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Green v. Drivers Management2/15/2002
k for 776/7 weeks and covered two different time periods. The permanent partial disability award amounted to $329.54 per week for 2221/7 weeks due to what the trial judge determined to be a 50-percent loss of earning capacity.
None of Green's physicians assigned him a permanent impairment rating or gave him permanent physical restrictions. However, the trial judge relied upon Dr. Shayevitz' report, as well as Green's testimony, to find that Green suffered a 50-percent loss of earning capacity as a result of the injury. Additionally, the trial judge pointed out that Green's ability to lift in the "heavy work" classification, according to the August 1998 functional capacity evaluation, was trumped by his testimony that he tried his hardest during the evaluation, that he was in bed 2 to 3 days after the evaluation as a result of his exertion during the test, and that he could physically lift the weight in the evaluation but could not do so continually.
On April 3, 2000, through an order nunc pro tunc, the trial judge amended its award to include the following text: "[Green] will require additional medical care and treatment for which is liable." On April 6, DMI appealed the award to a review panel of the compensation court, which affirmed the award in all respects.
DMI then appealed to the Court of Appeals, where it asserted that the trial judge exceeded her powers and that there was insufficient evidence to support the award. Specifically, DMI alleged that the trial judge erred in (1) finding that Green had suffered a 50-percent loss of earning capacity without evidence of impairment ratings or physical restrictions causally related to Green's injury, (2) finding that Green was temporarily totally disabled from November 19, 1998, through February 9, 1999, (3) ordering DMI to pay medical bills that were not offered into evidence, and (4) awarding Green vocational rehabilitation services.
The Court of Appeals held, in pertinent part, that it was clear error to assign Green a 50-percent permanent partial disability because the record in this case does not contain any evidence that Green suffered a permanent impairment to his body as a whole. Green v. Drivers Mgmt., Inc., 10 Neb. App. 299, 634 N.W.2d 22 (2001). As to vocational rehabilitation, the Court of Appeals concluded that since there is no longer a requirement in the text of Neb. Rev. Stat. § 48-162.01 (Reissue 1998) that an injured worker have a permanent disability to be eligible for vocational rehabilitation benefits, the reversal of Green's permanent partial disability benefits award does not affect the award of vocational rehabilitation. Green v. Drivers Mgmt., Inc., supra. The Court of Appeals then vacated the portion of the trial judge's order requiring DMI to reimburse Green and his health insurance carrier for payments related to his June 1997 injury because the lack of evidence and vagueness of the order would require one to speculate about what is required. Id.
Both parties then filed petitions for further review with this court, and both petitions were granted.
ASSIGNMENTS OF ERROR
DMI's petition for further review asserts that the Court of Appeals erred in (1) holding that an injured worker is entitled to vocational rehabilitation under § 48-162.01 absent a finding of permanent impairment and (2) failing to vacate the clearly erroneous factual finding of the trial judge that Green was entitled to an evaluation for vocational rehabilitation services under § 48-162.01 absent a finding of permanent impairment.
Green's petition for further review asserts, rephrased, that the Court of Appeals erred in (1) overruling the trial judge's determination that
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