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Green v. Drivers Management2/15/2002
provide expert medical testimony showing a causal connection between the injury and the claimed disability. Frank v. A & L Insulation, 256 Neb. 898, 594 N.W.2d 586 (1999).
[9,10] The term "impairment" is a medical assessment, while the term "disability" is a legal issue. Jorn v. Pigs Unlimited, Inc., 255 Neb. 876, 587 N.W.2d 558 (1998), citing Dayron Corp. v. Morehead, 509 So. 2d 930 (Fla. 1987). "'"Permanent medical impairment is related directly to the health status of the individual, whereas disability can be determined only within the context of the personal, social, or occupational demands, or statutory or regulatory requirements that the individual is unable to meet as a result of the impairment."'" (Emphasis omitted.) Phillips v. Industrial Machine, 257 Neb. 256, 278, 597 N.W.2d 377, 392 (1999) (Gerrard, J., concurring). See, also, Frauendorfer v. Lindsay Mfg. Co., post p. 237, ___ N.W.2d ___ (2002).
We agree with the holding of the Court of Appeals that Green had the burden of proving that his injury caused permanent impairment of his body as a whole as a predicate to an award for permanent disability, i.e., loss of earning capacity. We also agree with the Court of Appeals that based on the record in this case, it would be sheer speculation to assign Green a 50-percent permanent partial disability because the record does not indicate that Green suffered a permanent impairment. A workers' compensation award cannot be based on mere possibility or speculation, and if an inference favorable to the plaintiff can only be reached on the basis thereof, then he or she cannot recover. Green v. Drivers Mgmt., Inc., supra. We conclude that the trial judge committed clear error in concluding that the evidence in the record was sufficient to allow a finding that Green suffered a 50-percent loss of earning capacity. We thus affirm the decision of the Court of Appeals to reverse and vacate the trial judge's award of permanent disability benefits.
Vocational Rehabilitation
The Court of Appeals held that it was not clearly erroneous for the trial judge to find that because Green is unable to perform the work for which he has previous training or experience, he is entitled to vocational rehabilitation benefits, despite the fact that Green was not permanently disabled. We disagree.
In Snyder v. IBP, Inc., 222 Neb. 534, 385 N.W.2d 424 (1986), this court stated that vocational rehabilitation can be awarded only when the claimant has suffered a total or partial disability which was, or is likely to be, permanent. We quoted from a version of § 48-162.01(6) which stated that vocational rehabilitation may be awarded only if a worker's disability "'is or is likely to be permanent'" and that there was a reasonable probability that such rehabilitation would help restore the worker to gainful employment. 222 Neb. at 537, 385 N.W.2d at 427. See, e.g., § 48-162.01 (Reissue 1988). However, in 1993, the statute was amended and the language in subsection (6) requiring at least the likelihood of a permanent impairment was removed. Subsection (3) has remained the same, however, and it states, in relevant part, the standard of eligibility for vocational rehabilitation as follows:
When as a result of the injury an employee is unable to perform suitable work for which he or she has previous training or experience, he or she shall be entitled to such vocational rehabilitation services, including job placement and retraining, as may be reasonably necessary to restore him or her to suitable employment. See § 48-162.01(3) (Reissue 1998).
Determination as to whether an injured employee is able to perform the work for which that employee was previously traine
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