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Queme v. IBP6/21/2005
es, if one is able to return to work, he or she is not entitled to vocational rehabilitation.
263 Neb. at 206, 639 N.W.2d at 103.
Here, the trial court found that Ana did not suffer "permanent disability" to her hand and forearm or to her lower back. Such findings suffer somewhat from the imprecise use of the terms "disability" and "impairment." See Swanson v. Park Place Automotive, 267 Neb. 133, 672 N.W.2d 405 (2003) (distinguishing between impairment and disability). Nonetheless, we believe it is appropriate to presume that the trial court found that the medical evidence established no permanent impairment and, therefore, no permanent disability. See id. (no permanent disability without permanent impairment; disability is legal issue while impairment is medical assessment). Without a finding of permanent impairment, vocational rehabilitation would not have been appropriate for the injuries to Ana's hand, forearm, and lower back.
As to Ana's shoulder and hip, the trial judge found that Ana had not reached MMI. When an employee has reached MMI, the remaining disability is, as a matter of law, permanent. Yarns v. Leon Plastics, Inc., 237 Neb. 132, 464 N.W.2d 801 (1991). Thus, because the trial court found that the medical evidence established that Ana had not yet reached MMI as to her hip and shoulder, it follows that whether she suffered from such permanent impairment could not yet be determined. And, without a finding of permanent impairment, the trial court cannot award vocational rehabilitation. See Green v. Drivers Mgmt., Inc., supra. Therefore, the trial court's findings that the medical evidence did not establish a permanent impairment or establish that she had reached MMI provided a clear basis for not awarding vocational rehabilitation, because such could not have been granted as a matter of law. The trial court's order complied with rule 11 with respect to the matter of vocational rehabilitation, and the review panel did not err in so concluding. Ana's argument is without merit as to vocational rehabilitation.
(c) Request for Temporary Partial Disability
Ana also argues that the trial court failed to discuss whether she was entitled to temporary partial disability benefits and that, therefore, the order did not comply with rule 11 in that respect and the review panel erred in affirming the award. An employee's disability as a basis for temporary partial disability is determined by the employee's diminution of employability or impairment of earning power or earning capacity, and is not necessarily determined by a physician's evaluation and assessment of the employee's loss of bodily function. Heiliger v. Walters & Heiliger Electric., Inc., 236 Neb. 459, 461 N.W.2d 565 (1990).0
The trial judge stated in the award that after the injury on January 15, 2001, Ana continued to work until August 2002. Additionally, the trial court stated that her shoulder injury "has not been disabling." As to Ana's lower back injury occurring on January 12, 2002, the trial court found that Ana "worked without interruption or without a medical opinion removing her from work following the accident and injury." Therefore, she was "not entitled to any temporary or permanent disability benefits for the low back injury."
As to the July 16, 2002, injury, the trial court found temporary total disability from August 6 to 30. The court then stated, "After August 30 . . . Dr. Adamson reiterates in virtually every note that is able to work on a light duty basis. The Court concludes, therefore, that is not entitled to additional temporary disability benefits."
The review panel found that the trial court's use of the term "temporary
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