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Queme v. IBP6/21/2005
disability benefits" encompassed denial of both temporary total and temporary partial disability benefits. But, given the substantial difference between temporary total and temporary partial disability benefits (and how they are calculated), we think the review panel has, in effect, impermissibly filled in the gaps in the trial judge's discussion on this issue. The review panel reasoned that the evidence supported the denial of total or partial temporary disability, because as of the date of the termination of Ana's employment, she "had been released to return to work without any restrictions," and that even if her employment had not been terminated, there was evidence that IBP had previously accommodated Ana's "light duty" restrictions. But, the problem is that such is the review panel's assessment of the evidence, not the trial judge's, and such view is not the only permissible assessment of the import of the medical evidence.
The questions presented by the assignment of error are whether the trial court's order complied with rule 11 and whether the review panel erred in affirming the award, which according to the review panel, correctly denied temporary partial disability. The trial court denied "temporary disability benefits" by reasoning that Ana had been able to work on a light-duty basis. Such reasoning clearly explains denying temporary total disability because if Ana was able to earn wages in either the same or a similar kind of work, she would not be entitled to temporary total disability. See Yarns v. Leon Plastics, Inc., 237 Neb. 132, 464 N.W.2d 801 (1991) (total disability exists when injured employee is unable to earn wages in either same or similar kind of work he or she was trained or accustomed to perform or in any other kind of work which person of employee's mentality and attainments could perform). Thus, Ana's being able to do light-duty work provides a basis for a meaningful appellate review as to temporary total disability.
However, the trial court's reasoning does not provide a well-reasoned decision that clearly and concisely explains the rationale for denying temporary partial disability. Although Ana was able to work on a light-duty basis, the trial court's decision does not deal with how such restriction affected her temporary employability or earning power, pending achievement of MMI--given her limited education, job skills, and language. Therefore, the review panel erred in finding that the trial court's order as to denial of temporary disability benefits complied with rule 11. However, counsel for IBP suggests that no explanation is needed, because Ana was working and then was fired for "misconduct," which precludes an award of temporary partial disability because her present inability to work is not due to her injuries but to her misconduct. We think the law is otherwise, as shown by the Nebraska Supreme Court's holding in Aldrich v. ASARCO, Inc., 221 Neb. 126, 128, 375 N.W.2d 150, 152 (1985):
Earning power is not synonymous with wages . . . and the fact of termination or the reason for it is irrelevant if the plaintiff sustained a compensable injury. The fact that an employer has terminated the employment of an employee, whose ability to perform the work for which he is fitted has been restricted due to an injury arising out of and in the course of his employment, does not destroy the right of the employee to compensation for the injury.
Therefore, the termination for "misconduct" does not, in itself, decide the issue.
Additionally, because the trial court's award did not comply with rule 11 as to temporary partial disability, the review panel was precluded from determining that the denial of temporary partial disability was
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