## Facts

- Robert Lowe suffered a compensable workplace injury in 2001 while employed by Drivers Management, Inc. (DMI), resulting in neck and radicular arm pain.
- Lowe filed for workers’ compensation benefits. In an initial award entered February 11, 2004, the Nebraska Workers’ Compensation Court awarded him permanent partial disability benefits based on a 70% loss of earning capacity.
- The 2004 award also approved a vocational rehabilitation plan calling for job placement services and ordered Lowe to participate in that plan.
- A vocational rehabilitation counselor attempted to contact Lowe several times to provide the job-placement services, leaving multiple telephone messages and sending a letter dated March 12, 2004, asking Lowe to call her. Lowe did not respond and did not use the services.
- A few months later, Lowe began treating with a new doctor due to increased pain and filed an application to modify the 2004 award, alleging a material change in condition and seeking permanent total disability benefits.
- After the modification hearing, a single judge found (1) Lowe had refused, without reasonable cause, to participate in the court-ordered vocational rehabilitation plan during the period before the modification proceeding and reduced his benefits for that earlier period under Neb. Rev. Stat. § 48-162.01(7); and (2) Lowe had experienced a material change in condition and was permanently and totally disabled.
- The judge determined that Lowe’s permanent total disability provided reasonable cause for not participating in vocational rehabilitation after the modification proceeding and did not reduce benefits going forward.
- On review, a three-judge review panel affirmed the finding of permanent total disability but reversed the pre-modification benefit reduction.
- DMI appealed to the Nebraska Supreme Court. DMI argued the review panel wrongly reversed the reduction and also contended that if Lowe had taken part in job placement (which identified available jobs), he would have been working and could not have been found totally disabled.

## Issues

1. Whether competent evidence supported the trial judge’s finding that Lowe refused, without reasonable cause, to participate in court-ordered vocational rehabilitation, permitting a reduction of benefits for the pre-modification period under Neb. Rev. Stat. § 48-162.01(7).
2. Whether the review panel exceeded its authority by reversing the reduction despite the trial judge’s findings being supported by competent evidence.

## Decision

- The Nebraska Supreme Court reversed the review panel only to the extent it set aside the trial judge’s reduction of benefits under § 48-162.01(7) for the period before the modification proceeding.
- The Court held the record contained competent evidence that Lowe failed to participate in the approved job-placement plan and that the trial judge could find the failure was without reasonable cause for that earlier period.
- The Court affirmed the review panel in all other respects, leaving intact the determination that Lowe was permanently and totally disabled and entitled to permanent total disability benefits.

## Legal Principles

- Neb. Rev. Stat. § 48-162.01(7) authorizes the Workers’ Compensation Court to reduce compensation for any period in which an employee refuses, without reasonable cause, to undertake or continue vocational rehabilitation services that are offered under a court-approved plan.
- A workers’ compensation judge’s factual findings will be upheld on appeal if supported by competent evidence; an appellate tribunal may not reweigh evidence or substitute its own view of the facts.
- A benefit reduction under § 48-162.01(7) may be limited to the time period when the refusal occurred; a later change in medical status (including a later finding of permanent total disability) can supply reasonable cause prospectively even if it does not excuse earlier nonparticipation.

## Conclusion

Lowe v. Drivers Management holds that when competent evidence shows a worker ignored a court-approved vocational rehabilitation job-placement plan without reasonable cause, the Workers’ Compensation Court may reduce benefits for that period under § 48-162.01(7), and a review panel may not reverse that reduction simply by reassessing the record; the Supreme Court therefore reinstated the pre-modification reduction while affirming Lowe’s later award of permanent total disability benefits.


Lowe v. Drivers Management, 274 Neb. 732, 743 N.W.2d 82 (2007)