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Gann v. Vickers3/15/2005
substitute its judgment for that of the compensation court regarding which medical evidence to rely upon. Martinez-Najarro v. IBP, inc., 12 Neb. App. 504, 678 N.W.2d 114 (2004).
ANALYSIS
Permanent Total Disability
Vickers first asserts that the trial court erred in finding that Gann is permanently and totally disabled. Vickers also made this assertion before the review panel. Total disability exists when an injured employee is unable to earn wages in either the same or a similar kind of work he or she was trained or accustomed to perform or in any other kind of work which a person of the employee's mentality and attainments could perform. Dawes v. Wittrock Sandblasting & Painting, 266 Neb. 526, 667 N.W.2d 167 (2003). Temporary disability is the period during which the employee is submitting to treatment, is convalescing, is suffering from the injury , and is unable to work because of the accident. Id. When a worker has reached maximum recovery, the remaining disability is permanent and such worker is no longer entitled to compensation for temporary disability. Weichel v. Store Kraft Mfg. Co., 10 Neb. App. 276, 634 N.W.2d 276 (2001). Whether an employee has reached maximum medical improvement or recovery is a question of fact to be determined by the compensation court. Id.
Vickers takes issue with the trial court's statement that Gann had been "permanently totally disabled since and after July 26, 2001, which entitle her to indemnity at the rate of $265.00 per week from July 26, 2001, through the date of trial and for so long in the future as she shall remain permanently totally disabled." (Emphasis supplied.) In particular, Vickers argues that the emphasized portion of the above finding by the trial court, which finding Vickers misquotes in its brief, can only support a conclusion that Gann is "temporarily, totally disabled, not permanently and totally disabled, as the [trial] court suggested." Brief for appellant at 26. Vickers correctly notes that once a claimant has reached maximum medical improvement, he or she is no longer entitled to compensation for temporary total disability and must then be awarded permanent disability benefits. Vickers points to evidence in the record showing that Gann had reached maximum medical improvement and that she had been assigned permanent whole body impairments. Vickers states, correctly, that having reached a point of maximum medical improvement, Gann is no longer entitled to temporary disability payments. Vickers argues, however, that the trial court's conclusion that Gann was "'permanently totally disabled'" is in error because of the trial court's conclusion that Gann "may recover from her injuries at some point." Brief for appellant at 27.
When faced with similar arguments from Vickers, the review panel concluded that Vickers' assertions served only to "exalt form over substance" and were without merit. The review panel stated that the trial court's decision, while clearly indicating that Gann was a candidate for a multilevel lumbar fusion, found that she was not then a suitable candidate due to her depression. The review panel determined that the reasonable conclusion to be drawn from such a finding was that Gann was not currently undergoing any active medical treatment and had attained (under the present circumstances) her "maximum state of healing." The review panel further found that should Gann undergo the recommended surgery and/or the mental health counseling prescribed for her, then arguably her status while undergoing that treatment would revert to a condition of temporary total disability. The review panel noted Neb. Rev. Stat ยง 48-141 (Reissue 2004), stating that this section "preserves and protects t
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