Variano v. Dial Corp.
| Decision Date | 26 February 1999 |
| Docket Number | No. S-98-712,S-98-712 |
| Citation | 256 Neb. 318,589 N.W.2d 845 |
| Parties | Ronald VARIANO, appellant, v. DIAL CORPORATION, appellee. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Workers' Compensation: Appeal and Error. Pursuant to Neb.Rev.Stat. § 48-185 (Reissue 1998), an appellate court may modify, reverse, or set aside a Workers' Compensation Court decision only when (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. Regarding questions of law, an appellate court in workers' compensation cases is obligated to make its own determinations.
3. Workers' Compensation: Presumptions. The only opinion regarding vocational rehabilitation or loss of earning power entitled to a rebuttable presumption pursuant to Neb.Rev.Stat. § 48-162.01(3) (Reissue 1998) is that of a vocational rehabilitation counselor chosen or selected by the procedures set forth in § 48-162.01(3).
4. Workers' Compensation: Words and Phrases. The phrase "loss-of-earning-power evaluation" in Neb.Rev.Stat. § 48-162.01(3) (Reissue 1998) refers to a process as opposed to a document.
5. Presumptions: Proof: Words and Phrases. A rebuttable presumption is generally defined as a presumption that can be overturned upon the showing of sufficient proof.
6. Workers' Compensation: Rules of Evidence: Presumptions: Proof. Pursuant to Neb. Evid. R. 301, Neb.Rev.Stat. § 27-301 (Reissue 1995), in all cases not otherwise provided for by statute or by such rules, a presumption imposes on the party against whom it is directed the burden of proving that the nonexistence of the presumed fact is more probable than its existence. This rule applies to the rebuttable presumption that an opinion regarding loss of earning capacity expressed by a vocational rehabilitation counselor appointed or selected pursuant to Neb.Rev.Stat. § 48-162.01(3) (Reissue 1998) is correct.
7. Workers' Compensation. Workers' compensation benefits awarded pursuant to Neb.Rev.Stat. § 48-121(2) (Reissue 1998) are not measured by loss of bodily function, but by reduction in earning power or employability.
8. Workers' Compensation: Words and Phrases. Earning power, as used in Neb.Rev.Stat. § 48-121(2) (Reissue 1998), is not synonymous with wages, but includes eligibility to procure employment generally, ability to hold a job obtained, and capacity to perform the tasks of the work, as well as the ability of the worker to earn wages in the employment in which he or she is engaged or for which he or she is fitted.
Thomas F. Dowd, of Dowd & Dowd, Omaha, for appellant.
Thomas D. Wulff and Kevin L. Flynn, of Welch & Wulff, Omaha, for appellee.
In this workers' compensation case, each party claims the benefit of a rebuttable presumption pursuant to Neb.Rev.Stat. § 48-162.01 (Reissue 1998), based upon seemingly inconsistent opinions regarding loss of earning power expressed by the same court-appointed vocational rehabilitation counselor. We conclude that when considered together in their chronological sequence, the counselor's opinions establish a rebuttable presumption that the employee sustained a total loss of earning power as a result of his compensable injury and that the evidence is insufficient as a matter of law to rebut the presumption.
On May 8, 1995, Ronald Variano sustained an injury to his back after lifting a 50-pound container during the course of his employment with Dial Corporation. He has not been employed since that time. Variano was examined by his primary care physician, Dr. Karen Stacey, on May 11, 1995. Dr. Stacey diagnosed a lumbar sacral back strain with right sciatica. While continuing with Variano's overall care, Dr. Stacey referred Variano to Dr. Richard Belatti for pain management and Drs. Frank P. LaMarte and D.M. Gammel for evaluation.
Variano was paid temporary total disability benefits from May 9, 1995, through November 11, 1996. On July 12, 1996, at the request of Variano and Dial's workers' compensation carrier, the workers' compensation court appointed Richard Metz, a vocational counselor, to determine the extent of Variano's loss of earning power. Metz submitted a report dated September 11, 1996 (hereinafter September report), in which he stated that Variano required vocational rehabilitation services and "will have sustained a loss of earning power of 25%-30%" as a result of his work-related injury. This report cited a 10-percent impairment rating given by Dr. Gammel and a 7-percent impairment rating from Dr. LaMarte. The report also identified, based on a functional capacity evaluation completed by Dr. Gammel on January 15, Variano's known functional restrictions and limitations.
After submitting the September report, Metz continued working toward identifying a specific vocational goal which would restore Variano to suitable work. Before completing this process, Metz requested clarification from Dr. Stacey concerning Variano's functional impairments and restrictions. Dr. Stacey eventually provided Metz with a physical capacities evaluation which differed slightly from the functional capacity evaluation completed by Dr. Gammel. After receiving this information from Dr. Stacey, Metz completed his vocational analysis and concluded in a February 23, 1997, letter report that Variano would not benefit from vocational rehabilitation.
On March 4, 1997, Variano's attorney wrote a letter to Metz, with a copy to Dial's workers' compensation carrier, requesting clarification of Metz' opinion regarding Variano's loss of earning power. The letter stated in relevant part:
I familiarized myself with your report of September 11, 1996 and your recent letter of February 23, 1997. It appears from a review of the most recent letter that you have now concluded based on Dr. Stacey's functional restrictions and limitations that Mr. Variano is not able to engage in substantial competitive employment and that vocational rehabilitation would be of no benefit in this regard. In short, it appears that based on the limitations imposed by Dr. Stacey since your September 11, 1996 report, his loss of earning power is now 100% as opposed to the earlier opinion of 25-30%.
On March 28, 1997, Metz responded by letter (hereinafter March letter), stating in relevant part:
It is my opinion that Mr. Variano would not be able to earn wages in the same kind of work, or work of a similar nature, that he was trained for, or accustomed to perform, or any other kind of work which a person of his mentality or attainments could do. While he could obtain trivial occasional employment under rare conditions and at small remuneration, I do not believe that vocational rehabilitation would do much, if anything, to improve that situation. Therefore, it is my opinion that he would not benefit from vocational rehabilitation services and is totally disabled as a result of his injury.
In your letter, you asked me to reconsider or to reevaluate the loss of earning power assessment which I had previously prepared. Unfortunately, I am unable to do so at this time. It has been the Court's policy to require the requestor to pay the costs associated with having the agreed upon or appointed counselor reassess or reconsider his previously submitted loss of earning power evaluation report. Therefore, unless Mr. Variano is willing to pay for any additional review or reconsideration of the loss of earning power evaluation--or Liberty Mutual insurance is willing to assume this expense--I am unable to honor your request. For me to do as you have requested and bill the insurer for this action would be unfair and contrary to the Court's policy regarding such action.
I hope I have answered your question and, at the same time, effectively explained why I am unable to go back and "rebut" my own loss of earning power evaluation.
At the time of his injury, Variano was earning $422 per week. Following his injury, he received temporary total disability benefits of $281.33 per week for 79 weeks. He then began receiving permanent partial disability benefits in the amount of $84.40 per week for 221 weeks based upon a 30-percent loss of earning power.
In reliance on the opinions expressed by Metz in his March letter, Variano filed a petition with the Workers' Compensation Court, requesting the payment of total disability benefits from and after November 12, 1996, plus a waiting penalty and attorney fees. Dial filed a third-party petition, asserting that the State of Nebraska, Second Injury Fund, was liable for a portion of Variano's claim on the basis of preexisting disabilities. The trial judge, relying on Metz' September report, found that Variano was not totally disabled and had sustained only a 30-percent loss of earning capacity. In addition, the trial judge found that Dial had failed to prove liability on the part of the Second Injury Fund and dismissed therefore its third-party claim. Variano requested review by a three judge panel of the Workers' Compensation Court, which affirmed the trial court's findings. Variano perfected this appeal, which we removed to our docket on our own motion pursuant to our authority to regulate the caseloads of the appellate courts. Dial did not seek review of the trial court's order dismissing the Second Injury Fund, and accordingly that issue is not before us.
Variano asserts, restated, that the Workers' Compensation Court erred factually and as a matter of law in disregarding the opinion of Metz that Variano was totally disabled.
Pursuant to Neb.Rev.Stat. § 48-185 (Reissue 1998), an appellate...
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