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Becerra v. United Parcel Service

Court of Appeals of Nebraska

December 31, 2013

Jeffrey Becerra, appellant,
v.
United Parcel Service, appellee.

NOT DESIGNATED FOR PERMANENT PUBLICATION

Appeal from the Workers' Compensation Court: James R. Coe, Judge. Affirmed.

M.H. Weinberg, of Weinberg & Weinberg, P.C., for appellant.

Charles L. Kuper, of Larson, Kuper & Wenninghoff, P.C., L.L.O., for appellee.

Embody, Chief Judge, and Pirtle and Riedmann, Judges.

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

PIRTLE, JUDGE.

INTRODUCTION

Jeffrey Becerra appeals from an order of the Nebraska Workers' Compensation Court finding that the temporary total disability (TTD) benefits Becerra would receive during vocational rehabilitation counted toward the 300-week maximum for indemnity payments set forth in Neb. Rev. Stat. § 48-121 (Reissue 2010). The trial court also found that United Parcel Service (UPS) was entitled to a credit against the amount of weekly TTD benefits it had to pay during vocational rehabilitation because it had paid permanent partial disability (PPD) benefits for Becerra's 15-percent loss of earning capacity in full. Because we agree with the trial court that the TTD benefits during vocational rehabilitation count toward the statutory 300-week limit and that a reduction in the amount of TTD benefits during vocational rehabilitation was necessary to avoid Becerra's receiving a double payment, we affirm.

BACKGROUND

On July 21, 2010, Becerra suffered an injury in an accident arising out of and in the course of his employment. On November 23, 2011, the Workers' Compensation Court entered an award in which it accepted the parties' stipulation that Becerra sustained a 15-percent loss of earning capacity as a result of the accident and injury, entitling him to PPD benefits at the rate of $50.40 per week. The stipulation also stated that Becerra was temporarily totally disabled from July 22 to December 13, 2010, a period of 20 5/7 weeks. UPS had previously paid Becerra TTD benefits at the rate of $145.57 for 20 5/7 weeks, and therefore, he was entitled to 279 2/7 weeks of PPD at the rate of $50.40 per week for the remaining 15-percent loss of earnings. Further, the parties' stipulation stated that UPS had paid Becerra in full for the entire 279 2/7 weeks of future PPD benefits, totaling $14, 076.00. The trial court also found that Becerra was entitled to vocational rehabilitation services.

UPS appealed from the award, challenging certain aspects of the vocational rehabilitation award which are not relevant to this appeal. The Nebraska Supreme Court affirmed the trial court's award. See Becerra v. United Parcel Service, 284 Neb. 414, 822 N.W.2d 327 (2012).

In January 2013, the trial court approved a plan of vocational rehabilitation for Becerra to obtain an associate degree in automated systems technology, which was anticipated to run for a 2-year period.

In February 2013, the parties filed a "Joint Motion for Determination of the Appropriate Temporary Total Disability Rate, " at issue before us now, to resolve a dispute over whether UPS was entitled to a credit for the PPD benefits it previously paid in full against the TTD benefits Becerra would receive during vocational rehabilitation.

Following a hearing, the trial court found that pursuant to ยง 48-121, Becerra was entitled to 300 weeks of benefits, which included the weeks Becerra was in vocational rehabilitation. The trial court determined that because UPS paid the PPD benefits in full prior to any determination of any vocational rehabilitation, UPS was entitled to a credit in the amount of $50.40 per week during the time Becerra is in vocational rehabilitation and receiving TTD benefits. The court found, therefore, that the rate of TTD benefits while Becerra was in vocational rehabilitation should be $95.17 per week (TTD rate of $145.57 minus the previously paid PPD rate ...


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