State News : Nebraska

On a global scale, one of the more unique aspects of the Nebraska Workers’ Compensation Act is the creation of vocational rehabilitation benefits. A primary purpose of the Act is restoration of an injured employee to gainful employment. When an injured 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 rules and regulations for vocational rehabilitation benefits can be found at § 48‑162.01. Generally speaking, before vocational rehabilitation benefits are awarded, the employee must prove that he or she has permanent restrictions or disability. This is because, absent permanent impairment or restrictions, the worker is fully able to return to any employment for which he or she was fitted before the accident, including the occupation held at the time the injury occurred. If an employee is able to work, he or she is not entitled to vocational rehabilitation.

There are two ways an employee can ask for vocational rehabilitation services. First, he or she may simply request these benefits at trial. However, an employee may also wish to request vocational rehabilitation services before trial or when litigation hasn’t been filed. This article focuses on the latter. The first step is for an employee to ask the employer if it will stipulate to a particular vocational counselor from the approved list of counselors provided by the Court. If the employer either does not agree that the employee is entitled to vocational rehabilitation benefits or will not agree to the proposed counselor, the employee may file a Request for a Vocational Counselor through the Court. At that point, the Vocational Rehabilitation Section of the Court will either grant the request and assign a counselor, or it may deny the request. If the employer does not feel that an employee is entitled to vocational rehabilitation benefits as a matter of law, it may file a Motion to Quash the appointment.

There are many reasons why an employee may not be entitled to vocational rehabilitation benefits. The first is a failure to show “prima facie” evidence of both a qualifying injury resulting from an accident, and corresponding permanent impairment and/or permanent restrictions. The Latin phrase prima facie means “first impression.” Stated another way, the prima facie standard means the employee only has to put forth enough evidence to show the Court that he/she may prevail on the issue – the Court will not actually decide if it agrees with that evidence.

This “prima facie” standard has been the center of several recent trial level decisions in the last year and therefore warrants a closer look at what the judges are saying about an employee’s entitlement to vocational rehabilitation. Before discussing the first decision, I should note that a common misconception is that an employee must have permanent work restrictions and that an impairment rating alone is not enough to support an award of vocational rehabilitation benefits. This is incorrect. See Font v. JBS USA, L.L.C., 2021 WL 1185840. The Nebraska Court of Appeals recently confirmed that, while creating a vocational plan absent permanent work restrictions may be “difficult,” it’s not necessarily legally impermissible. Stated another way, the Court can choose to award vocational rehabilitation benefits absent any evidence of permanent restrictions. This is precisely what Judge Fitzgerald did in Font. He awarded vocational rehabilitation benefits based on the employee’s 11% permanent impairment to her arm. However, just because a judge can doesn’t necessarily mean the judge must award benefits.

Judge Hoffert’s April of 2022 decision in Sorensen v. Sarpy County confirms this statement. Judge Hoffert fully recognized the employee had permanent impairment ratings for both ears, but after examining the evidence, he held, “there is no credible evidence at this juncture to quantify just how plaintiff’s medical impairments impact or diminish his ability to earn an income.” Judge Hoffert therefore declined to award vocational rehabilitation benefits as he wasn’t convinced the employee’s hearing loss meant he was not capable of performing suitable employment.

Judge Fridrich made a similar holding to that of Judge Hoffert in his 2019 decision in Rhodman v. White Trucking, LLC. In that case, the employee presented evidence of an impairment rating to his knee, but he did not have any permanent work restrictions. After declining to award vocational rehabilitation benefits, Judge Fridrich cited that a lack of permanent restrictions would result in a vocational counselor performing “unnecessary work at a cost to [the defendant].” He continued, “It seems more prudent and cost effective for there to be work restrictions in place before the costs of a vocational rehabilitation counselor are incurred.”

Judges Coe, Block and Martin have not directly analyzed vocational rehabilitation benefits in this context in the last few years, however, it should be noted that Judge Martin has discussed the “prima facie” standard as needing to be aligned with the “beneficent purpose of the Act.” Where the purpose of vocational rehabilitation benefits is to return employees to gainful employment, it’s a safe statement to say that Judge Martin will closely analyze the evidence and, if an employee presents credible evidence that he or she cannot return to suitable employment because of an accident-related injury, Judge Martin is likely to award vocational rehabilitation services.

Another common reason that vocational rehabilitation services are denied is the failure of the employee to show he or she cannot perform “suitable work.” In 2021, Judge Block recognized that an employee testified he could not use his shoulder which he claimed impacted his ability to work. However, the employee’s work record showed he had in fact returned to work after his accident without any apparent difficulties. In light of the same, Judge Block declined to award vocational rehabilitation services. Judge Stine made a similar opinion in August of 2019 when he held that the only evidence before him showed that the employee had no apparent issue returning to her pre-accident employment for some six months before she voluntarily resigned, and she failed to otherwise explain why she could not return to that job.

A final misconception is that vocational rehabilitation benefits are only eligible for employees who suffered whole body injuries. This thought is misapplying a separate role of vocational counselors. In workers’ compensation cases, vocational counselors are often asked to establish a vocational rehabilitation plan and/or assess an employee’s loss of earning capacity. While it’s true that an employee must have a whole-body injury in order to request a loss of earning power capacity evlauation, that does not apply to vocational rehabilitation services. All of the judges fully recognize this position and have been quick to reject any argument to the contrary.

Where vocational rehabilitation issues have been appearing more and more frequently in the Court, it’s important to understand both the legal requirements and each judge’s unique view of the evidence required from the employee to show a “prima facie” entitlement to vocational rehabilitation services. Knowing the unique viewpoints of each judge not only allows an employer to properly set reserves, but it also helps the employer construct an appropriate defense it if believes an employee is not entitled to benefits.

If you have questions about a potential vocational rehabilitation issue, please contact any of the lawyers at CPW by phone or email. Want to ensure you don’t miss out on the next post in the CPW compendium series? Be sure to subscribe to our newsletter.