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Vogl v. Crest View Care Center12/23/2003
sole trier of fact, the compensation court is the sole judge of the credibility of the medical evidence and the weight to be given to it. Weichel v. Store Kraft Mfg. Co., 10 Neb. App. 276, 634 N.W.2d 276 (2001). Whether an employee has reached maximum medical improvement or recovery is a question of fact to be determined by the compensation court. Heiliger v. Walters & Heiliger Electric Inc., 236 Neb. 459, 461 N.W.2d 565 (1990); Weichel v. Store Kraft Mfg. Co., supra. The trial court chose to rely on Lawlor's opinion and found that Vogl reached MMI on August 25, 2000. When a worker has reached maximum recovery, the remaining disability is permanent and such worker is no longer entitled to compensation for temporary disability. Gardner v. Beatrice Foods Co., 231 Neb. 464, 436 N.W.2d 542 (1989); Weichel v. Store Kraft Mfg. Co., supra. Upon a determination that an employee has reached MMI, absent a valid reason for not making such a determination, the trial court is obligated to make a determination as to the employee's loss of earning power. Gibson v. Kurt Mfg., 255 Neb. 255, 583 N.W.2d 767 (1998); Weichel v. Store Kraft Mfg. Co., supra. A determination as to whether an injured worker has had a loss of earning power is a question of fact to be determined by the Workers' Compensation Court. Cords v. City of Lincoln, 249 Neb. 748, 545 N.W.2d 112 (1996); Weichel v. Store Kraft Mfg. Co., supra.
Any disability Vogl had after August 25, 2000, the date of MMI, is permanent. Feil's report was dated November 19, 2001, and Feil opined that Vogl was not capable of working in any capacity at the time the report was made. Thus, the trial court properly relied on Feil's report regarding Vogl's loss of earning capacity in determining the extent of Vogl's disability. The trial court did not err in finding that Feil's report was entitled to a rebuttable presumption of correctness, and Crest View's first assignment of error is without merit.
Crest View next assigns that the trial court erred in finding that Vogl is permanently and totally disabled. Whether a plaintiff in a Nebraska workers' compensation case is totally and permanently disabled is a question of fact. Frauendorfer v. Lindsay Mfg. Co., 263 Neb. 237, 639 N.W.2d 125 (2002); Skomal v. World of Food, 6 Neb. App. 128, 570 N.W.2d 542 (1997). Crest View contends that there was insufficient evidence to support a finding of permanent and total disability, because there are no permanent restrictions in Vogl's medical records and absent permanent restrictions, a claimant cannot be deemed permanently and totally disabled. The trial court found that Vogl had been given numerous restrictions by various treating physicians, and the court set forth those restrictions in its award. The review panel agreed that there was evidence of permanent restrictions and inability to return to suitable employment. Crest View argues that the restrictions the trial court relied on were temporary restrictions, rather than permanent ones.
We conclude that there was evidence of permanent restrictions in the medical records, as noted by the trial court. The record contains a report by Dr. Steven Gulevich, dated October 26, 2000, stating:
I would place the following permanent restrictions on [Vogl]: First, she should not use the right upper limb for any work-related activity. The right upper limb is reserved for activities of daily living only. She may lift up to 10 pounds with the left upper limb and carry 10 pounds for short periods of time (a couple of minutes). She will not be able to sit still for more than about a minute nor stand for more than about 15 minutes. Given her level of pain and need for medications, she is not going to be able to remember or
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