Moyera v. Quality Pork Int'l
| Decision Date | 04 January 2013 |
| Docket Number | No. S–12–208.,S–12–208. |
| Parties | Ricardo MOYERA, also known as David Gutierrez, appellee, v. QUALITY PORK INTERNATIONAL, appellant. |
| Court | Nebraska Supreme Court |
OPINION TEXT STARTS HERE
Syllabus by the Court
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.
Workers' Compensation:
Appeal and Error.
On appellate review of a workers' compensation award, the trial judge's factual findings have the effect of a jury verdict, and an appellate court will not disturb those findings unless they are clearly wrong.
3.
Workers' Compensation:
Appeal and Error.
An appellate court independently reviews questions of law decided by a lower court.
4. Statutes. Statutory interpretation presents a question of law.
5.
Workers' Compensation: Statutes:
Appeal and Error.
The Nebraska Workers' Compensation Act provides benefits for employees who are injured on the job, and an appellate court broadly construes the act to accomplish this beneficent purpose.
[284 Neb. 964]6. Statutes: Appeal and Error. Absent a statutory indication to the contrary, an appellate court gives words in a statute their ordinary meaning.
7. Statutes: Legislature: Intent: Appeal and Error. An appellate court will not look beyond a statute to determine the legislative intent when the words are plain, direct, or unambiguous.
8. Workers' Compensation: Contracts. The Nebraska Workers' Compensation Act applies to undocumented employees under a contract of hire with a covered employer in this state.
9. Workers' Compensation. Under Neb.Rev.Stat. § 48–162.01(3) (Reissue 2010), the Workers' Compensation Court cannot order vocational retraining without determining that a worker's postinjury physical restrictions and vocational impediments prevent the worker from complying with all of the statute's lower work priorities.
10. Workers' Compensation. An employee's illegal residence or work status does not bar an award of indemnity for permanent total loss of earning capacity.
11. Workers' Compensation: Proximate Cause. Whether an employee's scheduled member loss has caused a whole body impairment is properly resolved under a proximate cause inquiry at the point of the employee's maximum medical improvement, when the employee's permanent impairment is assessed.
12. Proximate Cause: Words and Phrases. A proximate cause is a cause that produces a result in a natural and continuous sequence and without which the result would not have occurred.
13. Workers' Compensation: Proximate Cause. If, by the point of maximum medical improvement, an employee has developed a whole body impairment in addition to a scheduled member injury, the question is whether the work-related injury proximately caused the whole body impairment. If both injuries arose from the same work-related injury, because the scheduled member injury resulted in the whole body impairment in a natural and continuous sequence of events and the whole body impairment would not have occurred but for the work-related injury, then the claimant is entitled to disability benefits for the whole body impairment.
14. Workers' Compensation. Whether an employee's compensable scheduled member injury has resulted in a whole body impairment and loss of earning power is a question of fact.
15. Workers' Compensation: Expert Witnesses: Presumptions. The opinion of a court-appointed vocational rehabilitation expert regarding loss of earning power has a rebuttable presumption of validity.
Joseph W. Grant, of Hotz, Weaver, Flood, Breitkreutz & Grant, Omaha, for appellant.
Michael P. Dowd, of Dowd, Howard & Corrigan, L.L.C., Omaha, for appellee.
In this workers' compensation case, the primary issue is whether the appellee, Ricardo Moyera, an illegal alien, is entitled to benefits for permanent total loss of earning power. The trial judge awarded these benefits, and the review panel affirmed. We conclude that because the Nebraska Workers' Compensation Act (Act) 1 applies to illegal aliens working for a covered employer in this state, these employees are entitled to permanent total disability benefits (PTD benefits) for work-related injuries. We affirm.
The parties stipulated that Moyera was injured in an accident arising out of and in the course of his employment with Quality Pork International (QPI). Moyera is from Mexico and cannot speak English. He is not a legal resident. He started working for QPI in March 2007. His other work history consisted of working as a laborer on a roofing crew and working with his father in Mexico as a crop fertilizer. He purchased papers to obtain work at QPI, which was the first time that he used the name “David Gutierrez.”
In August 2008, Moyera's right foot was run over by a forklift. He was age 29. The forklift broke several bones across the top of his foot. QPI placed him in a light-duty janitorial position, cleaning the cafeteria, which allowed him to elevate his foot above his waist whenever it swelled. A personnel officer testified that she knew of no other regularly performed position in the plant that would allow an employee to elevate his feet like this; most of the jobs were for production, and QPI expected employees to meet a quota and work at a required pace. Moyera performed the light-duty work until May 2010, when QPI discharged him.
After the accident, QPI had directed Moyera to see Dr. Alan Jensen. The initial x rays did not show fractures. But an MRI and bone scan later revealed multiple bone fractures. Jensen and other physicians diagnosed Moyera with complex regional pain syndrome to the right foot, which syndrome is also called reflex sympathetic dystrophy and is a type of nerve disorder. Nerve blocks failed to relieve Moyera's pain, which required him to take narcotic pain medications. The pain resulted in a moderate gait derangement, which caused him pain in his hips and lower back. He walked with a crutch, and then a cane. No surgical treatment of the foot was indicated.
On May 18, 2010, Jensen responded to a questionnaire from Moyera's attorney that Moyera's injury, and its resulting nerve disorder and gait derangement, had resulted in a permanent 10–percent whole body impairment. He recommended a functional capacity evaluation. About this same time, QPI's insurance carrier informed QPI that on May 21, it would terminate payments for Moyera's temporary partial disability benefits and start paying permanent partial disability benefits.
After QPI learned this information, its personnel manager audited QPI's employment files and determined that Moyera did not have proper immigration documents. QPI discharged Moyera on May 28, 2010, after he could not produce proper documentation to show that he could legally work in the United States. The personnel manager denied that the immigration audit was related to learning that its insurance carrier would start paying Moyera permanent disability benefits; she stated that QPI also discharged other employees for lack of documentation. She claimed that Moyera's work restrictions were consistent with the work that he was performing (cleaning the cafeteria tables) when QPI discharged him and that if he had produced the proper documents, he would have been retained in that position.
But in response to the judge's questions, the personnel manager admitted that the cafeteria cleaning position had only existed as a temporary position for employees recovering from an injury. And she admitted that the night shift janitor who was currently cleaning the cafeteria performed other janitorial duties.
In July 2010, a physical therapist performed a functional capacity evaluation of Moyera. The test results put Moyera in the sedentary work category, with a 10–pound maximum lift limit. The therapist noted that Moyera used a cane and walked with a limp. On August 6, Jensen opined that Moyera had reached his maximum medical improvement as of that date. He concluded that Moyera had sustained a permanent 20–percent whole body impairment,which restricted him to sedentary work.
In October 2010, a rehabilitation consultant, Karen Stricklett, performed a loss of earning capacity analysis for Moyera. She concluded that Moyera did not possess transferable skills that would qualify him for sedentary jobs in the Omaha labor market. Because of his permanent restrictions and his inability to speak English, she concluded that he was not competitively employable and had experienced a 100–percent loss of earning capacity.
QPI then produced counteropinions from a different physical therapist and physician. Its physical therapist performed another functional capacity evaluation. He believed that Moyera could stand for 30 to 40 minutes before needing to sit and that he could stand or walk for 4 to 5 hours in an 8–hour day. He stated that Moyera could perform work in the medium physical demand category. QPI's physician concluded that while Moyera still had pain in his foot, it was ongoing pain from his healed fractures, and that he no longer had any symptoms associated with the nerve disorder. She concluded that Moyera had a 3–percent impairment to his right foot and that his gait derangement should not be considered in combination with more specific impairment ratings for making a whole body impairment determination.
After Stricklett received these opinions, she issued a supplemental analysis of Moyera's loss of earning capacity. She stated in the report that the personnel manager had told her...
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