Antonio Araujo v. IBP, inc.

IBP, inc., appeals from an order of the review panel of the Nebraska Workers' Compensation Court, affirming in part the trial court's judgment in which it awarded Antonio Araujo benefits after finding Araujo permanently and totally disabled. The review panel reversed and remanded for clarification that portion of the trial court's order awarding Araujo temporary partial disability benefits. IBP appeals, and Araujo cross-appeals. For the reasons set forth below, we affirm.

BACKGROUND

On March 29, 2000, Araujo filed a petition stating that on September 23, 1998, he sustained injuries as a result of an accident arising out of and in the course of his employment with IBP. Trial was held on March 12, 2002.

At trial, the parties stipulated that on September 23, 1998, Araujo sustained injuries from an accident arising out of and in the course of his employment with IBP. The parties also stipulated that Araujo's average weekly wage was $358.47, at an hourly rate of $9.05.

The record shows that Araujo was born in Mexico on May 2, 1945, and that Araujo came to the United States in 1977. From 1977 to 1994, Araujo worked primarily as a musician. In 1995, Araujo accepted employment with IBP for approximately 11 months, moved to Arizona in 1996, and returned to Nebraska in February 1997 to work for ConAgra. In October 1997, Araujo became reemployed at IBP.

At trial, Araujo testified that on the date of his injury, he was lifting a 150-pound cowhide above his shoulders when he felt a "pop" in his lower back. On December 23, 1998, Araujo completed an MRI which showed degenerative disk changes with small bulges at two different levels in his neck. On January 20, 1999, Dr. David Cocerill performed surgery on Araujo's neck. The record shows that Araujo did not improve after surgery.

Araujo testified that after his surgery, he returned to work at IBP, counting cowhides and shredding paper. Subsequently, IBP sold the plant where Araujo worked, and Araujo was then out of a job.

On June 30, 1999, Dr. Kral Varhan issued a permanent impairment rating for Araujo of 5 percent. In October, a physical therapy clinic performed a functional capacity evaluation of Araujo. The evaluation stated that Araujo's functional abilities were at a light physical demand level, that is, restricted to occasional lifting and carrying up to 20 pounds and frequent lifting and carrying up to 10 pounds.

On October 1, 1999, the trial court appointed Margaret Covi to provide a loss of earning power report. Covi's report was dated January 17, 2000. In her report, Covi concluded that Araujo suffered a 34.4-to 41.8-percent loss of earning power, considering the fact that Araujo remained employed. On June 8, Covi issued a supplemental report which concluded that because Araujo had since become unemployed, his loss of earning power ranged from 38 to 45 percent.

On August 29, 2000, the trial court appointed Cherilyn Leversee to develop a vocational plan for Araujo. On September 26, 2001, the trial court entered an order, based upon a stipulation of the parties, to change the vocational rehabilitation counselor from Leversee to Jack Greene.

Greene filed a vocational rehabilitation plan on November 4, 2001. Greene's plan for Araujo sought 22 hours of English instruction per week. This plan began on November 26, 2001, and was scheduled to end on May 24, 2002. At trial, Greene testified that Araujo was making satisfactory progress with the plan, although further progress reports regarding Araujo's participation and motivation in the plan were negative. Greene did not prepare a loss of earning power evaluation for Araujo.

On February 7, 2002, Araujo offered a rebuttal loss of earning power report from Alfred Marchisio. After addressing Araujo's progress with Greene, Marchisio concluded that Araujo is "totally unemployable" because his vocational future is still uncertain and unpredictable.

On February 26, 2002, Greene reviewed Marchisio's report and stated, "[I]t is premature to conclude that . . . Araujo is 'totally unemployable,'" and further, "it is far from a reasonable conclusion that . . . Araujo will not continue to progress with his English as a Second Language training program."

On August 2, 2002, the trial court entered an award in favor of Araujo. Specifically, the trial court concluded that Araujo was (1) temporarily partially disabled from September 23 through December 22, 1998, and again from July 15 through September 17, 1999, during which time Araujo was entitled to a 100-percent loss of earning power; (2) temporarily totally disabled from December 23, 1998, through July 24, 1999; and (3) permanently and totally disabled thereafter. Furthermore, the trial court ordered IBP to provide and pay for Araujo's future medical care reasonably necessary as a result of Araujo's injuries. The trial court gave IBP credit for indemnity benefits and medical expenses IBP had paid. On August 16, 2002, IBP appealed.

On February 7, 2003, the review panel entered an order affirming in part and in part reversing and remanding. The review panel affirmed the trial court's order in its entirety except to reverse the trial court's award of temporary partial disability benefits. The review panel ordered that upon remand, the trial court should clarify whether Araujo was totally disabled instead of temporarily partially disabled during certain periods. IBP appeals, and Araujo cross-appeals.

ASSIGNMENTS OF ERROR

On appeal, IBP contends that the review panel erred in (1) finding that the opinions of the court-appointed vocational rehabilitation counselor were not entitled to a presumption of correctness and (2) finding that Araujo's disability is both permanent and total. IBP also argues that the review panel erred in failing to require the trial court to consider on remand whether IBP should be entitled to a credit for wages paid to Araujo as an offset against any temporary disability otherwise owed to Araujo.

In his cross-appeal, Araujo argues that the review panel erred in (1) reversing and remanding the trial court's award of temporary partial disability benefits and (2) failing to award Araujo attorney fees.

STANDARD OF REVIEW

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 did not support the order or award. Misek v. CNG Financial, 265 Neb. 837, 660 N.W.2d 495 (2003).

In determining whether to affirm, modify, reverse, or set aside a judgment of the Workers' Compensation Court review panel, a higher appellate court reviews the findings of fact of the single judge who conducted the original hearing; the findings of fact of the single judge will not be disturbed on appeal unless clearly wrong. Schwan's Sales Enters. v. Hitz, 263 Neb. 327, 640 N.W.2d 15 (2002). An appellate court is obligated in workers' compensation cases to make its own determinations as to questions of law. Larsen v. D B Feedyards, 264 Neb. 483, 648 N.W.2d 306 (2002).

ANALYSIS

Rebuttable Presumption--Vocational Rehabilitation Counselor.

On appeal, IBP argues that the trial court erred in finding that Covi's loss of earning power reports were not entitled to a presumption of correctness.

Under Neb. Rev. Stat. § 48-162.01(3) (Supp. 1999), a loss of earning power evaluation performed by a vocational rehabilitation counselor selected by the parties is entitled to a rebuttable presumption of correctness. Frauendorfer v. Lindsay Mfg. Co., 263 Neb. 237, 639 N.W.2d 125 (2002).

A "rebuttable presumption" is generally defined as "[a] presumption that can be overturned upon the showing of sufficient proof." Black's Law Dictionary 1186 (6th ed. 1990). "In all cases not otherwise provided for by statute or by these 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." Neb. Evid. R. 301, Neb. Rev. Stat. § 27-301 (Reissue 1995). The Nebraska Supreme Court has held that 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 § 48-162.01(3) is correct. Variano v. Dial Corp., 256 Neb. 318, 589 N.W.2d 845 (1999).

"[I]t is clear that in determining whether the presumption contained in § 48-162.01(3) has been rebutted, the single judge is required to make factual findings." Romero v. IBP, inc., 9 Neb. App. 927, 932, 623 N.W.2d 332, 336-37 (2001). In its order, the trial court found that Covi's presumption of correctness had been rebutted. Specifically, the court stated that although Covi found that jobs were available for Araujo in the Grand Island and Gibbon, Nebraska, area, the record did not support this finding. The trial court stated that it had reached this conclusion after weighing the reports from the three court-appointed counselors, in addition to Marchisio's rebuttal report.

The record contains sufficient evidence to support the trial court's determination that the presumption of correctness related to Covi's opinion was rebutted. The evidence shows that the figures used by Covi did not necessarily take into account Araujo's inability to speak English, that Covi made erroneous assumptions concerning the physical demand level of Araujo's job at IBP, and that Covi incorrectly applied the loss of earning power factors set out in Sidel v. Travelers Ins. Co., 205 Neb. 541, 288 N.W.2d 482 (1980). Given these factors, the trial court did not err in finding that the presumption of correctness was rebutted. Therefore, this assignment of error is without merit.

Permanent and Total Disability.

On appeal, IBP argues that the trial court erred in finding Araujo to be permanently and totally disabled. Specifically, IBP argues that the trial court erred in this regard because Araujo has only a 5-percent impairment rating to the body as a whole, because there are serious credibility issues as to Araujo's physical limitations, and because there is no evidence to suggest that Araujo could not return to work in the music industry. IBP also argues that the trial court erred in relying solely on Araujo's testimony regarding the degree of his disability.

Total disability does not mean a state of absolute helplessness, but means disablement of an employee to earn wages in the same kind of work, or work of a similar nature, that he or she was trained for or accustomed to perform, or any other kind of work which a person of his or her mentality and attainments could do. Brummer v. Vickers, Inc., 11 Neb. App. 691, 659 N.W.2d 838 (2003). Whether an injured worker is totally disabled is a question of fact which may be reversed upon appeal only if the finding of the Workers' Compensation Court is clearly wrong. Id. Given the evidence before us, we cannot find that the trial court was clearly wrong in finding Araujo permanently and totally disabled.

The Workers' Compensation Court does not need to depend on expert testimony to determine the degree of disability but instead may rely on the testimony of the claimant. Romero v. IBP, Inc., 9 Neb. App. 927, 623 N.W.2d 332 (2001). Araujo testified that he cannot communicate in English and that his native language is Spanish. The record shows that Araujo does not speak, read, or write English. Furthermore, the record shows that Araujo has only a third grade education. At trial, Araujo testified that he could no longer do the type of job he did for IBP and that he is unable to go back to his job as a musician because of his physical limitations.

Additionally, several vocational rehabilitation experts testified at trial, giving conflicting opinions regarding the extent of Araujo's disability. Marchisio opined that Araujo is permanently and totally disabled, while the others gave differing opinions. We note that it is the role of the Nebraska Workers' Compensation Court as the trier of fact to determine which, if any, expert witnesses to believe. Owen v. American Hydraulics, 258 Neb. 881, 606 N.W.2d 470 (2000). The Workers' Compensation Court is not required to take an expert's opinion as binding and may, as may any other trier of fact, either accept or reject such an opinion. Stansbury v. HEP, Inc., 248 Neb. 706, 539 N.W.2d 28 (1995). The trial court chose to believe Marchisio's opinion, and we will not overturn the court's decision.

Furthermore, although IBP argues that the trial court was clearly wrong in finding that Araujo cannot be permanently and totally disabled when his impairment rating is 5 percent, the term "impairment" is a medical assessment, while the term "disability" is a legal issue. Green v. Drivers Mgmt., Inc., 263 Neb. 197, 639 N.W.2d 94 (2002). Thus, the fact that Araujo has a 5-percent permanent partial impairment to the body as a whole does not mean that the trial court was clearly wrong in finding that Araujo is permanently and totally disabled. Therefore, given that the trial court did not err in finding Araujo permanently and totally disabled, this assignment of error is without merit.

Temporary Partial Disability Benefits.

On appeal, IBP argues that the review panel erred in concluding that Araujo may be entitled to a 100-percent loss of earning power during periods of temporary partial disability when Araujo was working and earning wages or, in the alternative, in failing to credit IBP for wages paid during these periods. In his cross-appeal, Araujo argues that the review panel erred in reversing and remanding the trial court's award of temporary partial disability benefits and in failing to award Araujo attorney fees.

In the trial court's order, it awarded Araujo the same amount for both temporary partial disability and temporary total disability. The trial court stated that it had done so because during Araujo's periods of temporary partial disability, he had a 100-percent loss of earning power.

In its order, the review panel stated, "We are puzzled by [the trial court]'s finding of 'temporary partial disability' and [its] use of the term 'temporarily partially disabled' when [it] awards to [Araujo] temporary total disability benefits." The review panel also noted the trial court's finding that Araujo was temporarily partially disabled was clearly erroneous in light of the court's finding that Araujo is an odd-lot employee, since during his period of temporary partial disability, Araujo never progressed to working more than 4 hours a day at jobs which do not exist in the general labor market.

The review panel remanded to the trial court for clarification and for a finding that Araujo was always totally disabled while he was temporarily disabled, if that was the court's intention. Regarding whether IBP was entitled to a credit for wages it had paid Araujo during this period, the review panel stated that the error assigned by IBP was not broad enough to require the trial court to address that error. After reviewing the trial court's order, we agree with the review panel that the issue of temporary disability benefits ought to be remanded to the trial court for clarification; therefore, we find that neither IBP's nor Araujo's assignments of error have any merit.

Attorney Fees.

In his cross-appeal, Araujo also argues that if this court reverses the review panel's decision and affirms the decision of the trial court, he is entitled to attorney fees for his attorney's services before the review panel. Although we are affirming the review panel's decision, we determine that Araujo may have been entitled to attorney fees before the review panel, given that IBP failed to obtain any reduction in the amount of Araujo's award. See Neb. Rev. Stat. § 48-125(1) (Cum. Supp. 2002). We note, though, that because Araujo did not request attorney fees at the review panel level, we do not find that Araujo is entitled to such fees. Thus, Araujo's assignment of error on cross-appeal is without merit.

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Click the case caption above for the full text
of the Court's opinion.

After reviewing the record, we conclude that the trial court did not err in finding that Covi's opinions were not entitled to a presumption of correctness or in finding that Araujo's disability is both permanent and total.

Additionally, we conclude that the review panel did not err in remanding the trial court's award of temporary partial disability benefits in order for the trial court to clarify its award, nor did the review panel err in failing to grant Araujo attorney fees. Therefore, we affirm in its entirety the review panel's order affirming in part and in part reversing, and remanding that portion of the trial court's award regarding temporary partial disability benefits.

Affirmed in favor of Defendent.

Margaret Covi, Alfred Marchisio, Cherilyn Leversee and Jack Greene, vocational rehabilitation counselors.

Unavailable

Reported by L. Hargraves