Permanently disabled worker entitled to vocational rehabilitation

In Nebraska, accepting a job paying minimum wage does not automatically restore an injured worker to suitable or gainful employment when his previous employment was at a significantly greater wage.

Case name: Becerra v. United Parcel Service, No. S-11-1098 (Neb. 09/28/12).

Ruling: The Nebraska Supreme Court held that a worker's average weekly wage was $504, and he was entitled to vocational rehabilitation.

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What it means: In Nebraska, accepting a job paying minimum wage does not automatically restore an injured worker to suitable or gainful employment when his previous employment was at a significantly greater wage.

Summary: A worker injured his lower back in an accident arising out of and in the course of his employment. He suffered a 15 percent loss of earning capacity and was limited by permanent work restrictions. At the time of the accident, he earned $12.60 per hour and worked 17 hours per week while attending college. After his injury, the employer did not offer him his former position or any other job. The worker wanted to go back to school. The Nebraska Supreme Court held that his average weekly wage was $504 and he was entitled to vocational rehabilitation.

For employees earning hourly wages, the weekly wage is computed by averaging his earnings over the six months before the injury. When a permanent injury results from the accident, the weekly wages are computed based on a 40-hour workweek. Since the worker was an hourly employee who suffered a permanent injury, his average weekly wage based on a 40-hour workweek was $504 rather than $217.86 based on a 17-hour workweek.

The vocational rehabilitation counselor said that his recommendation for vocational rehabilitation depended on a determination of the average weekly wage. The court said that part-time employment with a different employer that paid an average weekly wage of $217.86 would arguably restore him to comparable employment. However, the court noted that there was no barrier to the worker working 40 hours per week at the time of trial or that he wanted to remain a part-time employee in the future. A 40-hour workweek at an average weekly wage of $217.86 would be a job at less than the minimum wage and far less than the wage the worker was earning when he was injured. The court determined that such employment would not restore the worker to suitable employment.

Read more at the WorkersComp Forum homepage.

December 17, 2012

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