, 385 N.W.2d 91 (1986).

• The Workmen's Compensation Court may, as a condition of awarding compensation to an injured employee, require the employee, if appropriate, to submit himself for evaluation to determine if the employee may be retrained and thereby gainfully employed in the future. Savage v. Hensel Phelps Constr. Co., 208 Neb. 676, 305 N.W.2d 375 (1981).

• In making award for rehabilitation services, the Workmen's Compensation Court may prescribe procedure for employee to follow if he wants to obtain such services. Camp v. Blount Bros. Corp., 195 Neb. 459, 238 N.W.2d 634 (1976).

• Pursuant to subsection (3) of this section, when a vocational rehabilitation counselor submits multiple reports that are determined to be written not because a process of recovery was incomplete from the time a prior report was written, but, rather, because a counselor gives differing opinions each based on a different factual scenario, it is up to the trial court to make factual findings to determine which report should be given the rebuttable presumption of correctness. Ladd v. Complete Concrete, 13 Neb. App. 200, 690 N.W.2d 416 (2004).

• Pursuant to subsection (3) of this section, when a vocational rehabilitation counselor submits multiple reports that are determined to be written not because a process of recovery was incomplete from the time a prior report was written, but, rather, because a counselor gives differing opinions each based on a different factual scenario, it is up to the trial court to make factual findings to determine which report should be given the rebuttable presumption of correctness. Noordam v. Vickers, Inc., 11 Neb. App. 739, 659 N.W.2d 856 (2003).

• The Workers' Compensation Court's determination that the employee was entitled to language rehabilitation services as recommended by the rehabilitation specialist was not clearly erroneous. Paz v. Monfort, Inc., 1 Neb. App. 267, 492 N.W.2d 894 (1992).

• 6. Modification by court

• Where a prior award by the compensation court provided medical or physical rehabilitation services, the compensation court may modify the award of such services to the extent that the compensation court finds such modification necessary in order to accomplish the goal of restoring the injured employee to gainful and suitable employment or is otherwise required in the interest of justice. Spratt v. Crete Carrier Corp., 311 Neb. 262, 971 N.W.2d 335 (2022).

• Subsection (7) of this section cannot be used solely to punish or coerce an injured worker. There must be evidence to support a finding that the worker's disability would have been reduced had the worker cooperated with medical treatment or vocational rehabilitation. Hofferber v. Hastings Utilities, 282 Neb. 215, 803 N.W.2d 1 (2011).

• Subsection (7) of this section is intended to permit the compensation court to modify rehabilitation plans in response to changed circumstances following the entry of the initial plan. It does not apply to situations in which a worker has refused to cooperate with treatment or rehabilitation. Hofferber v. Hastings Utilities, 282 Neb. 215, 803 N.W.2d 1 (2011).

• Subsection (7) of this section is intended to prevent an employee's refusal to improve his or her medical condition or earning capacity from causing an employer to pay more workers' compensation benefits than it should. It only authorizes the complete termination of a claimant's right to benefits under the Nebraska Workers' Compensation Act if evidence is presented to support a finding that had the employee availed himself or herself of the benefits offered, the employee would no longer be disabled. Hofferber v. Hastings Utilities, 282 Neb. 215, 803 N.W.2d 1 (2011).

• Both parts of the two-part test in subsection (7) of this section present factual questions to be determined by the trial judge based upon the evidence. Lowe v. Drivers Mgmt. Inc., 274 Neb. 732, 743 N.W.2d 82 (2007).

• Subsection (7) of this section establishes a two-part test to determine whether benefits should be suspended, reduced, or limited. First, the employee must either refuse to undertake or fail to cooperate with a court-ordered physical, medical, or vocational rehabilitation program. Second, the employee's refusal must be without reasonable cause. Lowe v. Drivers Mgmt. Inc., 274 Neb. 732, 743 N.W.2d 82 (2007).

• Under the provisions of subsection (7) of this section, the employer bears the burden of proof to demonstrate that an injured employee has refused to undertake or failed to cooperate with a physical, medical, or vocational rehabilitation program and that such refusal or failure is without reasonable cause such that the compensation court or judge may properly rely on such evidence to suspend, reduce, or limit the compensation otherwise payable under the Nebraska Workers' Compensation Act. Lowe v. Drivers Mgmt. Inc., 274 Neb. 732, 743 N.W.2d 82 (2007).

• The plain language of the last sentence of subsection (7) of this section contemplates a modification of services previously granted and does not provide for a modification of a final order to grant entirely new services or benefits. McKay v. Hershey Food Corp., 16 Neb. App. 79, 740 N.W.2d 378 (2007).

• 7. Miscellaneous

• An employee's willingness to undergo evaluation and testing by a state agency is evidence that the employee is amenable to any rehabilitation, training, or educational program determined by the compensation court. Willuhn v. Omaha Box Co., 240 Neb. 571, 483 N.W.2d 130 (1992).