Araujo v. IBP2/10/2004
(not designated for permanent publication)
INTRODUCTION
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. Gre
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