Anderson v. EMCOR Group

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/03/2017 09:13 AM CDT
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ANDERSON v. EMCOR GROUP
Cite as 298 Neb. 174Charles A nderson, appellee, v. EMCOR Group, Inc.,
appellant, and State of Nebraska, Workers’
Compensation Trust Fund, appellee.
___ N.W.2d ___
Filed November 3, 2017. No. S-17-040.
1. Workers’ Compensation: Appeal and Error. A judgment, order, or
award of the Workers’ Compensation Court may be modified, reversed,
or set aside only upon the grounds that (1) the compensation court acted
without or in excess of its powers; (2) the judgment, order, or award was
procured by fraud; (3) there is not sufficient competent evidence in the
record to warrant the making of the order, judgment, or award; or (4)
the findings of fact by the compensation court do not support the order
or award.
2. ____: ____. On appellate review, the factual findings made by the trial
judge of the Workers’ Compensation Court have the effect of a jury ver-
dict and will not be disturbed unless clearly wrong.
3. Workers’ Compensation: Statutes: Appeal and Error. The meaning
of a statute is a question of law, and an appellate court is obligated in
workers’ compensation cases to make its own determinations as to ques-
tions of law.
4. Workers’ Compensation. Whether an injured worker is entitled to
vocational rehabilitation is ordinarily a question of fact to be determined
by the Workers’ Compensation Court.
5. Workers’ Compensation: Appeal and Error. To determine whether
findings of fact made by the compensation court support an order
granting or denying vocational rehabilitation benefits, an appellate
court must consider the findings of fact in light of the statute autho-
rizing vocational rehabilitation benefits, Neb. Rev. Stat. § 48-162.01(Reissue 2010).
6. Workers’ Compensation: Intent. A primary purpose of the Nebraska
Workers’ Compensation Act is restoration of an injured employee to
gainful employment.
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ANDERSON v. EMCOR GROUP
Cite as 298 Neb. 1747. Workers’ Compensation. 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 serv­
ices as may be reasonably necessary to restore him or her to suit-
able employment.
8. Workers’ Compensation: Words and Phrases. Suitable employment
is employment which is compatible with the employee’s preinjury occu-
pation, age, education, and aptitude.
9. Workers’ Compensation. The Nebraska Workers’ Compensation Act is
construed liberally to carry out its spirit and beneficent purposes.
Appeal from the Workers’ Compensation Court: Laureen K.
Van Norman, Judge. Affirmed.
Dru M. Moses and Patrick J. Sodoro, of Law Office of
Patrick J. Sodoro, L.L.C., for appellant.
Dennis P. Crawford, of Crawford Law Offices, P.C., L.L.O.,
for appellee Charles Anderson.
Douglas J. Peterson, Attorney General, and Lorra T. O’Banion
for appellee State of Nebraska, Workers’ Compensation
Trust Fund.
Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy,
K elch, and Funke, JJ.
Cassel, J.
INTRODUCTION
The Workers’ Compensation Court awarded an injured
employee unspecified vocational rehabilitation. A counselor
recommended formal training, but the court’s rehabilita-
tion specialist “denied” the plan. The employer petitioned to
eliminate the requirement, and the employee moved for plan
approval. The court granted approval and denied elimina-
tion. The employer appeals. Because competent evidence in
the record supported the court’s factual findings in light of
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ANDERSON v. EMCOR GROUP
Cite as 298 Neb. 174the statutory goal to return an injured employee to “suitable
employment,”1 we affirm the compensation court’s order.
BACKGROUND
Original Award
The circumstances leading to the initial award of unspeci-
fied vocational rehabilitation services were largely undisputed.
Charles Anderson sought workers’ compensation benefits due
to an injury to his upper right extremity. He sustained the
injury in the course of his employment as a millwright with
EMCOR Group, Inc. (EMCOR). At that time, Anderson earned
an hourly wage of $26.50 and an average weekly wage of
$1,060. In the initial award, the compensation court expressly
stated that it was making no determination as to entitlement
to vocational rehabilitation services. After Anderson reached
maximum medical improvement, the court entered a further
award determining that Anderson was entitled to a vocational
rehabilitation evaluation.
Vocational R ehabilitation
Counselor Opinions
If an employee claims entitlement to vocational rehabilita-
tion services, the employee and the employer or the employer’s
insurer shall attempt to agree on the choice of a vocational
rehabilitation counselor.2 The parties agreed upon Lisa Porter,
who prepared a “Vocational Rehabilitation Plan Justification
for Formal Training Proposal” for Anderson.
Section 48-162.01(3) sets forth five priorities, in order from
lower to higher priority, to be used in developing and evaluat-
ing a vocational rehabilitation plan. No higher priority may be
used unless all lower priorities are unlikely to result in suitable
employment.3 The three lowest priorities involve employment
1
See Neb. Rev. Stat. § 48-162.01(3) (Reissue 2010).
2
See id.3
See id.- 177 -
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ANDERSON v. EMCOR GROUP
Cite as 298 Neb. 174with the same employer.4 But Porter noted that Anderson could
not return to work with EMCOR, because EMCOR had no
suitable work available. The next higher priority would be a
job with a new employer.5 But Porter’s Internet job searches
uncovered jobs paying $9 to $11 per hour. She also called
various employers and discovered that there were no current
openings in small automotive and engine repair businesses and
that all permanent worker positions were filled in horticul-
tural businesses.
A period of formal training designed to lead to employ-
ment in another career field is the highest priority set out in
§ 48-162.01(3)(e). Porter decided that a training program in
Anderson’s region was the only viable option. She stated:
“Anderson did not require any vocational assessment in the
form of an interest test, since he already knew what he wanted
to do. His interest was developed and he had the skill to grow
vegetables as evidenced by having grown county-fair award
winning vegetables in the past.” She felt that a horticultural or
agricultural program would be ideal due to “amazing opportu-
nities available . . . in seed production, tree farms, nurseries,
garden centers[,] and hybrid seed producers.” Porter further
stated: “Anderson will not be able to earn a comparable wage
to the $26.50 that he was earning pre-injury initially. However,
he is interested in working with an employer once his edu-
cation is complete for several years before perhaps one day
becoming self-employed in hydroponics.”
Porter ultimately prepared a plan of study for Anderson.
According to the plan, Anderson 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. After completion
of the plan, Porter projected that Anderson’s hourly wage
would be $13.20.
4
See § 48-162.01(3)(a) through (c).
5
See § 48-162.01(3)(d).
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ANDERSON v. EMCOR GROUP
Cite as 298 Neb. 174A vocational rehabilitation plan must be evaluated by a
vocational rehabilitation specialist of the compensation court
and approved by such or a judge of the compensation court
before it is implemented.6 There is a rebuttable presumption
that any plan approved by the specialist is an appropriate form
of vocational rehabilitation.7 But here, the specialist “denied”
the proposed plan. The specialist noted that labor market infor-
mation from the community college’s placement services direc-
tor did not substantiate the necessity for the proposed formal
training or the appropriateness of the specific job goals. Nor
did the labor market information in Porter’s plan justification
support the need for the proposed formal training. The special-
ist observed that Porter’s Internet job search showed six job
openings—none of which required formal training—with one
opening reporting wages of $9 per hour and another reporting
wages of $12 to $14 per hour. The specialist concluded that the
plan for formal training was not reasonable or necessary, not-
ing that one of the specific goals of the plan was employment
as a vegetable farmer or gardener and that Anderson was cur-
rently performing those job functions.
Porter responded to the specialist’s denial. She stated that
the job goals selected for Anderson were as a supervisor or
manager; they were not as a seasonal, minimum-wage earning
worker. The job titles Porter focused on required knowledge
and education that typically involved training in vocational
schools, on-the-job training, and up to an associate’s degree.
According to an Internet resource, first line supervisors of
farming, fishing, and forestry workers in Nebraska earned a
median annual wage of $49,100 in 2015.
Modification Sought
EMCOR filed a petition to modify the award. It requested a
modification of the award of vocational rehabilitation benefits
6
See § 48-162.01(3).
7
See id.
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ANDERSON v. EMCOR GROUP
Cite as 298 Neb. 174and services, alleging that Anderson’s “condition and circum-
stances no longer support an award of such services.” EMCOR
asserted that any formal retraining or other vocational reha-
bilitation services were unnecessary because (1) Anderson was
currently engaged in gardening and selling the yield of his
efforts and (2) Anderson acknowledged “his inability to earn
a similar or increased wage performing the work for which he
seeks vocational rehabilitating retraining, and consent to earn-
ing such a lower wage.”
Anderson filed a motion requesting that the compensa-
tion court approve the vocational rehabilitation plan prepared
by Porter.
The compensation court thereafter held a hearing on
EMCOR’s petition and Anderson’s motion. The parties stipu-
lated that the usual rebuttable presumption of correctness did
not attach to Porter’s proposed plan because the specialist did
not approve of the plan.
Claimant’s Testimony
Anderson testified regarding his educational background.
He earned a diploma through the GED program. In 1998, he
obtained a diploma in computer-aided drafting. But Anderson
testified that the diploma was no longer “applicable” because
he “would have to totally retrain” due to changes in technology.
At the time of the hearing, Anderson lived in Dawson,
Nebraska. He testified that there were few job opportunities
in his area and that “[e]verything is pretty much physical
labor.” Anderson expressed his unwillingness to commute to
employment located more than 20 or 25 miles away. Dawson
is located approximately 11⁄2 hours from Lincoln and from
Omaha. The closest town, Humboldt, Nebraska, is 10 miles
away and has a population of approximately 1,000 people.
Beatrice is 57 miles away.
Anderson had not sought employment over the past year.
He earned money by selling vegetables raised in his half-acre
garden, resulting in earnings of approximately $150 a week
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ANDERSON v. EMCOR GROUP
Cite as 298 Neb. 174over a 5-month period. Anderson wished to build a greenhouse
so that he could sell produce year round, but materials for the
greenhouse would cost approximately $3,000 and Anderson did
not have the money to construct one. Anderson also helped his
wife create crafts to sell. He testified that he and his wife col-
lectively earn approximately $8,000 a year.
Anderson wanted to have Porter’s plan implemented. He
testified it would improve his business by providing him
with knowledge to expand “with the greenhouse,” knowledge
about chemicals used, and general knowledge in botany. He
felt that the associate’s degree would qualify him for jobs
involving applying or selling chemicals, in farm manage-
ment, or as a golf course manager. Anderson’s ultimate career
employment goal was to be self-employed. But he explained
that he needed other employment before he could construct a
greenhouse and become self-employed. Anderson agreed that
after completing the program, he would earn less than he did
at EMCOR.
Compensation Court’s Decision
The compensation court dismissed EMCOR’s petition to
modify and ordered that Anderson was entitled to participate in
the proposed plan. The court concluded that Anderson’s current
employment of operating his garden was not “suitable employ-
ment” and declined to modify the previous award of vocational
rehabilitation services. With regard to Porter’s plan, the court
stated that it was “unable to conclude that the plan will not lead
to a suitable job for [Anderson].”
EMCOR filed a timely appeal, and we moved the case to
our docket.8
ASSIGNMENT OF ERROR
EMCOR assigns that the compensation court erred as a
matter of law when it determined that the proposed vocational
rehabilitation plan would result in suitable employment.
8
See Neb. Rev. Stat. § 24-1106(3) (Reissue 2016).
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ANDERSON v. EMCOR GROUP
Cite as 298 Neb. 174STANDARD OF REVIEW
[1] A judgment, order, or award of the compensation court
may be modified, reversed, or set aside only upon the grounds
that (1) the compensation court acted without or in excess of
its powers; (2) the judgment, order, or award was procured
by fraud; (3) there is not sufficient competent evidence in the
record to warrant the making of the order, judgment, or award;
or (4) the findings of fact by the compensation court do not
support the order or award.9
[2,3] The parties disagree as to whether the issue on appeal
presents a question of fact or a question of law. On appellate
review, the factual findings made by the trial judge of the
compensation court have the effect of a jury verdict and will
not be disturbed unless clearly wrong.10 But the meaning of a
statute is a question of law, and an appellate court is obligated
in workers’ compensation cases to make its own determina-
tions as to questions of law.11
[4,5] Whether an injured worker is entitled to vocational
rehabilitation is ordinarily a question of fact to be determined
by the compensation court.12 To determine whether findings of
fact made by the compensation court support an order granting
or denying vocational rehabilitation benefits, an appellate court
must consider the findings of fact in light of the statute autho-
rizing vocational rehabilitation benefits, § 48-162.01.13
ANALYSIS
[6,7] A primary purpose of the Nebraska Workers’
Compensation Act is restoration of an injured employee to
9
Neb. Rev. Stat. § 48-185 (Cum. Supp. 2016).
10
Gardner v. International Paper Destr. & Recycl., 291 Neb. 415, 865
N.W.2d 371 (2015).
11
Interiano-Lopez v. Tyson Fresh Meats, 294 Neb. 586, 883 N.W.2d 676(2016).
12
Stacy v. Great Lakes Agri Mktg., 276 Neb. 236, 753 N.W.2d 785 (2008).
13
Yager v. Bellco Midwest, 236 Neb. 888, 464 N.W.2d 335 (1991).
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ANDERSON v. EMCOR GROUP
Cite as 298 Neb. 174gainful employment.14 When an injured employee is unable to
perform suitable work for which he or she has previous train-
ing or experience, the employee is entitled to vocational reha-
bilitation services “as may be reasonably necessary to restore
him or her to suitable employment.”15 This appeal centers on
whether a proposed plan of vocational rehabilitation would
restore an employee to “suitable employment.”
[8] Over 25 years ago, this court recognized that we had
never defined the terms “restore,” “suitable employment,” and
“gainful employment” as used in § 48-162.01.16 We found
instructive definitions from other jurisdictions and quoted
with approval the Alabama Supreme Court’s interpretation of
the terms:
“‘Restore’ means to put back. The ability to be gainfully
employed must be put back or restored through voca-
tional rehabilitation. Gainful employment means employ-
ment similar in remuneration to that earned prior to the
injury. Implicit in this is that the gainful employment
sought to be restored must be ‘suitable.’ By ‘suitable’
we mean employment which is compatible with the
employee’s pre-injury occupation, age, education, and
aptitude. . . .”17
We now explicitly adopt those definitions. Thus, “suitable
employment” is “employment which is compatible with
the employee’s pre-injury occupation, age, education, and
aptitude.”
Although the compensation court’s factual findings were
not extensive, we cannot say that those findings were clearly
14
§ 48-162.01(1).
15
See § 48-162.01(3). See, also, Becerra v. United Parcel Service, 284 Neb.
414, 822 N.W.2d 327 (2012).
16
See Yager v. Bellco Midwest, supra note 13.
17
Id. at 895-96, 464 N.W.2d at 340, quoting Ex Parte Beaver Valley Corp.,
477 So. 2d 408 (Ala. 1985).
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ANDERSON v. EMCOR GROUP
Cite as 298 Neb. 174wrong. The court found: Anderson “acknowledges he would
eventually like to earn sufficient income gardening to be
able to support himself and his family. However, he recog-
nizes the need for employment to supplement his income.
In order to attain employment in a field related to his horti-
cultural interests, he will require additional education.” The
court determined that vocational rehabilitation services were
necessary because income of less than $8,000 per year was
not suitable employment. In approving the plan proposed by
Porter, the court stated: “While there are numerous impedi-
ments to [Anderson’s] potential successful completion of the
plan, the Court is unable to conclude that the plan will not
lead to a suitable job for [Anderson].” And the court also
recognized that Anderson’s “job opportunities are limited by
his choice to live in Dawson, . . . a small, rural area.” The
court’s findings are supported by the record and, thus, are not
clearly wrong.
Opposition to the plan focused on Anderson’s goal to be
self-employed and disregarded his need for other employ-
ment. Although Anderson ultimately wished to become self-
employed growing and selling produce—work he was already
performing—he testified that he would need to obtain other
employment before he could do so successfully. And Porter’s
plan was designed to train Anderson for full-time work as
a supervisor or manager. She pointed out that the median
annual wage in 2015 for first line supervisors of farming,
fishing, and forestry workers was $49,100. Thus, the plan
was geared toward putting Anderson back to employment
paying wages similar to those earned prior to the injury and
in a field that would be compatible with his age, education,
and aptitude.
[9] In considering the compensation court’s factual find-
ings, we are mindful that the Nebraska Workers’ Compensation
Act is construed liberally to carry out its spirit and beneficent
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ANDERSON v. EMCOR GROUP
Cite as 298 Neb. 174purposes.18 Because the plan was reasonably necessary to
restore Anderson to suitable employment, the court did not err
in ordering that Anderson was entitled to participate in it.
CONCLUSION
Because the findings of the compensation court are sup-
ported by competent evidence in the record and the plan
would comport with the statutory goal to return an injured
employee to suitable employment, we affirm the compensation
court’s order.
A ffirmed.
18
Tapia-Reyes v. Excel Corp., 281 Neb. 15, 793 N.W.2d 319 (2011).