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Odilon Visoso, Also Known As Adam Rodriguez v. Cargill Meat Solutions

February 22, 2013

ODILON VISOSO, ALSO KNOWN AS ADAM RODRIGUEZ, APPELLANT,
v.
CARGILL MEAT SOLUTIONS, APPELLEE.



Appeal from the Workers' Compensation Court: roNald l. broWN, Judge.

The opinion of the court was delivered by: Wright, J.

Date: 02/22/2013

ebraska advaNce sheets 272 285 NEBRASKA REPORTS

knowingly, and voluntarily admits that he does not contest the allegations being made against him. The court accepts respond ent's voluntary surrender of his license to practice law, finds that respond ent should be disbarred, and hereby orders him disbarred from the practice of law in the State of Nebraska, effective immediately. Respondent shall forthwith comply with all terms of Neb. Ct. R. § 3-316 of the disciplinary rules, and upon failure to do so, he shall be subject to punishment for contempt of this court. Accordingly, respondent is directed to pay costs and expenses in accordance with Neb. Rev. Stat. §§ 7-114 and 7-115 (Reissue 2012) and Neb. Ct. R. §§ 3-310(P) and 3-323 of the disciplinary rules within 60 days after an order imposing costs and expenses, if any, is entered by the court.

JudgmeNt of disbarmeNt.

___ N.W.2d ___

Cite as

1. Workers' Compensation: Appeal and Error. A judgment, order, or award of the Workers' Compensation Court may be modified, reversed, or set aside only upon the grounds that (1) the compensation court acted without or in excess of its powers; (2) the judgment, order, or award was procured by fraud; (3) there is not sufficient competent evidence in the record to warrant the making of the order, judgment, or award; or (4) the findings of fact by the compensation court do not support the order or award.

2. ____: ____. With respect to questions of law in workers' compensation cases, an appellate court is obligated to make its own determination.

3. ____: ____. On appellate review of a workers' compensation award, the trial judge's factual findings have the effect of a jury verdict and will not be disturbed unless clearly wrong.

4. Workers' Compensation: Proof. In a proceeding to modify a prior workers' compensation award, the employer has the burden of establishing a decrease of incapacity and the employee has the burden of establishing an increase.

5. Workers' Compensation. Temporary disability benefits should be paid only to the time when it becomes apparent that the employee will get no better or no worse because of the injury.

6. ____. Temporary disability benefits are discontinued at the point of maximum medical improvement, because a disability cannot be both temporary and permanent at the same time.

7. Workers' Compensation: Words and Phrases. An undocumented employee is an "employee" or "worker" who is covered under the Nebraska Workers' Compensation Act.

8. Workers' Compensation. The Workers' Compensation Court cannot order vocational retraining without determining that the worker's postinjury physical restrictions and vocational impediments prevent the worker from complying with all of the lower work priorities in Neb. Rev. Stat. § 48-162.01(3) (Reissue 2010).

9. ____. If an injured employee is ineligible for the lower work priorities in Neb. Rev. Stat. § 48-162.01(3) (Reissue 2010) because the employee cannot be legally placed with the same employer or a new employer, then the compensation court cannot order retraining for a new career.

10. ____. Unlike vocational retraining benefits, there are no prioritized goals that must be satisfied before a court can award indemnity for an employee's loss of earning capacity.

11. ____. Both before and after an employee's maximum medical improvement, an employee's disability as a basis for compensation under Neb. Rev. Stat. § 48-121(1) and (2) (Reissue 2010) is determined by the employee's diminution of employability or impairment of earning power or earning capacity.

12. ____. An employee's impairment of earning capacity does not depend on a finding that the employee cannot be placed in a job with the same employer or in a job with a different employer.

13. ____. An employee's illegal residence or work status does not bar an award of indemnity for permanent loss of earning capacity.

14. ____. For purposes of workers' compensation, the risk of hiring an undocumented alien falls on the employer to cover the associated costs if that worker is injured during the scope of employment.

15. ____. The Nebraska Workers' Compensation Act is designed to compensate an injured worker for two distinct losses resulting from a work-related injury or occupational disease: the loss of earning capacity based on the concept of disability and medical and other costs associated with the injury or disease.

16. ____. Because the purpose of the Nebraska Workers' Compensation Act is to compensate injured workers for injuries regardless of immigration status, the act can be applied to all workers, whether legally hired or not.

17. ____. If a workers' compensation claimant in good faith relocates to a new community, the new community may serve as the hub community from which to assess the claimant's loss of earning power.

18. ____. The first step in identifying the relevant labor market for assessing a work-er's loss of earning power is to determine whether the hub community is where the injury occurred, or where the claimant resided when the injury occurred, or where the claimant resided at the time of the hearing.

19. ____. The Nebraska Workers' Compensation Act should be construed to accomplish its beneficent purposes.

20. ____. If sufficient credible data exists for a determination of an undocumented worker's loss of earning capacity in his or her community of origin and the worker has moved for legitimate purposes, and not to increase workers' compensation benefits, then the community of origin may serve as the hub community.

21. ____. A workers' compensation award cannot be based on possibility or speculation, and if an inference favorable to the claimant can be reached only on the basis thereof, then the claimant cannot recover.

Affirmed in part, and in part reversed and remanded for further proceedings.

heavicaN, c.J., Wright, coNNolly, stephaN, mccormack, and miller-lermaN, JJ.

NATURE OF CASE

In 2006, Odilon Visoso, an undocumented worker, was injured in the course and scope of his employment with Cargill Meat Solutions (Cargill). Following a trial in 2008, he was awarded temporary total disability benefits.

In 2011, Cargill petitioned the Nebraska Workers' Compensation Court to discontinue the temporary total disability benefits, because Visoso had reached maximum medical improvement. While the action was pending in the compensation court, Visoso returned to Mexico, his country of origin. Vocational rehabilitation experts who testified at the hearing on Cargill's petition were unable to provide credible evidence of Visoso's loss of earning capacity based upon prospective employment in Mexico. The compensation court concluded that Cargill's obligation to pay Visoso temporary total disability should cease because Visoso had ...


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