Fighting for Vocational Rehabilitation Benefits

The plaintiff experienced a work-related injury that left her with a 30% permanent functional impairment and loss of earning power, entitling her to a vocational rehabilitation plan. The Court approved a vocational rehabilitation plan to provide her with formal training for suitable future employment.

Stanfill v. Nash Finch Company

IN THE NEBRASKA WORKERS’ COMPENSATION COURT

KATHLEEN K. STANFILL, Plaintiff, vs. NASH-FINCH COMPANY, Defendant, vs. STATE OF NEBRASKA, WORKERS’ COMPENSATION TRUST FUND, Intervenor.

DOC: 203 NO: 1358

ORDER APPROVING VOCATIONAL REHABILITATION PLAN

This matter came before the Court on September 12, 2006, on the pretrial order of August 30, 2006, and on the objection of the intervenor to the proposed vocational rehabilitation plan. Evidence was taken and the Court, being fully advised in the premises, finds as follows:

I.

An award was previously entered in this cause on May 28, 2004, finding that Kathleen Stanfill had suffered injury by accident arising out of and in the course of her employment with Nash-Finch Company. The Court found at that time that the plaintiff had not yet achieved maximum medical improvement. By stipulation among all present parties, the Court finds that plaintiff has now achieved maximum medical improvement and has a 30 percent permanent functional impairment and/or loss of earning power.

II.

At issue for the Court to determine in this present hearing is the plaintiff’s entitlement to the vocational rehabilitation plan that has been proposed by Mr. Utley. The parties have stipulated that David Utley was the counselor agreed upon for the purpose of evaluating the plaintiff’s entitlement to vocational rehabilitation services. The Court has read Mr. Utley’s justification for the plan proposed and is persuaded that the plaintiff will require formal training given her physical restrictions, scope of her prior experience and the unavailability of employment without formal training at a wage level that would restore the plaintiff to suitable employment.

III.

The plaintiff argues that the plan developed by Mr. Utley is imbued with a rebuttable presumption that it is an appropriate form of vocational rehabilitation. However, one of the requisites for such a rebuttable presumption is that the plan be approved by a vocational rehabilitation specialist of the compensation court. It is precisely because a vocational rehabilitation specialist of the compensation court did not approve Mr. Utley’s plan that we are conducting the present hearing. It is thus obvious that there is no presumption that arises.

IV.

However, the Court has reviewed the e-mail sent to Mr. Utley by Rachel Mulcahy, the Court’s vocational rehabilitation specialist, after Ms. Mulcahy’s receipt of the plan (E21); has read Mr. Utley’s reply thereto which is Exhibit 22; has read the further letter of Ms. Mulchay to Mr. Utley which is Exhibit 25 and has read Exhibit 23, Mr. Utley’s response. The Court is persuaded that Mr. Utley has complied with the rules of the Court and has established the need for formal training and specifically the training set out in Exhibit 21. The Court finds that such plan should be approved.

IT IS SO ORDERED.

Dated at Lincoln, Lancaster County, Nebraska, on this 15th day of September, 2006.

NEBRASKA WORKERS’ COMPENSATION COURT

/s/Michael P. Cavel
JUDGE