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ANDERSON v. EMCOR GROUP

Cite as 298 Neb. 174

Charles Anderson, appellee, v. EMCOR Grou

appellant, and State of Nebraska, Worker

Compensation Trust Fund, app

___ 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 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.

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

11/22/2017 08:10 PM CST
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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 

Van Norman, Judge. Affirm

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, Cas

Kelch, and Funke,

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 
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the statutory goal to return an injured employee to “suitable 

employment,”1 we affirm the compensation court’s order.

BACKGROUND

Origina

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 Rehab

Counselor Op

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 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 evaluating 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.
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with 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 horticultural businesses.

A period of formal training designed to lead to employment 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 opportunities 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 education 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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A 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 information from the community college’s placement services director 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 specialist 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, noting that one of the specific goals of the plan was employment 

as a vegetable farmer or gardener and that Anderson was currently 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.

Modificatio

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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and services, alleging that Anderson’s “condition and circumstances no longer support an award of such services.” EMCOR 

asserted that any formal retraining or other vocational rehabilitation 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 earning such a lower wage.”

Anderson filed a motion requesting that the compensation 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 stipulated 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 Test

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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over 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 collectively 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 management, 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 

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 employment” 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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STANDARD 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 determinations 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 authorizing 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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gainful employment.14 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.”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 vocational rehabilitation. Gainful employment means employment 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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wrong. 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 recognizes the need for employment to supplement his income. 

In order to attain employment in a field related to his horticultural 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 impediments 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 employment. Although Anderson ultimately wished to become selfemployed 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 findings, we are mindful that the Nebraska Workers’ Compensation 

Act is construed liberally to carry out its spirit and beneficent 
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purposes.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 supported 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.

Affirme

18 Tapia-Reyes v. Excel Corp., 281 Neb. 15, 793 N.W.2d 319 (2011).