Nebraska Supreme Court defines “restore” and “suitable employment” for vocational rehabilitation plans

Nebraska law permits the Nebraska Workers’ Compensation Court to approve vocational rehabilitation plans for certain injured workers to facilitate their return to gainful employment. Read on to learn about the Nebraska Supreme Court’s recent consideration of what the law means to “restore” an employee to work and in “suitable employment.”

Factual Background

            Charles Anderson injured his arm while working as a millwright with EMCOR Group, Inc. When Anderson was injured, he was making $26.50 an hour and $1060 per week. When Anderson reached maximum medical improvement, the workers’ compensation court determined that he was entitled to a vocational rehabilitation evaluation. Anderson and EMCOR agreed on a vocational rehabilitation counselor, Lisa Porter.

            Porter prepared a “Vocational Rehabilitation Plan Justification for Formal Training Proposal.” Under Nebraska statute, there are five priorities that must be used in developing and evaluating a vocational rehabilitation plan. A higher priority may not be used “unless all priorities below it are unlikely to result in suitable employment.” For Anderson, the three lowest priorities were inadequate as they involve a plan to work for the same employer. EMCOR did not have any suitable employment available for Anderson. Porter decided that the next highest priority would be unavailable to Anderson as well, which involved employment with a new employer. Porter’s research showed that available jobs for Anderson paid $9 to $11 an hour; not suitable in light of his earnings at EMCOR of $26.50 per hour. Porter also contacted other employers but they did not have suitable employment for Anderson.

            As a result, Porter decided the only option for Anderson was under the highest priority plans. This priority involved “formal training that will lead to employment in another career field.” Anderson had grown county-fair award winning vegetables in the past. Anderson also had an interest in this area. Therefore, Porter felt the career field best suited for Anderson would be in horticulture or agriculture.

            Upon making this finding, Porter prepared the plan for Anderson. Under her plan, Anderson “would obtain a 2-year associate’s degree of applied science in agriculture business and management with a focus in horticulture at Southeast Community College in Beatrice, Nebraska.” Anderson’s hourly wage would be $13.20 after completing his education.

            After the plan was created by Porter, it was evaluated by a vocational rehabilitation specialist appointed by the compensation court. The vocational rehabilitation specialist denied Porter’s plan. Based on information the court’s specialist learned from the community college’s placement services director, formal training was unnecessary for the job goals of the plan. The specialist also stated that the job search done by Porter showed six jobs that did not require training and that paid between $9 and $14 per hour. The specialist ultimately decided that Porter’s formal training plan was “not reasonable or necessary” as one of the plan goals (employment as a vegetable farmer) was something that Anderson was already performing so he had no need for further training.

            After the specialist denied the plan, EMCOR petitioned to modify the award of vocational rehabilitation benefits and services. EMCOR alleged that Anderson’s “condition and circumstances no longer support an award of such services.” EMCOR claimed these services were no longer necessary because Anderson was already partaking in the practice of gardening and Anderson admitted “his inability to earn a similar or increased wage performing the work for which he seeks vocational rehabilitating retraining, and consent to earning such a lower wage.” Anderson responded by filing a motion requesting the implementation of Porter’s plan.

Anderson’s Testimony

            The court heard evidence on Anderson’s motion. Anderson testified that he had earned his GED and received a diploma in computer-aided drafting in 1998. Due to changes in technology, this education was no longer useful. Anderson testified that there were few jobs available in his area, and he was unwilling to work more than 25 miles away from his hometown. Anderson did not seek employment in the previous year but did earn $150 a week for five months from selling vegetables that he grew in his garden. Collectively, Anderson and his wife made $8,000 per year. Anderson testified that his “ultimate career employment goal was to be self-employed.” Anderson wanted to expand his greenhouse. Formal education would qualify him for jobs in selling chemicals, farm management, or as a golf course manager. In learning these potential jobs, he could then build a greenhouse and become self-employed.

Compensation Court’s Opinion

            The compensation court dismissed EMCOR’s petition to modify the award of vocational rehabilitation benefits and services and declared that Anderson was “entitled to participate in the proposed plan” because his current job of farming was not “suitable employment.” The court then determined that it was “unable to conclude that [Porter’s] plan will not lead to a suitable job.” EMCOR then appealed.

Nebraska Supreme Court Ruling

            In considering the appeal, the Nebraska Supreme Court noted one of the primary purposes of the Nebraska Workers’ Compensation Act is “restoration of an injured employee to gainful employment” and that if an employee is “unable to perform suitable work for which he or she has previous training or experience, the employee is entitled to vocational rehabilitation services as may be reasonably necessary to restore him or her to suitable employment.” The central focus of EMCOR’s appeal was on whether the vocational rehabilitation plan set forth by Porter would restore Anderson to “suitable employment.”

            The court explicitly adopted definitions of “restore” and “suitable employment.” “Restore” was defined to mean “to put back.” The court defined “suitable employment” to mean “employment which is compatible with the employee’s pre-injury occupation, age, education, and aptitude.”

            The compensation court determined that income of less than $8,000 per year was not “suitable employment” for Anderson. In order for him to gain employment in the relevant field of horticulture, additional education would be required. The compensation court had also taken into consideration the fact that job opportunities were limited in the area where Anderson lived. The Supreme Court held there was sufficient evidence to support the lower court’s findings in this regard.

            Porter’s plan involved Anderson working full-time as a supervisor or manager and the median annual wage in the area of farming, fishing, and forestry was $49,100. The Court held that Porter’s plan would place Anderson into employment making similar wages prior to the injury and “in a field that would be compatible with his age, education, and aptitude.”

            Since the plan “was reasonably necessary to restore Anderson to suitable employment, the [compensation] court did not err in ordering that Anderson was entitled to participate in it.”

For employers

            When you have an employee claiming a workplace injury or are facing issues with regarding an employee’s claim to benefits following an injury, engaging an experienced workers’ compensation attorney is vital.