THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
PIRTLE, Judge.
INTRODUCTION
Daniel L. Cuba appeals from an order of the Nebraska Workers' Compensation Court. The order affirmed the award of future medical care and reversed the award of vocational rehabilitation benefits. Cuba appeals the reversal of vocational rehabilitation, and Furnas County cross-appeals the affirmance of future medical benefits.
BACKGROUND
Cuba became injured on January 6, 2008, while knocking down a door as part of his duties as a deputy sheriff for Furnas County. He testified that he heard a "very loud pop in [his] lower left side [of his back]" and "then there was a very sharp, it was almost like an electric shock, shocking sharp pains that shot in towards my spine and then upwards towards my shoulders." Cuba testified at trial that the pain and discomfort in his lower back have never gone away.
Law enforcement has been Cuba's sole career since high school—first in the U.S. Air Force and then with four police departments and sheriffs' offices in Nebraska. Following his January 2008 work accident, Cuba was off work for a couple of weeks and then returned to light duty with Furnas County. Cuba testified that with the aid of Dr. James Mahalek's injections, he was able to return to some normal duties. Furnas County offered evidence indicating that Cuba resumed writing traffic tickets.
Furnas County terminated Cuba's employment in late April 2008. Cuba testified on direct examination that this was unrelated to his back injury. Furnas County presented evidence that the termination of employment had to do with Cuba's performance or conduct.
Cuba presented evidence that after hearing testimony from Cuba and Furnas County Chief Deputy Douglas Brown, an administrative law judge, deciding whether Cuba was entitled to unemployment benefits, found as follows:
Based upon evidence as adduced at the hearing, it is the opinion of the Tribunal that [Cuba] was discharged for the convenience of [Furnas County]. Having failed to appear and present evidence establishing disqualifying misconduct on the part of [Cuba], The Tribunal must find that [he] was discharged absent misconduct and therefore under non-disqualifying conditions.
There was a representative of Furnas County at the workers' compensation trial, referred to in the record as "someone here." However, no one testified on behalf of Furnas County, and there was no live testimony contradicting Cuba's testimony that he returned to some regular duties.
After Furnas County terminated Cuba's employment, he looked for other law enforcement work and continued to seek employment in law enforcement. He testified, "I really don't know anything else other than law enforcement, and I've been told I won't be able to go back to it." In job applications, Cuba must disclose lifting limitations as a result of his injuries.
Cuba testified that epidural injections relieved some of his symptoms. He also tried trigger-point injections which delivered the same relief, but it only lasted about 3 weeks. Cuba's doctors also tried radio frequency procedures which provided him about 30 percent relief, but the relief lasted for a longer period of time, about 3 months. Dr. Phillip Essay and Dr. James Devney do not recommend surgery for Cuba, because they cannot determine the exact point of injury and Cuba's smoking habit makes him a poor candidate for surgery.
Dr. Essay and Dr. Devney both stated the work accident has caused Cuba to be limited to medium-duty work. Cuba does not think he can physically handle law enforcement tasks such as wrestling with suspects, pulling suspects out of vehicles, restraining his canine unit dog, kicking down a door, or pursuing a suspect on foot for any real distance. He testified that the heaviest thing he can lift comfortably is a case of soda at the grocery store. In addition, Cuba said his symptoms prevent him from doing activities he engaged in prior to his injuries, including sledding and playing basketball with his daughter, riding a bike, or mowing his lawn.
A court-appointed vocational rehabilitation counselor concluded that Cuba's restrictions "preclude him from returning to many law enforcement positions, most notably as a patrol officer." A vocational rehabilitation expert retained by Cuba stated, "[I]t is this counselor's opinion that... Cuba would not be able to secure employment in police officer type work and maintain this type of employment since he would not be able to completely perform all of the physical requirements in an emergency type situation."
The one job offer Cuba received after Furnas County terminated his employment was with the city of Lincoln as an animal control officer. He worked from January 2010 to April 2010, but he did not successfully complete a probationary period and was let go. Cuba testified that his failure to successfully complete the probationary period was unrelated to his back injury. Cuba told the city of Lincoln that he could perform essential job functions without accommodation, but he also stated on the application that he could not lift a minimum of 100 pounds.
Furnas County presented testimony that performance and/or personality issues were the reason Cuba was not kept on by the city of Lincoln.
On February 10, 2011, the Nebraska Workers' Compensation Court issued an award stating that Cuba is in need of and entitled to vocational rehabilitation services should he desire them. The award also stated that Cuba is entitled to future medical care because some treatment methods provide him with relief.
Furnas County filed an application for review with the Workers' Compensation Court on February 23, 2011, citing several errors of law and/or findings of fact made by the trial judge. On June 22, the Workers' Compensation Court issued an order of affirmance, in part, and reversal, in part, on review. The order reduced Furnas County's assignments of error to two main issues—the award of vocational rehabilitation and the award of future medical care.
The review panel determined the assignment of error regarding future medical care is without merit because the notes and records of Cuba's doctors indicate "the types of conservative care received in the past had been effective to relieve [Cuba's] symptoms and Dr. Essay recommended similar future medical treatment." Further, Cuba testified that the treatments had been effective and allowed his return to work as a deputy sheriff and later as an animal control officer.
The review panel reversed the decision of the trial judge on the subject of vocational rehabilitation. The panel stated the purpose of vocational rehabilitation is to return an injured employee to gainful employment in a suitable position within the employee's physical limitations and at a comparable wage. The evidence shows that Cuba returned to work at Furnas County and was unable to perform the functions of his position and that his employment was subsequently terminated. Then Cuba obtained new employment as an animal control officer, but he failed to complete the probationary period and his employment was terminated. The review panel cites evidence that Cuba was terminated from both positions for reasons unrelated to his injuries, and therefore, the panel reversed the award of vocational rehabilitation services. Cuba filed notice of appeal of this decision on July 21, 2011.
ASSIGNMENTS OF ERROR
Cuba appeals, assigning that the review panel committed reversible error by not properly deferring to the trial judge's findings of fact regarding vocational rehabilitation.
Furnas County cross-appeals, assigning that the trial judge erred in awarding Cuba future medical care and that the review panel erred in affirming the trial judge's award of future medical care.
STANDARD OF REVIEW
In determining whether to affirm, modify, reverse, or set aside a judgment of the Workers' Compensation Court review panel, a higher appellate court reviews the findings of fact of the single judge who conducted the original hearing; the findings of fact of the single judge will not be disturbed on appeal unless clearly wrong. Swanson v. Park Place Automotive, 267 Neb. 133, 672 N.W.2d 405 (2003).
ANALYSIS
An appellate court will consider the fact that the trial court saw and heard the witnesses and observed their demeanor while testifying, and will give great weight to the trial court's judgment as to credibility. Huffman v. Peterson, 272 Neb. 62, 718 N.W.2d 522 (2006).
When testing the sufficiency of the evidence to support findings of fact made by the Workers' Compensation Court trial judge, the evidence must be considered in the light most favorable to the successful party and the successful party will have the benefit of every inference reasonably deducible from the evidence. Olivotto v. DeMarco Bros. Co., 273 Neb. 672, 732 N.W.2d 354 (2007).
Upon appellate review, the findings of fact made by the trial judge of the compensation court have the effect of a jury verdict and will not be disturbed unless clearly wrong. If the record contains evidence to substantiate the factual conclusions reached by the Workers' Compensation Court, an appellate court is precluded from substituting its view of the facts for that of the Workers' Compensation Court. Weichel v. Store Kraft Mfg. Co., 10 Neb.App. 276, 634 N.W.2d 276 (2001).
Vocational Rehabilitation.
Neb. Rev. Stat. § 48-162.01 (Reissue 2010) states in pertinent part 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 is entitled to such vocational rehabilitation services, including job placement and training, as may be reasonably necessary to restore him or her to suitable employment.
The Nebraska Supreme Court has held that "determination as to whether an injured employee is able to perform the work for which that employee was previously trained is a question of fact to be determined by the compensation court, and that determination will not be disturbed by an appellate court unless the finding is clearly erroneous." Willuhn v. Omaha Box Company, 240 Neb. 571, 576, 483 N.W.2d 130, 134 (1992).
The trial judge heard the evidence regarding Cuba's ability to work for Furnas County and his eligibility for other comparable positions. Cuba testified that he is no longer able to perform many of the tasks that are required of a police officer such as chasing after suspects, restraining a police dog, or pulling someone from a vehicle. The evidence shows the physical requirements of one who must act in an emergency exceed Cuba's abilities as shown by the functional capacity evaluation.
The court's award stated that Cuba has suffered the loss of the ability to perform as a frontline police officer and/or deputy sheriff but he has significant training in policework which will be an asset when he attempts to find a position in quasi-law-enforcement. The judge determined that Cuba "is in need of vocational rehabilitation services." As a result, the award states Cuba is entitled to vocational rehabilitation should he desire such services.
The review panel reversed the decision of the trial judge on the subject of vocational rehabilitation. The panel stated that the purpose of vocational rehabilitation is to return an injured employee to gainful employment in a suitable position within the employee's physical limitations and at a comparable wage. The evidence shows that Cuba returned to work at Furnas County, he was unable to perform the functions of his position, and his employment was subsequently terminated. Cuba obtained new employment as an animal control officer, but he failed to complete the probationary period and his employment was terminated. The panel cites evidence that Cuba was terminated from both positions for reasons unrelated to his injuries, and therefore, the panel reversed the award of vocational rehabilitation services.
However, the trial judge saw and heard the testimony of Cuba and Furnas County and determined that Cuba was in need of vocational rehabilitation. Further, viewing the evidence in the light most favorable to Cuba, there is little dispute that he is no longer able to perform at least a portion of the work for which he is trained. The trial judge determined that Cuba was entitled to vocational rehabilitation services, and in the absence of clear error, we must affirm that decision.
Future Medical Care.
The Workers' Compensation Court's award states that Cuba is entitled to future medical care. The award cites the recommendations of Cuba's treating physician and Cuba's testimony that he receives some relief from the injection treatments. The compensation court determined that more of these injections or similar treatment may be necessary in the future and that therefore, Cuba is entitled to future medical care.
The review panel determined Furnas County's assignment of error regarding future medical care is without merit because the notes and records of Cuba's doctors indicate "the types of conservative care received in the past had been effective" to relieve Cuba's symptoms and "Dr. Essay recommended similar future medical treatment." Further, Cuba testified that the treatments had been effective and allowed his return to work as a deputy sheriff and later as an animal control officer.
At trial, Cuba provided evidence from several treating doctors indicating the injections and care provided relieved his pain to a degree. However, none of the treatments provide him permanent or total relief, and future treatments will be necessary to manage his condition. The award of future medical care, made by the trial judge, and affirmed by the review panel, is supported by the evidence and is not clearly wrong.
CONCLUSION
We find the decision of the trial judge to award vocational rehabilitation was not clearly wrong; therefore, the review panel erred in reversing the award. We therefore reverse, and reinstate the award of vocational rehabilitation. We find the decision of the trial judge to award future medical expenses based upon the evidence presented was not clearly wrong, and as such, we affirm the decisions of both the trial judge and the review panel, awarding future medical care to Cuba.
AFFIRMED IN PART, AND IN PART REVERSED.
