Benefits and Compensation

Nebraska Supreme Court OK’s Employee’s Vocational Rehabilitation Plan

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


“Frank” injured his arm while working as a millwright for EMCOR Group, Inc. At the time of his injury, he was making $26.50 an hour (or $1,060 a week). When he reached maximum medical improvement, the workers’ compensation court determined that he was entitled to a vocational rehabilitation evaluation. Frank and EMCOR agreed on a vocational rehabilitation counselor, “Fiona.”

Fiona prepared a “Vocational Rehabilitation Plan Justification for Formal Training Proposal.” Under Nebraska law, five priorities 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 Frank, the three lowest priorities were inadequate because they involved working for the same employer and EMCOR did not have suitable employment available for him. Fiona decided that the next highest priority, which involved employment with a new employer, was also unavailable to him.

Research showed that available jobs for Frank paid $9 to $11 an hour—not suitable in light of his EMCOR earnings of $26.50 an hour. Fiona also contacted other employers, but they did not have suitable employment for Frank.

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

Fiona prepared a plan for Frank. Under her plan, he “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.” His hourly wage after completing his education would be $13.20.

The plan was evaluated by a vocational rehabilitation specialist appointed by the workers’ compensation court. The vocational rehabilitation specialist denied Fiona’s plan. Based on information from the community college’s placement services director, the specialist found that formal training was unnecessary for the plan’s job goals.

The specialist also stated that Fiona’s job search showed six jobs that did not require training and paid between $9 and $14 per hour. The specialist ultimately decided that Fiona’s formal training plan was “not reasonable or necessary” since one of the plan goals (employment as a vegetable farmer) was something Frank was already doing. Thus, 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, alleging that Frank’s “condition and circumstances no longer support an award of such services.”

The company claimed the services were no longer necessary because Frank was already partaking in the practice of gardening and he admitted “his inability to earn a similar or increased wage performing the work for which he seeks vocational rehabilitating retraining . . . and consent[ed] to earning such a lower wage.” Frank responded by filing a motion requesting the implementation of Fiona’s plan.

Frank’s Testimony

Frank testified that he had earned his GED and received a diploma in computer-aided drafting in 1998. Because of changes in technology, his education was no longer useful. He testified that there were few jobs available in his area, and he was unwilling to work more than 25 miles away from his hometown. He did not seek employment in the previous year, but he did earn $150 a week for 5 months by selling vegetables he grew in his garden. Collectively, Frank and his wife made $8,000 in the previous year.

Frank testified that his “ultimate career employment goal was to be self-employed” and that he wanted to expand his business. Formal education would qualify him for jobs selling chemicals or managing a farm or golf course. After learning to perform those potential jobs, he could then build a greenhouse and become self-employed.

Workers’ Compensation Court’s Opinion

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

Nebraska Supreme Court’s Ruling

The supreme court noted that two of the primary purposes of the Nebraska Workers’ Compensation Act are to restore “an injured employee to gainful employment” and to ensure 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 whether Fiona’s vocational rehabilitation plan would restore Frank to “suitable employment.”

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

The workers’ compensation court determined that income of less than $8,000 per year was not “suitable employment” for Frank. For him to gain employment in the relevant field of horticulture, additional education was required. The workers’ compensation court also took into consideration the fact that job opportunities were limited in the area where he lived. The supreme court held there was sufficient evidence to support the lower court’s findings on that issue.

Fiona’s plan involved Frank working as a full-time supervisor or manager, and the median annual wage in the field of farming, fishing, and forestry was $49,100. The supreme court held that Fiona’s plan would place Frank in employment making similar pay to the wages he made prior to his injury “in a field that would be compatible with his age, education, and aptitude.” Since the plan “was reasonably necessary to restore Frank to suitable employment, the [workers’ compensation] court did not err in ordering that [he] was entitled to participate in it.”

Lessons for Employers

Issues involving Nebraska’s workers’ comp law can be very complex. When an employee claims he suffered a workplace injury or you are faced with issues regarding an employee’s claim to benefits following an injury, engaging an experienced workers’ comp attorney is vital to the process.

Bonnie Boryca, an editor of Nebraska Employment Law Letter, can be reached at Blake Schneiderwind, a junior at Creighton Law School and summer associate/law clerk with Erickson | Sederstrom, assisted in the preparation of this article.

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