Visoso v. Cargill Meat Solutions ( 2014 )

Nebraska Advance Sheets
VISOSO v. CARGILL MEAT SOLUTIONS 439
Cite as 287 Neb. 439
Odilon Visoso, also known as Adam Rodriguez,
appellant, v. Cargill M eat Solutions, appellee.
___ N.W.2d ___
Filed February 14, 2014. No. S-13-454.
1. Workers’ Compensation: Appeal and Error. A judgment, order, or award of
the Workers’ Compensation Court may be modified, reversed, or set aside only
upon the grounds that (1) the compensation court acted without or in excess of its
powers; (2) the judgment, order, or award was procured by fraud; (3) there is not
sufficient competent evidence in the record to warrant the making of the order,
judgment, or award; or (4) the findings of fact by the compensation court do not
support the order or award.
2. Workers’ Compensation: Evidence: Appeal and Error. In testing the suf-
ficiency of the evidence to support the findings of fact, the evidence must be
considered in the light most favorable to the successful party, every contro-
verted fact must be resolved in favor of the successful party, and the successful
party will have the benefit of every inference that is reasonably deducible from
the evidence.
Appeal from the Workers’ Compensation Court: Daniel R.
Fridrich, Judge. Reversed and remanded.
Ryan C. Holsten and Leslie S. Stryker, Senior Certified Law
Student, of Atwood, Holsten, Brown & Deaver Law Firm, P.C.,
L.L.O., for appellant.
Caroline M. Westerhold and Jenny L. Panko, of Baylor,
Evnen, Curtiss, Grimit & Witt, L.L.P., for appellee.
Heavican, C.J., Wright, Connolly, Stephan, McCormack,
and Miller-Lerman, JJ.
Heavican, C.J.
INTRODUCTION
In a prior appeal, Odilon Visoso appealed the decision
of the Nebraska Workers’ Compensation Court’s finding that
he had failed to meet his burden of proving loss of earning
capacity in his new community in Mexico and declining his
claim for permanent impairment. We remanded the cause to
permit Visoso to establish loss of earning capacity using the
Schuyler, Nebraska, community where the injury occurred.
On remand, the compensation court reviewed the previously
Nebraska Advance Sheets
440 287 NEBRASKA REPORTS
submitted earning capacity reports and found Visoso suffered
a 45-­ercent loss of earning capacity. Visoso appeals. We
p
reverse, and remand.
BACKGROUND
Visoso, also known as Adam Rodriguez, began working for
Cargill Meat Solutions (Cargill) in Schuyler in March 2006.
On May 9, Visoso was injured when a quarter slab of beef
fell from a conveyor belt hook onto Visoso’s head. Visoso’s
initial medical treatment included physical therapy, chiroprac-
tic services, pain medication, and steroid injections. Visoso
eventually required surgery on his neck in October 2007, but
continued to experience pain. After a trial in 2008, Visoso
was awarded temporary total disability benefits. The Nebraska
Court of Appeals affirmed the award.1
In 2011, Cargill petitioned to discontinue the temporary dis-
ability benefits because Visoso had reached maximum medi-
cal improvement. Vocational rehabilitation counselor Karen
Stricklett was appointed to provide a report on Visoso’s loss of
earning capacity. While the modification action was pending,
Visoso returned to Mexico.
Stricklett prepared a preliminary report of Visoso’s loss of
earning capacity based on the Schuyler area. In a followup
report, Stricklett sought assistance in performing labor market
research in the Chilpancingo, Guerrero, Mexico, area. The
compensation court determined that the Chilpancingo area was
the appropriate hub, but denied the request to compel Cargill to
pay for market research because it found no reliable, relevant
statistical information existed regarding that area.
Around this time, Visoso retained another vocational reha-
bilitation expert, Helen Long. Long provided a report conclud-
ing that Visoso had sustained a 100-percent loss of earning
capacity, regardless of his location. After Long’s report was
submitted, Stricklett submitted a final report in which she
maintained that she was unable to provide an analysis with a
reasonable degree of certainty for the Chilpancingo area.
1
See Visoso v. Cargill Meat Solutions, 18 Neb. Ct. App. 202, 778 N.W.2d 504
(2009).
Nebraska Advance Sheets
VISOSO v. CARGILL MEAT SOLUTIONS 441
Cite as 287 Neb. 439
The parties stipulated that Visoso had reached maximum
medical improvement, so the compensation court terminated
Cargill’s obligation to pay benefits for temporary disability.
However, the compensation court found Visoso had failed to
meet his burden of proving loss of earning capacity in his new
community in Mexico and therefore declined Visoso’s claim
for permanent impairment and loss of earning capacity. Visoso
appealed. This court held:
When no credible data exists for the community to which
the employee has relocated, the community where the
injury occurred can serve as the hub community. Therefore,
we remand the cause to the Workers’ Compensation Court
to allow Visoso to attempt to establish permanent impair-
ment and loss of earning capacity using Schuyler as the
hub community.2
On remand, a single judge of the compensation court
reviewed the existing earning capacity reports and found
Stricklett’s earning capacity report was correct and had not
been rebutted. The compensation court thus concluded Visoso
had suffered a 45-percent loss of earning capacity. Visoso
appeals this determination.
ASSIGNMENTS OF ERROR
Visoso assigns, reordered, that the compensation court
erred in (1) finding that the opinions of Stricklett were never
rebutted and (2) failing to allow the parties to present new
evidence regarding loss of earning capacity based on the
Schuyler hub community.
STANDARD OF REVIEW
[1] A judgment, order, or award of the Workers’
Compensation Court may be modified, reversed, or set aside
only upon the grounds that (1) the compensation court acted
without or in excess of its powers; (2) the judgment, order, or
award was procured by fraud; (3) there is not sufficient compe-
tent evidence in the record to warrant the making of the order,
2
Visoso v. Cargill Meat Solutions, 285 Neb. 272, 290, 826 N.W.2d 845, 860
(2013).
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442 287 NEBRASKA REPORTS
judgment, or award; or (4) the findings of fact by the compen-
sation court do not support the order or award.3
ANALYSIS
R ebuttal Evidence
In his first assignment of error, Visoso claims the compensa-
tion court erred in finding that the opinions of Stricklett were
not rebutted.
Under Neb. Rev. Stat. § 48-162.01(3) (Reissue 2010),
[a]ny loss-of-earning-power evaluation performed by a
vocational rehabilitation counselor shall be performed
by a counselor from the directory established pursuant
to subsection (2) of this section and chosen or selected
according to the procedures described in this subsection.
It is a rebuttable presumption that any opinion expressed
as the result of such a loss-of-earning-power evaluation
is correct.
In its order, the compensation court stated that it had
reviewed the reports of Stricklett and Long. However, it does
not appear from the order that the judge reviewed any other part
of the record. The order notes that the court found Stricklett’s
report to be more persuasive. The order also states that “Long
never attacked any points made by . . . Stricklett or pointed out
any errors in . . . Stricklett’s methods or conclusions. Given
that . . . Long wrote her report before . . . Stricklett’s ultimate
conclusions were published, it’s easy to see why.”
Visoso argues there was evidence in the record rebutting the
opinions of Stricklett. Specifically, he points to the deposition
and trial testimony of Long.
Long’s deposition and trial testimony were produced after
Stricklett’s final report and include comments by Long regard-
ing what she perceived as faults in Stricklett’s report. Thus, it
appears there was at least some evidence in the record which
was relevant but not considered on remand. Where, as here,
the compensation court failed to weigh all of the evidence in
making its factual findings, we are unable to determine on
3
Sellers v. Reefer Systems, 283 Neb. 760, 811 N.W.2d 293 (2012).
Nebraska Advance Sheets
VISOSO v. CARGILL MEAT SOLUTIONS 443
Cite as 287 Neb. 439
review whether the findings of fact by the compensation court
supported the order.
Our holding is consistent with the approach taken by other
jurisdictions presented with this issue. In American Mut. &c.
Ins. Co. v. Williams,4 the Georgia Court of Appeals noted that
“[w]henever the courts feel that in making findings of fact the
[State Board of Workmen’s Compensation] has failed to weigh
all the evidence, the practice has been to recommit the case to
the board for further consideration.”5 We therefore remand this
cause so that the compensation court may make a finding as to
whether Stricklett’s report was rebutted after considering all of
the evidence in the record.
Sufficiency of Evidence
in R ecord
In Visoso’s second assignment of error, he asserts the com-
pensation court erred in not allowing the parties to present new
evidence of loss of earning capacity based on the Schuyler
hub community. Visoso argues that the evidence previously
submitted was not fully developed because the compensation
court had determined the appropriate hub to be Chilpancingo
and, because the evidence was not fully developed, that there
was not sufficient evidence in the record to warrant the mak-
ing of the order. Since we are remanding this cause under
Visoso’s first assignment of error, we now consider his second
assignment of error to determine whether the parties should be
allowed to present additional evidence on remand.
[2] This court has stated that among the limited grounds
upon which an order of the compensation court may be
modified, reversed, or set aside is that there is not sufficient
competent evidence in the record to warrant the making of
the order.6
4
American Mut. &c. Ins. Co. v. Williams, 133 Ga. App. 257, 259, 211
S.E.2d 193, 195 (1974).
5
Cf., Miller v. Lauridsen Foods, Inc., 525 N.W.2d 417 (Iowa 1994); Swift
& Co. v. Industrial Com., 150 Ill. App. 3d 216, 501 N.E.2d 752, 103 Ill.
Dec. 435 (1986).
6
Sellers, supra note 3.
Nebraska Advance Sheets
444 287 NEBRASKA REPORTS
In testing the sufficiency of the evidence to support
the findings of fact, the evidence must be considered in
the light most favorable to the successful party, every
controverted fact must be resolved in favor of the suc-
cessful party, and the successful party will have the ben-
efit of every inference that is reasonably deducible from
the evidence.7
Although the compensation court determined that Visoso’s
new community was the appropriate hub to determine loss of
earning capacity, evidence was also received into the record
regarding loss of earning capacity based on the Schuyler area,
including reports, depositions, and testimony. At the hear-
ing on the application for modification, Cargill objected on
relevance to all questions related to loss of earning power in
the Schuyler area, but the compensation court overruled the
objections and allowed the evidence. The reports submitted
by both vocational rehabilitation experts contain analyses and
conclusions for both Schuyler and Visoso’s new community in
Mexico and do not in any way indicate that they are incom-
plete as to the Schuyler area. Visoso has failed to identify what
additional information was needed and not previously submit-
ted into evidence.
Contrary to the argument made by Visoso, the record in this
case suggests that the evidence received regarding the Schuyler
area was complete. We find that the evidence was sufficient to
warrant an order by the compensation court and that no addi-
tional evidence is needed on remand.
CONCLUSION
We reverse the decision of the compensation court and
remand the cause for further reconsideration.
R eversed and remanded.
Cassel, J., not participating.
7
Frauendorfer v. Lindsay Mfg. Co., 263 Neb. 237, 244-45, 639 N.W.2d
125, 134 (2002).