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Vogl v. Crest View Care Center12/23/2003
nsation court do not support the order or award. Zavala v. ConAgra Beef Co., 265 Neb. 188, 655 N.W.2d 692 (2003); Vega v. Iowa Beef Processors, 264 Neb. 282, 646 N.W.2d 643 (2002). 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 the single judge who conducted the original hearing. Frauendorfer v. Lindsay Mfg. Co., 263 Neb. 237, 639 N.W.2d 125 (2002); Vonderschmidt v. Sur-Gro, 262 Neb. 551, 635 N.W.2d 405 (2001).
Upon appellate review, the findings of fact made by the trial judge of the compensation court have the effect of a jury verdict and will not be disturbed unless clearly wrong. Zavala v. ConAgra Beef Co., supra; Frauendorfer v. Lindsay Mfg. Co., supra.
An appellate court is obligated in workers' compensation cases to make its own determinations as to questions of law. Green v. Drivers Mgmt., Inc., 263 Neb. 197, 639 N.W.2d 94 (2002); Fay v. Dowding, Dowding, 261 Neb. 216, 623 N.W.2d 287 (2001).
ANALYSIS
Crest View first assigns that the trial court erred in finding that the vocational rehabilitation counselor's report regarding Vogl's loss of earning capacity was entitled to a rebuttable presumption of correctness. The parties agreed upon Hallie Feil as the vocational rehabilitation counselor to complete a vocational evaluation of Vogl. On November 19, 2001, Feil issued her report concluding that she was unable to identify any jobs Vogl could perform and that due to Vogl's physical restrictions, education, and work history, Vogl had sustained a significant vocational impairment as a result of her work-related injury. It was Feil's opinion within a reasonable degree of vocational certainty that Vogl was incapable of performing any work, suitable or otherwise, at that time. The trial court found that Feil's report was entitled to a rebuttable presumption of correctness and relied on it in determining that Vogl is permanently and totally disabled.
Under Neb. Rev. Stat. ยง 48-162.01(3) (Cum. Supp. 2002), 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., supra. However, Crest View argues that Feil's report is not entitled to such a presumption, because Feil's opinions were based on the assumption that Vogl had not yet reached MMI, and thus, her opinions cannot be considered in determining the extent of Vogl's disability. We do not find a qualification in Feil's report to indicate that she was assuming Vogl was not at MMI, as Crest View claims. Rather, Feil's report simply states what Vogl's medical records reflect regarding MMI:
Lawlor placed her at maximum medical treatment on 08/25/00 and issued an 11% permanent partial impairment rating. He also recommended completion of a [functional capacity evaluation], which has not been done. Dr. [Robin] Ockey has more recently indicated that . . . Vogl is not at MMI and he has recommended additional treatment for her including consideration of implantation of a dorsal column stimulator.
Feil's report points out that there was a disagreement between medical experts as to whether Vogl was at MMI. The trial court found that Vogl was at MMI, based upon Lawlor's August 25, 2000, letter which concluded that Vogl was at MMI and suffered a combined permanent impairment of 11 percent to the body as a whole. The medical records also contain the opinion of Dr. Robin Ockey, in a letter dated October 26, 2001, that Vogl had not reached MMI.
The trial court had to choose between conflicting medical evidence. As the
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