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Anderson v. EMCOR Group, Inc.

Supreme Court of Nebraska

November 3, 2017

Charles Anderson, Appellee,
v.
EMCOR Group, Inc., Appellant, and State of Nebraska, Workers' Compensation Trust Fund, Appellee.

         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 verdict 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 questions 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 authorizing 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.

         [298 Neb. 175] 7. 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 services as may be reasonably necessary to restore him or her to suitable employment.

         8. Workers' Compensation: Words and Phrases. Suitable employment is employment which is compatible with the employee's preinjury occupation, 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, PC, L.L.O., for appellee Charles Anderson.

          Douglas J. Peterson, Attorney General, and LorraT. O'Banion for appellee State of Nebraska, Workers' Compensation Trust Fund.

          Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy, Kelch, 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 rehabilitation specialist "denied" the plan. The employer petitioned to eliminate the requirement, and the employee moved for plan approval. The court granted approval and denied elimination. The employer appeals. Because competent evidence in the record supported the court's factual findings in light of [298 Neb. 176] the 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 unspecified 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 Rehabilitation Counselor Opinions

         If an employee claims entitlement to vocational rehabilitation 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 ...


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