48-162.01. Employees; rehabilitation services; directory of service providers, counselors, and specialists; vocational rehabilitation plan; priorities; Attorney General; duties; compensation court; powers; duties.

(1) One of the primary purposes of the Nebraska Workers' Compensation Act is restoration of the injured employee to gainful employment. To this end the Nebraska Workers' Compensation Court may employ one or more specialists in vocational rehabilitation. Salaries, other benefits, and administrative expenses incurred by the compensation court for purposes of vocational rehabilitation shall be paid from the Compensation Court Cash Fund.

(2) Vocational rehabilitation specialists employed by the court shall continuously study the problems of vocational rehabilitation and shall maintain a directory of individual service providers, counselors, and specialists which have been approved by the Nebraska Workers' Compensation Court. The compensation court may approve as qualified such individual service providers, counselors, and specialists as are capable of rendering competent vocational rehabilitation services to injured employees. No individual service provider, counselor, or specialist shall be considered qualified to provide vocational rehabilitation services to injured employees unless he or she has satisfied the standards for certification established by the compensation court and has been certified by the compensation court.

(3) When as a result of the injury an employee is unable to perform suitable work for which he or she has previous training or experience, he or she is entitled to such vocational rehabilitation services, including job placement and training, as may be reasonably necessary to restore him or her to suitable employment. Vocational rehabilitation training costs shall be paid from the Workers' Compensation Trust Fund. When vocational rehabilitation training requires residence at or near a facility or institution away from the employee's customary residence, whether within or without this state, the reasonable costs of his or her board, lodging, and travel shall be paid from the Workers' Compensation Trust Fund.

If entitlement to vocational rehabilitation services is claimed by the employee, the employee and the employer or his or her insurer shall attempt to agree on the choice of a vocational rehabilitation counselor from the directory of vocational rehabilitation counselors established pursuant to subsection (2) of this section. If they are unable to agree on a vocational rehabilitation counselor, the employee or employer or his or her insurer shall notify the compensation court, and a vocational rehabilitation specialist of the compensation court shall select a counselor from the directory of vocational rehabilitation counselors established pursuant to subsection (2) of this section. Only one such vocational rehabilitation counselor may provide vocational rehabilitation services at any one time, and any change in the choice of a vocational rehabilitation counselor shall be approved by a vocational rehabilitation specialist or judge of the compensation court. The vocational rehabilitation counselor so chosen or selected shall evaluate the employee and, if necessary, develop and implement a vocational rehabilitation plan. Any such plan shall be evaluated by a vocational rehabilitation specialist of the compensation court and approved by such specialist or a judge of the compensation court prior to implementation. In evaluating a plan the specialist shall make an independent determination as to whether the proposed plan is likely to result in suitable employment for the injured employee that is consistent with the priorities listed in this subsection. It is a rebuttable presumption that any vocational rehabilitation plan developed by such vocational rehabilitation counselor and approved by a vocational rehabilitation specialist of the compensation court is an appropriate form of vocational rehabilitation. The fee for the evaluation and for the development and implementation of the vocational rehabilitation plan shall be paid by the employer or his or her workers' compensation insurer. The compensation court may establish a fee schedule for services rendered by a vocational rehabilitation counselor. Any loss-of-earning-power evaluation performed by a vocational rehabilitation counselor shall be performed by a counselor from the directory established pursuant to subsection (2) of this section and chosen or selected according to the procedures described in this subsection. It is a rebuttable presumption that any opinion expressed as the result of such a loss-of-earning-power evaluation is correct.

The following priorities shall be used in developing and evaluating a vocational rehabilitation plan. No higher priority may be utilized unless all lower priorities have been determined by the vocational rehabilitation counselor and a vocational rehabilitation specialist or judge of the compensation court to be unlikely to result in suitable employment for the injured employee that is consistent with the priorities listed in this subsection. If a lower priority is clearly inappropriate for the employee, the next higher priority shall be utilized. The priorities are, listed in order from lower to higher priority:

(a) Return to the previous job with the same employer;

(b) Modification of the previous job with the same employer;

(c) A new job with the same employer;

(d) A job with a new employer; or

(e) A period of formal training which is designed to lead to employment in another career field.

(4) The compensation court may cooperate on a reciprocal basis with federal and state agencies for vocational rehabilitation services or with any public or private agency.

(5) The Attorney General, when requested by the administrator of the compensation court, may file a motion pursuant to section 48-162.03 regarding any issue related to vocational rehabilitation services or costs pursuant to this section. The Attorney General shall be considered a party for purposes of such motion. The Attorney General may initiate an original action before the compensation court or may intervene in a pending action and become a party to the litigation. Any such motion shall be heard by a judge of the compensation court other than the presiding judge.

(6) An employee who has suffered an injury covered by the Nebraska Workers' Compensation Act is entitled to prompt physical and medical rehabilitation services. If physical or medical rehabilitation services are not voluntarily offered and accepted, the compensation court or any judge thereof on its or his or her own motion, or upon application of the employee or employer, and after affording the parties an opportunity to be heard by the compensation court or judge thereof, may refer the employee to a facility, institution, physician, or other individual service provider capable of rendering competent physical or medical rehabilitation services for evaluation and report of the practicability of, need for, and kind of service or treatment necessary and appropriate to render him or her fit for a remunerative occupation, and the costs of such evaluation and report involving physical or medical rehabilitation shall be borne by the employer or his or her workers' compensation insurer. Upon receipt of such report and after affording the parties an opportunity to be heard, the compensation court or judge thereof may order that the physical or medical services and treatment recommended in the report or other necessary physical or medical rehabilitation treatment or service be provided at the expense of the employer or his or her workers' compensation insurer.

When physical or medical rehabilitation requires residence at or near the facility or institution away from the employee's customary residence, whether within or without this state, the reasonable costs of his or her board, lodging, and travel shall be paid for by the employer or his or her workers' compensation insurer in addition to any other benefits payable under the Nebraska Workers' Compensation Act, including weekly compensation benefits for temporary disability.

(7) If the injured employee without reasonable cause refuses to undertake or fails to cooperate with a physical, medical, or vocational rehabilitation program determined by the compensation court or judge thereof to be suitable for him or her or refuses to be evaluated under subsection (3) or (6) of this section or fails to cooperate in such evaluation, the compensation court or judge thereof may suspend, reduce, or limit the compensation otherwise payable under the Nebraska Workers' Compensation Act. The compensation court or judge thereof may also modify a previous finding, order, award, or judgment relating to physical, medical, or vocational rehabilitation services as necessary in order to accomplish the goal of restoring the injured employee to gainful and suitable employment, or as otherwise required in the interest of justice.

Source

Annotations

1. Award of vocational rehabilitation benefits

2. Powers of court

3. Miscellaneous

1. Award of vocational rehabilitation benefits

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 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).

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).

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 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).

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).

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).

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. Powers of court

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).

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).

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).

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).

3. Miscellaneous

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).

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).

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).

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).

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).

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).

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).

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).