Nebraska Workers’ Compensation Refresher on Vocational Rehabilitation

Often times, we received questions in Nebraska regarding vocational rehabilitation. Vocational rehabilitation benefits are appropriate when an injured employee is unable to return to the work for which he or she has previous training or experience. Hagelstein v. Swift-Eckrich Division of ConAgra, 261 Neb. 305, 622 N.W.2d 663 (2001). The statutory entitlement to vocational rehabilitation is set forth in §48-162.01(3).  According to the statute, the injured worker must prove that “as a result of the injury the employee is unable to perform suitable work for which he or she has previous training or experience.”  Neb. Rev. Stat. §48-162.01(3).  In order to meet this burden, an injured worker must prove that he/she has a permanent injury and must present some evidence of permanent restrictions or disability. Green v. Drivers Management, Inc., 263 Neb. 197, 639 N.W.2d 94 (2002).

Suitable work or employment is not specifically defined within the Nebraska Workers’ Compensation Act.  However, case law has defined “suitable employment” to mean employment similar in remuneration to that earned prior to the injury and compatible with the employee’s pre-injury occupation, age, education, and aptitude.  Haney v. Aaron Ferer & Sons, Co., 3 Neb. App. 14, 521 N.W.2d 77 (1994).

As a practical matter, the two most important factors that the Workers’ Compensation Court considers are: (1) the percentage of pre-injury wages that the employee is likely to earn in jobs for which the employee still has training, experience and the physical ability to perform; and (2) the difficulty and expense associated with “rehabilitating” the employee so that he or she can earn wages closer to that which he or she was earning at the time of the accident.

When an employee claims entitlement to vocational rehabilitation services, Neb. Rev. Stat. §48-162.01 provides that the employer and employee are to attempt to agree upon a vocational counselor to act as the counselor of record.  If no agreement can be reached, the Compensation Court is to be notified of the disagreement in writing along with a request for the appointment of a counselor from a directory maintained by the Court.  (See the forms in Appendix C).

The current approach applied by the Court is to appoint a counselor if the employee presents prima facie evidence that (1) he or she suffered a work-related injury that (2) has resulted or is likely to result in permanent impairment and (3) caused or is likely to cause permanent functional restrictions.

The services needed to return the injured employee to suitable work are evaluated through the use of five priorities. A higher priority may only be chosen if the counselor has ruled out a lower priority.  The priorities, from lowest to highest priority, include:

1. Return to the previous job with the same employer;
2. Modification of the previous job with the same employer;
3. A new job with the same employer;
4. A job with a new employer; or
5. A period of formal retraining which is designed to lead to employment in another career field.

The insurer/employer generally has an obligation to pay temporary total disability benefits or, in certain limited situations, temporary partial disability benefits, during the vocational rehabilitation program.  The insurer/employer is generally not required to pay temporary disability benefits during the development of a vocational rehabilitation plan.  However, when applicable, the Nebraska State Trust Fund pays tuition, book expenses, mileage, and lodging expenses incurred as a result of vocational rehabilitation. Neb. Rev Stat. §48-162.01.

For questions regarding vocational rehabilitation, please contact Nebraska workers’ compensation attorney Paul Barta at pbarta@baylorevnen.com.