Visoso v. Cargill Meat Solutions

• Decision Date: 22 February 2013
• Docket Number: No. S–12–038.,S–12–038.
• Citation: 826 N.W.2d 845,285 Neb. 272
• Parties: Odilon VISOSO, also known as Adam Rodriguez, appellant, v. CARGILL MEAT SOLUTIONS, appellee.
• Court: Nebraska Supreme Court

285 Neb. 272

826 N.W.2d 845

Odilon VISOSO, also known as Adam Rodriguez, appellant,

v.CARGILL MEAT SOLUTIONS, appellee.

No. S–12–038.

Supreme Court of Nebraska.

Feb. 22, 2013.

Syllabus by the Court

[285 Neb. 272]1. 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. With respect to questions of law in workers' compensation cases, an appellate court is obligated to make its own determination.

3. 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 will not be disturbed unless clearly wrong.

4. Workers' Compensation: Proof. In a proceeding to modify a prior workers' compensation award, the employer has the burden of establishing a decrease of incapacity and the employee has the burden of establishing an increase.

5. Workers' Compensation. Temporary disability benefits should be paid only to the time when it becomes apparent that the employee will get no better or no worse because of the injury.

[285 Neb. 273]6. Workers' Compensation. Temporary disability benefits are discontinued at the point of maximum medical improvement, because a disability cannot be both temporary and permanent at the same time.

7. Workers' Compensation: Words and Phrases. An undocumented employee is an “employee” or “worker” who is covered under the Nebraska Workers' Compensation Act.

8. Workers' Compensation. The Workers' Compensation Court cannot order vocational retraining without determining that the worker's postinjury physical restrictions and vocational impediments prevent the worker from complying with all of the lower work priorities in Neb.Rev.Stat. § 48–162.01(3) (Reissue 2010).

9. Workers' Compensation. If an injured employee is ineligible for the lower work priorities in Neb.Rev.Stat. § 48–162.01(3) (Reissue 2010) because the employee cannot be legally placed with the same employer or a new employer, then the compensation court cannot order retraining for a new career.

10. Workers' Compensation. Unlike vocational retraining benefits, there are no prioritized goals that must be satisfied before a court can award indemnity for an employee's loss of earning capacity.

11. Workers' Compensation. Both before and after an employee's maximum medical improvement, an employee's disability as a basis for compensation under Neb.Rev.Stat. § 48–121(1) and (2) (Reissue 2010) is determined by the employee's diminution of employability or impairment of earning power or earning capacity.

12. Workers' Compensation. An employee's impairment of earning capacity does not depend on a finding that the employee cannot be placed in a job with the same employer or in a job with a different employer.

13. Workers' Compensation. An employee's illegal residence or work status does not bar an award of indemnity for permanent loss of earning capacity.

14. Workers' Compensation. For purposes of workers' compensation, the risk of hiring an undocumented alien falls on the employer to cover the associated costs if that worker is injured during the scope of employment.

15. Workers' Compensation. The Nebraska Workers' Compensation Act is designed to compensate an injured worker for two distinct losses resulting from a work-related injury or occupational disease: the loss of earning capacity based on the concept of disability and medical and other costs associated with the injury or disease.

16. Workers' Compensation. Because the purpose of the Nebraska Workers' Compensation Act is to compensate injured workers for injuries regardless of immigration status, the act can be applied to all workers, whether legally hired or not.

17. Workers' Compensation. If a workers' compensation claimant in good faith relocates to a new community, the new community may serve as the hub community from which to assess the claimant's loss of earning power.

18. Workers' Compensation. The first step in identifying the relevant labor market for assessing a worker's loss of earning power is to determine whether the hub community is where the injury occurred, or where the claimant resided when the injury occurred, or where the claimant resided at the time of the hearing.

19. Workers' Compensation. The Nebraska Workers' Compensation Act should be construed to accomplish its beneficent purposes.

[285 Neb. 274]20. Workers' Compensation. If sufficient credible data exists for a determination of an undocumented worker's loss of earning capacity in his or her community of origin and the worker has moved for legitimate purposes, and not to increase workers' compensation benefits, then the community of origin may serve as the hub community.

21. Workers' Compensation. A workers' compensation award cannot be based on possibility or speculation, and if an inference favorable to the claimant can be reached only on the basis thereof, then the claimant cannot recover.

Ryan C. Holsten, of Atwood, Holsten, Brown & Deaver Law Firm, P.C., L.L.O., Lincoln, for appellant.

Caroline M. Westerhold and Colin A. Mues, of Baylor, Evnen, Curtiss, Grimit & Witt, L.L.P., Lincoln, for appellee.

HEAVICAN, C.J., WRIGHT, CONNOLLY, STEPHAN, McCORMACK, and MILLER–LERMAN, JJ.

WRIGHT, J.

NATURE OF CASE

In 2006, Odilon Visoso, an undocumented worker, was injured in the course and scope of his employment with Cargill Meat Solutions (Cargill). Following a trial in 2008, he was awarded temporary total disability benefits.

In 2011, Cargill petitioned the Nebraska Workers' Compensation Court to discontinue the temporary total disability benefits, because Visoso had reached maximum medical improvement. While the action was pending in the compensation court, Visoso returned to Mexico, his country of origin. Vocational rehabilitation experts who testified at the hearing on Cargill's petition were unable to provide credible evidence of Visoso's loss of earning capacity based upon prospective employment in Mexico. The compensation court concluded that Cargill's obligation to pay Visoso temporary total disability should cease because Visoso had reached maximum medical improvement. The court declined to award Visoso benefits for his claim of permanent impairment and loss of earning capacity. Visoso appealed.

SCOPE OF REVIEW

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. Sellers v. Reefer Systems, 283 Neb. 760, 811 N.W.2d 293 (2012).

With respect to questions of law in workers' compensation cases, an appellate court is obligated to make its own determination. Lovelace v. City of Lincoln, 283 Neb. 12, 809 N.W.2d 505 (2012).

On appellate review of a workers' compensation award, the trial judge's factual findings have the effect of a jury verdict and will not be disturbed unless clearly wrong. Bassinger v. Nebraska Heart Hosp., 282 Neb. 835, 806 N.W.2d 395 (2011).

FACTS

Visoso, also known as Adam Rodriguez, began working for Cargill in Schuyler, Nebraska, in March 2006. On May 9, Visoso suffered an injury when a 200–pound quarter of beef fell off an overhead conveyor and landed on his head. He was initially treated with numerous noninvasive treatments but eventually had surgery on his neck on October 4, 2007. Shortly after his surgery, he was fired by Cargill when it discovered he was an undocumented alien not authorized to work in the United States.

Following a trial, the compensation court found that Visoso sustained a compensable injury that rendered him temporarily totally disabled and awarded him a running award of temporary total indemnity and payment for future medical care. No determination was made regarding Visoso's loss of earning capacity or eligibility for permanent indemnity benefits. The Nebraska Court of Appeals affirmed the award of temporary total disability. See Visoso v. Cargill Meat Solutions, 18 Neb.App. 202, 778 N.W.2d 504 (2009).

On March 8, 2011, Cargill petitioned the compensation court for modification of the award. It stated that more than 6 months had elapsed since the entry of the award and that Visoso had reached maximum medical improvement. Visoso admitted that he had reached maximum medical improvement, but denied that he experienced a decrease in incapacity and denied that he should no longer receive temporary total disability. The parties agreed to the appointment of Karen Stricklett as the vocational rehabilitation counselor to provide a report of Visoso's loss of earning capacity, if any.

Stricklett prepared a preliminary loss of earning capacity analysis regarding Visoso's loss of earning power in the Schuyler area. She prepared a followup report in which she noted Visoso's imminent return to Mexico and her attempt to conduct a loss of earning capacity analysis for Chilpancingo, Guerrero, Mexico, the largest city near Chichihualco, which is the town where Visoso would be living and which is also in Guerrero. Stricklett concluded she needed outside help to better analyze the labor market in Mexico. Visoso moved to compel labor market research, because Stricklett was unable to perform such research in Chilpancingo without outside help and Cargill refused to pay for the additional...