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Gann v. Vickers3/15/2005
been permanently totally disabled since and after July 26, 2001 . . . ." Jack Greene, the agreed-upon counselor, provided a loss of earning capacity analysis report dated September 3, 1996. The trial court referenced page 5 of Greene's report, which contains the conclusion section. Therein, Greene noted Bowman's opinion that Gann had reached maximum medical improvement, but Greene concluded that because Bowman had not released Gann to full-time and permanent work activities, Gann did not then possess any earning capacity. Greene went on to state that if Gann were to be released by Bowman for sedentary training and work activities, Gann could require between 2 and 4 years of full-time academic training before reentering the employment market. Based on such a scenario, Greene concluded Gann's loss of earning capacity to a reasonable degree of vocational rehabilitation certainty would be 50 percent. Greene stated that he had closed Gann's file, and he opined that he was not able to offer vocational services which would reasonably lead to competitive employment in the near future. Greene noted Bowman's pessimism regarding Gann's vocational prognosis. Finally, Greene stated his opinion that " t the present time, to a reasonable degree of vocational rehabilitation certainty, [Gann] does not possess any capacity for earning." Greene also stated that if Gann's medical treatment with Bowman was more successful in the future, Gann might be released for sedentary training and employment, at which time Greene believed she would be capable of returning to the competitive labor force.
James Rogers provided a vocational evaluation and earnings capacity assessment rebuttal report dated June 25, 2002. In his report, Rogers states his opinion that if one accepts the medical conclusions of Bowman and Gold, then Gann is unemployable. Rogers also stated that if one accepted the medical opinion of Dr. Charles Taylon (a neurosurgeon who evaluated Gann on July 26, 2001, believed Gann had reached maximum medical improvement, and assigned a permanent partial impairment rating of 12 percent to the body as a whole), Gann's lost earning capacity would be in the range of 50 to 60 percent. Rogers was unclear whether Taylon considered Gann's pain levels and depression when arriving at his conclusions.
As did the review panel, we conclude that the trial court did, in fact, accept Greene's opinion in reaching its conclusion that Gann was totally disabled. Neither the opinion of Greene nor the rebuttal opinion of Rogers is inconsistent with the trial court's conclusion. While Greene does speculate that if Gann were released by Bowman for sedentary training and work activities at some point in the future and underwent approximately 2 to 4 years of full-time academic training, Gann's loss of earning capacity would be 50 percent, such speculation about the effects of future vocational rehabilitation is prohibited by current Nebraska case law. See Collins v. General Casualty, 258 Neb. 852, 606 N.W.2d 93 (2000) (holding review panel correctly determined that since claimant had reached maximum medical improvement, trial judge was obligated to determine claimant's loss of earning power and that trial judge erred in speculating what would be result of vocational rehabilitation when determining loss of earning capacity). We further conclude that the statements made by the trial court were sufficient to constitute "factual findings" regarding the rebuttable presumption. See Frauendorfer v. Lindsay Mfg. Co., 263 Neb. 237, 639 N.W.2d 125 (2002) (finding trial judge's statements sufficient to determine that trial judge considered presumption of correctness rebutted). Vickers' assignment of error is without merit.
CONCLUSION
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