by | Aug 5, 2021

The Nebraska Supreme Court recently considered whether an employer can be ordered to pay for the costs of constructing a custom-built accessible home for an employee.

In Lewis v. MBC Construction Co., the employee was injured in the course of his employment and had his left leg amputated. After the injury, the employee asked his employer to pay for modification of his rental property to make it accessible. Before those modifications could be made, the employee was evicted from the rental property. The employee then moved into his family’s apartment.

The employee’s physician stated that the employee’s living situation at his family’s apartment was “untenable” and that the employee needed a “fully handicap accessible home.”

The employee had plans drafted for an accessible four-bedroom, three-car garage house. The cost of the proposed house would have been nearly $400,000. The employee asked the Workers’ Compensation Court to order the employer to pay for the construction of the house.

The employer was willing to pay for modifications to an existing home, but was unwilling to purchase or construct a new house for the employee. The employer argued that the proposed house was neither reasonable nor necessary, and adduced evidence that there were at least 105 available rental properties in the market that would meet the employee’s needs, costing between $515 and $1,100 per month.

The Workers’ Compensation Court held that Lewis’ proposed four-bedroom, three-car-garage home was not reasonable and necessary. The Compensation Court also held that the necessary modifications could not be made to the employee’s current apartment.

The Compensation Court ordered the employer to find an existing home to which modifications could be made, or in the alternative, to build or purchase an accessible home for the employee. The employer appealed that order.

Nebraska’s Supreme Court found that the Compensation Court did not address which of the alternative housing options were reasonable and necessary. The Order merely required the employer to provide accessible housing of some kind. The Compensation Court also did not address to what extent the employer was responsible for the costs of insurance, taxes, and rental or mortgage payments on any new housing. As a result, Nebraska’s Supreme Court found that the records were insufficient for meaningful review. The Supreme Court remanded the case for further proceeding in order to obtain a more decisive order.

Notably, one Supreme Court justice wrote a concurring opinion. The concurring justice agreed with the Supreme Court’s decision, but expressed concerns that Section 48-120 could be interpreted in a way that allowed the Compensation Court to expand the extent of compensable benefits without statutory authority. The concurring justice suggested that any expansion of benefits should be carried out through the Legislature, not the courts.

By not reaching the ultimate issue in this case, chances are the case will eventually work its way back up to Nebraska’s Supreme Court on appeal again in the future. For now, it remains an unanswered question of law, as to whether an employer can be held responsible for building an accessible home for an employee.

This post was drafted by Tyler Rademacher, a law clerk at Baylor Evnen. If you have questions about the financial responsibilities of an employer after an employee has been injured, please contact Micah C. Hawker-Boehnke or Paul Barta at 402-475-1075 for more information.