Recent Case Law

Nebraska Workers' Compensation Decisions of Note

 

Bixenmann v. H. Kehm Construction, 267 Neb. 669, 676 NW2d 370 (2004) (March 26, 2004)

 
Facts:  Plaintiff suffered a work accident and injury on October 8, 1996. On January 24, 2000, a vocational rehabilitation counselor was appointed after plaintiff reached MMI.  Counselor met with the plaintiff and prepared a vocational rehabilitation plan and the plan was sent to the vocational rehabilitation specialist pursuant to Rule 36.  The specialist approved the plan and sent a copy of the plan to the defendant.  Defendant did not respond within 14 days. Plaintiff began school on January 7, 2002.  At trial, Plaintiff sought the compensation court's approval of the plan and requested TTD benefits retroactive to January 7, 2002.   The trial court found that plaintiff was entitled to vocational rehabilitation benefits and approved the plan.  The trial court, however, declined to award TTD benefits retroactive to January 7, 2002 and rather awarded TTD from the date of the court's order forward.  The trial court reasoned that it was prohibited by statute to issue a retroactive award.  The Review Panel affirmed.  Plaintiff appealed.

 
Issue:  Whether TTD benefits should be awarded retroactively to the commencement of the vocational rehabilitation plan pursuant to §48-121(5) (Cum.Supp.2002).

 
Rule:  An injured employee may not undertake rehabilitation on his or her own and receive TTD benefits under the Act without approval from either the court or his or her former employer having offered vocational rehabilitation.  See Thach v. Quality Pork International, 253 Neb. 544, 570 N.W.2d 830 (1997).

 
Holding/Reasoning:  The court held that because the rehabilitation plan in this case was not court ordered as of the date classes commenced, a retroactive award is only proper if it is found that the employer offered the plan and the plaintiff accepted.  Court held that defendants were not deemed to have accepted the plan by reason of their failure to respond within 14 days under rule 36, and found no evidence that defendants had offered vocational rehabilitation.  Therefore, the court concluded that TTD benefits were appropriate only from the date of the order by the trial court.