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Vogl v. Crest View Care Center12/23/2003
understand complex directions. She should not use her hands for repetitive tasks or fine motor activity. I think these restrictions are permanent.
Additionally, Mike Westerbuhr, a physician's assistant who had been providing care for Vogl for over a year, wrote a letter dated November 19, 2001, in which he referenced the 11-percent permanent impairment rating given by Lawlor. Westerbuhr opined that "[Vogl's] physical abilities are restricted to the point that she would not be able to work . . . ." Finally, the trial court cited the opinion of Ockey as evidence of permanent restrictions. In Ockey's October 26, 2001, letter, he gave the opinion that Vogl was unable to participate in gainful employment at that time. The October 26 letter also contains Ockey's opinion that Vogl was not yet at MMI. However, the trial court found that Vogl reached MMI as of August 25, 2000, and the trial court was not restricted from considering the opinion of Ockey regarding Vogl's employability, even though Ockey did not share the MMI opinion. As previously stated, there is sufficient evidence of permanent restrictions and loss of employability in the record, and thus, Crest View's second assignment of error is without merit.
Finally, on cross-appeal, Vogl assigns that the review panel erred in finding the trial court was clearly wrong in its determination that Vogl's temporary total disability commenced on November 1, 1998. The review panel found that Vogl continued to work for Crest View Care Center from November 1, 1998, until November 1, 1999, and, thus, that the start date for temporary total disability should have been November 1, 1999. The evidence shows and Vogl admits that she continued to work for Crest View Care Center as a nurse following the accident until November 1999. However, she contends that she was totally disabled during this time.
Temporary disability has been defined as the period during which the employee is submitting to treatment, is convalescing, is suffering from the injury, and is unable to work because of the accident. Frauendorfer v. Lindsay Mfg. Co., 263 Neb. 237, 639 N.W.2d 125 (2002); Bindrum v. Foote & Davies, 235 Neb. 903, 457 N.W.2d 828 (1990). Total disability exists when an injured employee is unable to earn wages in either the same or a similar kind of work he or she was trained or accustomed to perform or in any other kind of work which a person of the employee's mentality and attainments could perform. Frauendorfer v. Lindsay Mfg. Co., supra; Miller v. E.M.C. Ins. Cos., 259 Neb. 433, 610 N.W.2d 398 (2000).
Vogl went back to work following the accident, and from the time of the accident until November 1, 1999, Vogl did not miss any work as a result of the accident. Vogl further testified that she did not modify her job duties at all after the accident. She testified that she had been given weight-lifting restrictions, and the medical records reflect such restrictions. However, Vogl further testified that she "tried" to avoid heavy lifting but that in doing her job, that was not always possible. The evidence indicates that for a year following the work-related accident, Vogl continued to work for Crest View Care Center doing the same job and same duties that she had done prior to the accident. Thus, Vogl was not totally disabled during the time period from November 1, 1998, to November 1, 1999, because she was able to earn wages in the same kind of work she was trained or accustomed to perform. We conclude that the review panel did not err in reversing the trial court's finding that Vogl's temporary total disability commenced on November 1, 1998. Vogl's assignment on cross-appeal is without merit.
Vogl has requested an award of attor
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