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Grandt v. Douglas County11/15/2005
Sievers, Carlson, and Cassel, Judges.
INTRODUCTION
Barbara D. Grandt appeals from the order of the Nebraska Workers' Compensation Court review panel affirming the decision of the trial court. We are confronted with the question of whether a trial court, if it has not been called upon to determine loss of earning power until after completion of vocational rehabilitation, must disregard the reduction in loss of earning power resulting from successful vocational rehabilitation and calculate continuing benefits upon the loss of earning power as it existed immediately upon attainment of maximum medical improvement (MMI). Because we conclude that the trial court may consider the full circumstances existing at trial, we affirm.
BACKGROUND
The relevant facts are not in dispute. On November 8, 1999, when Grandt was employed by Douglas County (Douglas) as a nurse, Grandt was attacked by a patient and suffered back injuries. Douglas recognized that Grandt had suffered a work-related injury and, without any proceedings before the Workers' Compensation Court, began making payments to Grandt in relation to her claim for workers' compensation benefits. While those payments were ongoing, Grandt's primary treating physician opined that Grandt had reached MMI as of July 24, 2000.
During periods between November 9, 1999, and November 23, 2002, Douglas paid Grandt permanent partial disability (PPD) benefits based on a 40-percent loss of earning power. On December 6, 2001, shortly after Grandt began a vocational rehabilitation program, Gail Leonhardt, the vocational rehabilitation counselor whom the parties had agreed to engage, rendered an opinion regarding loss of earning power. Leonhardt's report stated that a vocational rehabilitation plan had been submitted and that Grandt was participating in an associate degree program in substance abuse counseling, but that
s per the request, decided upon as per agreement of [counsel for both parties], an earning capacity assessment as per Gibson v. Kurt Mfg., [255 Neb. 255, 583 N.W.2d 767 (1998), was] being conducted, considering [Grandt's] loss of earning capacity as of the date she reached , prior to undergoing any vocational rehabilitation as a result of this injury.
Leonhardt found that Grandt had sustained a 35- to 45-percent loss of earning power as of the date of MMI.
On August 17, 2002, Grandt completed the vocational rehabilitation plan, through which she obtained an associate degree in substance abuse counseling. In an "update" of Grandt's loss of earning power requested by Douglas, Leonhardt noted that his previous report had not considered "completed future vocational rehabilitation" and found that Grandt's loss of earning power was "reduced" to 25 to 35 percent upon completion of the vocational rehabilitation plan because Grandt was capable of performing work in the field of substance abuse counseling. Commencing November 24, Douglas unilaterally reduced Grandt's PPD benefits, basing subsequent payments on a 25-percent loss of earning power.
In a petition filed on March 13, 2003, after the vocational rehabilitation training had been completed and Douglas had reduced Grandt's PPD benefits, Grandt requested a hearing to address that reduction. At trial, the parties presented evidence, consisting primarily of a written stipulation and related exhibits. In its subsequent written decision, the trial court found that Grandt had sustained "a prevocational rehabilitation loss of earning capacity of 40 percent and a post vocational rehabilitation loss in earning capacity of 30 percent." The trial court then stated the respective rates of compensation to which each lo
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