Yager v. Bellco Midwest
| Decision Date | 11 January 1991 |
| Docket Number | No. 90-175,90-175 |
| Citation | 236 Neb. 888,464 N.W.2d 335 |
| Parties | Michael R. YAGER, Appellant, v. BELLCO MIDWEST, Appellee. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Workers' Compensation: Appeal and Error. Findings of fact made by the Nebraska Workers' Compensation Court after rehearing have the same force and effect as a jury verdict in a civil case and will not be set aside on appeal unless clearly wrong.
2. Workers' Compensation. Whether an injured worker is entitled to vocational rehabilitation is ordinarily a question of fact to be determined by the Workers' Compensation Court.
3. Workers' Compensation: Appeal and Error. An order based on findings of fact made by the compensation court may be reversed if those findings do not support the court's order. Neb.Rev.Stat. § 48-185(4) (Reissue 1988).
4. Workers' Compensation: Appeal and Error. To determine whether findings of fact made by the compensation court support an order granting or denying vocational rehabilitation benefits, the Supreme Court must consider the findings of fact in light of the statute authorizing vocational rehabilitation benefits, Neb.Rev.Stat. § 48-162.01 (Reissue 1988).
5. Workers' Compensation: Appeal and Error. The Nebraska Supreme Court is obligated in workers' compensation cases to make its own determinations as to questions of law.
6. Workers' Compensation. A finding that a workers' compensation claimant currently maintains a minimum-wage job is not, in and of itself, sufficient to support a denial of vocational rehabilitation benefits.
7. Workers' Compensation. Loss of earning capacity or earning power is relevant only to impairment of the body as a whole. Impairment to a scheduled member is measured on the basis of loss of physical function. Neb.Rev.Stat. § 48-121 (Reissue 1988).
Dennis C. Magnuson, of Gast & Peters, Omaha, for appellant.
Jon S. Reid, of Kennedy, Holland, DeLacy & Svoboda, Omaha, for appellee.
Plaintiff, Michael R. Yager, appeals from an order on rehearing by the Workers' Compensation Court. The order reduced certain awards made by the court on first hearing. We reverse and remand on the issue of rehabilitation benefits and affirm in certain other respects.
Plaintiff was employed by defendant-appellee Bellco Midwest as a construction worker. At the time of the accident in this case, plaintiff was 28 years old. He had dropped out of high school after the 10th grade and had received a GED in 1988 without the necessity of classroom work. He had worked in "warehousing" in loading and unloading trucks and, at one time, had been an assistant supervisor. He had also worked in a packinghouse and for other construction companies, as well as for Bellco. He had been employed by Bellco for over a year as of the date of the accident. He had also served about a year in the U.S. Navy.
Plaintiff was injured at defendant's construction site on July 29, 1985, when a section of wall he was helping to lift into place broke loose and fell on his leg. The accident resulted in a fractured right femur and internal derangement of the right knee. Plaintiff's recovery was slow because of a delayed union of the femur. On September 10, 1985, Dr. Chester Waters performed a closed intramedullary rodding operation on plaintiff. Intramedullary rodding was required to achieve stability in the leg. On September 19, plaintiff was discharged from the hospital. For a period of over 9 months, plaintiff needed either a wheelchair or crutches to get around. On April 17, 1986, arthroscopic surgery was performed on plaintiff's right knee.
In a July 30, 1986, letter concerning plaintiff, Waters estimated "a permanent partial impairment to the right lower extremity of approximately 40-50 percent based on quadriceps adhesion and resulting loss of knee motion from his femur fracture...." In a report dated November 5, 1986, Waters summarized plaintiff's injuries as "a closed fracture of the right femur, and post traumatic tibial articular chondromalacia." He set out certain limitations and stated that no further treatment was recommended and that "[w]ork capacity restrictions are permanent." He stated in a corrected report that this resulted in a 45-percent permanent partial physical impairment to the right lower extremity. Waters made no reference to any back injury. He released plaintiff "for work activity" effective November 1, 1986.
Plaintiff testified that after the period of time when he was on crutches or in a wheelchair, he began to experience pain in his lower back. He testified that he had told Waters and others in Waters' office of his back problem, but that they did not record the complaints. Nothing in the reports of Waters found in the record before this court shows any indication of back problems.
On February 20, 1987, plaintiff saw Dr. Timothy Fitzgibbons. Fitzgibbons' report of that date is the first recorded evidence of plaintiff's back trouble. Over the course of the next year Fitzgibbons treated plaintiff's back. Fitzgibbons stated that plaintiff reached maximum medical improvement on May 2, 1988, and stated that plaintiff had a permanent impairment rating of 5 percent for his back strain, in addition to his right leg impairment.
During the 3 years following his accident, plaintiff participated in a variety of different tests, analyses, and evaluations, both through the Nebraska Division of Rehabilitation Services and through a private rehabilitation consultant hired by defendant. Due to disagreements between the parties, and because of plaintiff's frustration at not being able to begin a rehabilitation program, plaintiff hired his own rehabilitation consultant.
On August 18, 1988, plaintiff filed this petition seeking temporary total disability, permanent partial disability, and rehabilitation benefits because of his leg and back injuries. Defendant denied there was a back injury, denied that plaintiff was entitled to rehabilitation benefits, and alleged that all expenses incurred due to the leg injury had been paid.
At the first hearing, the one-judge compensation court found compensable injuries to plaintiff's leg and back. The court awarded temporary total disability benefits from July 29, 1985, through November 21, 1988, and awarded 50 percent temporary partial disability thereafter for an indeterminate period. The court also awarded rehabilitation benefits in the form of a 2-year business management training program.
Defendant appealed. On rehearing, on July 12, 1989, evidence was adduced on the rehabilitation issue, and plaintiff testified that in November 1988, he obtained employment at a gas station as a "drive attendant" for 31 hours per week at $3.35 per hour. At the time of the rehearing in July 1989, plaintiff held the same job.
At the hearing John Greene, an expert in vocational rehabilitation who had been employed by defendant and its insurance carrier, testified that plaintiff "had average learning capabilities on the testing, so he could have participated in a number of different [vocational rehabilitation] programs."
Another witness, who was an employee of the Nebraska Division of Rehabilitation Services, testified that plaintiff "had the ability to handle a two-year training program" and that such programs were available at Metropolitan Community College. This witness further testified that these plans were denied by defendant's insurance company and not implemented.
Another of plaintiff's witnesses testified that the proposed 2-year plan in business management would help in obtaining jobs and in obtaining promotions in such jobs.
Greene, when called as an expert witness by defendant, testified that plaintiff has This witness further testified:
Q Now, the jobs you just talked about, what's the entry level pay on a job like that?
A As I remember, it was about $5.50-to $8.20-an-hour, which would be after a training program was completed.
....
Q Would a training program like that increase his ability to gain access to the labor market?
A Sure, any time that we develop employable skills for him, that's going to increase his marketability.
This witness had some questions about the advisability of the 2-year business management program, and further testified on the question of the possible length of plaintiff's rehabilitation:
Q Is it true that a large part of that disagreement was also with the length of the program involved to rehabilitate Mike?
A Well, it wasn't on my part as far as looking at some kind of option. Iowa Mutual had asked us to look at six-month programs, but I had previously indicated a report that even up to two-year training programs would be appropriate for helping Mike.
Q So it's true that, while it was not necessarily your opinion that a six-month program would be best for Mike, that limitation was placed on your efforts by Iowa Mutual?
A They had requested that I explore six-month training programs. I didn't take it as a hard-and-fast rule that I couldn't go above six months. I took it more as, "Were there reasonable alternatives that would prepare him for employment using a six-month training approach?"
In its award on rehearing, the three-judge panel did not mention or allow any benefits for the back injury, shortened temporary total disability benefits to end November 1, 1986, and determined there was a 45-percent permanent partial disability to plaintiff's right leg. The court also refused to grant vocational rehabilitation, stating in part:
IV.
One of the issues listed in the Pretrial Order is whether plaintiff is entitled to rehabilitation services. The evidence is that plaintiff got a job on November 21, 1988, which he still retains. Therefore, he is not entitled to rehabilitation benefits.
....
VII.
Another issue listed by the parties in the...
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...to vocational rehabilitation is ordinarily a question of fact to be determined by the Workers' Compensation Court. Yager v. Bellco Midwest, 236 Neb. 888, 464 N.W.2d 335 (1991). The findings of fact made by the Workers' Compensation Court on original hearing have the effect of a verdict and ......
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