                        IN THE NEBRASKA COURT OF APPEALS

              MEMORANDUM OPINION AND JUDGMENT ON APPEAL
                       (Memorandum Web Opinion)

                                 GOESER V. VAN METER, INC.


  NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
 AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).


                                   DAN GOESER, APPELLANT,
                                               V.

                                 VAN METER, INC., APPELLEE.


                             Filed April 7, 2020.   No. A-19-742.


       Appeal from the Workers’ Compensation Court: J. MICHAEL FITZGERALD, Judge.
Affirmed.
       Jennifer L. Turco Meyer, of Dyer Law, P.C., L.L.O., for appellant.
       L. Tyler Laflin, of Engles, Ketcham, Olson & Keith, P.C., for appellee.


       PIRTLE, BISHOP, and ARTERBURN, Judges.
       BISHOP, Judge.
       Dan Goeser was injured during the course of his employment with Van Meter, Inc., on
August 11, 2016. Although he was awarded a 35-percent loss of earning capacity, he claims the
Workers’ Compensation Court should have found that he was an odd-lot worker with a
100-percent loss of earning capacity. We affirm.
                                       BACKGROUND
       Goeser began employment with Van Meter in April 2016. On August 11, he sustained a
back injury arising out of and in the course of his employment with Van Meter, and he has
complained of severe back pain ever since. He was terminated from his employment at Van Meter
in February 2017.
       On May 11, 2017, Goeser filed a petition in the Workers’ Compensation Court seeking
compensation for injuries sustained in the course of his employment with Van Meter on August



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11, 2016. Specifically, he sought temporary and permanent disability benefits, payment of medical
expenses and mileage, future medical, right to rehabilitation, and attorney fees. In its answer, Van
Meter admitted that Goeser sustained injuries out of and in the course of his employment with Van
Meter, but the company disputed the extent of the injury, including any permanent physical
restrictions and/or resultant loss of earning capacity.
         Trial was held on January 11, 2019. The parties had reached agreement on a number of
issues. The major issue of contention, and the only issue relevant to this appeal, was Goeser’s loss
of earning capacity, and we limit our discussion of the evidence accordingly. Goeser was the only
witness to testify. However, numerous exhibits were received into evidence.
         Goeser (37 years old) testified that at the time he was hired by Van Meter in April 2016,
he had chronic conditions of fibromyalgia and depression, and he had hearing loss in both ears, a
bulging disc in his neck, and a “hip issue” on his left hip. He was able to manage these conditions
“mostly with medication,” and would ask for help “lifting or reaching” when needed. Goeser
started working for Van Meter as a “[l]ean construction coordinator”; some of his job duties
included organizing supply orders and shipments, managing heavy equipment, and performing
tool maintenance and inventory. On August 11, Goeser injured his back when he squatted down
to lift some sheet metal into a dumpster. He “felt a sharp pain in [his] back towards the middle.”
Goeser initially self-treated with ice, ibuprofen, rest, massage, and a “TENS” unit. When those
methods did not work, he went to his family doctor, who then referred him to a back specialist,
Dr. Matthew P. West.
         Medical records from Dr. West were received into evidence. Dr. West first saw Goeser on
September 7, 2016, and assessed him with “[m]echanical/myofascial thoracolumbar pain” and
“[m]idline thoracic pain, intermittent aching around the ribs.” Goeser was to initiate physical
therapy, a steroid dose pack taper was described, and other medications were to be utilized. Dr.
West’s September 7 return to work/status report form had checked boxes indicating that Goeser
could work full-time on light duty and was to “change positions as needed for symptom control.”
A thoracic MRI in October 2016 revealed a small disc protrusion at T6-7. Goeser later received an
interlaminar epidural steroid injection for “[d]iskogenic thoracic pain” on November 30. Dr.
West’s December 16 return to work/status report form had checked boxes indicating that Goeser
could work full-time on light-medium duty and again indicating that he was to “change positions
as needed for symptom control”; a subsequent report form dated February 3, 2017, stated “continue
current restrictions.”
         Goeser testified that from the time of his accident in August 2016, he continued to show
up to work at Van Meter, but “didn’t do much work.” He was under restrictions, but “[t]here wasn’t
much light duty that I could do, so . . . they kept me mostly in the trailer on the computer,” or
sometimes Goeser would drive something to another place on site. Goeser was terminated from
his employment at Van Meter on February 15, 2017, because they eliminated his position and there
were no other positions that could accommodate his restrictions. However, the company paid him
until March 1 so that he could have insurance through March.
         Medical records from Dr. West show that Goeser received a second interlaminar epidural
steroid injection for “[d]iskogenic thoracic pain” on March 1, 2017. And a return to work/status
report form dated March 13 had checked boxes indicating that Goeser could work full-time
“[s]edentary.” Progress notes from March 27 stated that Goeser was unable to complete a full


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regimen of physical therapy as recommended because Goeser reported that workers’ compensation
had not approved additional visits. During his testimony, Goeser agreed there was a gap in
treatment from March to October 2017 “when the work comp insurance was denied.”
         In April 2017, Dr. Dean Wampler performed an independent medical examination (IME)
of Goeser. (Dr. Wampler had previously performed an IME in January, but did not determine that
Goeser was at maximum medical improvement (MMI) at that time.) In his April report, Dr.
Wampler stated, “I disagree with Dr. West and I do not believe there are any additional treatments,
interventions, or procedures that can be reasonably expected to improve Mr. Goeser’s symptoms
or functions,” and MMI “should have been assigned on Dr. West’s last visit of March 27, 2017.”
(Underscoring in original.) Dr. Wampler concluded that Goeser sustained a 1-percent permanent
partial impairment of the whole person as a result of his work injury; he subsequently noted that
Goeser did not require any permanent physical restrictions.
         Progress notes by Dr. West reveal that Goeser returned to see him on October 26, 2017,
and that “[s]ymptoms have returned to some extent through the mid back region.” Dr. West
recommended a medication regime and physical therapy with a transition to a work hardening
program.
         Goeser testified that after being terminated from Van Meter in February 2017, he applied
for jobs weekly, but Cox Communications (Cox) was one of the few companies that would give
him an interview. Goeser was hired to do residential customer service at Cox, and started his
employment on December 2, 2017. Goeser said that at the time he was in the “sedentary” category
with the restrictions given to him by Dr. West, and his position at Cox was a sedentary job assisting
customers over the phone. Goeser stated, “[d]uring the training I was able to stand up, sit down,
lay down in the classroom, if needed, stretch,” and they had breaks almost every hour. After the
6-week training period, Goeser began the transition period where he had hands-on training with
people listening in on calls. Goeser asked for a tall-back chair that was more supportive for his
back, and for a sit-stand desk. (A return to work/status report form from Dr. West dated February
5, 2018, had a checked box indicating that Goeser was to “[c]hange positions as needed for
symptom control,” and in the comments section Dr. West wrote, “sit to stand desk” and
“workstation.” A subsequent form dated February 13 indicated a “[l]ight” duty category, and had
a written notation of “10 min.” next to “[c]hange positions as needed for symptom control.”)
Goeser testified that he was provided a sit-stand desk, but was told there was not a tall-back chair
for him. Goeser stated, “Between the -- being stationary at a desk, sitting there and standing, it was
very uncomfortable, very painful.” “Most of the days when I got home I was just so worn out and
so -- so miserable that I didn’t sleep very well. I ended up missing quite a bit of hours and days
from calling in from being in pain.”
         According to Goeser, he went to “HR” at Cox to resign (date not specified) because he was
not physically capable of doing the job, but they provided him a different chair and he gave that a
try; “It helped a little bit but it still wasn’t enough.” (A return to work/status report form from Dr.
West dated March 7 had a checked box indicating that Goeser was only to work “[p]art-time,” 4
hours per day.) Goeser testified that Dr. West put him down to a 4-hour day because that was about
the most he could do, especially after sitting in a car for the 25 to 35 minute commute from home
(he would get to work early so that he could lay on the break room couch to ease the pain before
starting work). However, Goeser said that Cox could only accommodate the 4-hour work day for


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about a week before he had to resign. Between January 1 and March 7, Goeser missed several days
of work due to pain, and even if he had a doctor’s note he still got an “occurrence” penalty for
missing work. He had been given warnings about his absences, and he did not qualify for medical
leave or FMLA because he had not worked for the company long enough. According to Goeser,
he was told that on his next absence he would be let go, so he resigned to stay in good standing
with Cox. (Our record indicates that Goeser resigned in mid-March.) Goeser testified that after
leaving Cox, he applied for jobs “[a]nywhere [he] could find,” but “couldn’t find anything that
would . . . call [him] back.” On cross-examination, Goeser admitted he never called to follow up
on positions for which he applied.
         A return to work/status report form from Dr. West dated March 22, 2018, had checked
boxes indicating that Goeser was only to work in a “light” duty category, “[p]art-time,” 4 hours
per day, 5 days per week, and was to “[c]hange positions as needed for symptom control,” with a
written notation of 15 minutes. Progress notes from March 22 stated that Dr. West was going to
have Goeser obtain a surgical opinion. Dr. West’s progress notes from June 14 stated that Goeser
“had a surgical opinion with no surgical intervention recommended.” Dr. West then referred
Goeser for a functional capacity evaluation (FCE) to be completed “for documentation and
recommendations with regards to permanent work restrictions moving forward.”
         The FCE was conducted on July 10, 2018, and the testing was determined to be valid by
the physical therapist who conducted the evaluation. The FCE noted Goeser’s lifting and carrying
capacities during the exam. It also stated that Goeser “maintained a sitting posture for 13 minutes
on average between the lobby and exam room”; “[s]tanding tolerance was 43 minutes on the initial
functional portion of testing”; “[h]is standing tolerance significantly decreased during the second
half of testing”; [a]verage standing tolerance in a full work day would be expected to be
significantly less”; “[s]itting and standing tolerance is safe on an occasional basis”; and Goeser
“required 2 rest breaks in supine with complaints of spasms and pain with deep breathing.” Goeser
testified that after his FCE he was in a lot of pain, was “totally bedridden,” and did not sleep for 3
or 4 days.
         In a letter to Van Meter’s counsel dated August 3, 2018, Dr. West stated that Goeser was
at MMI on June 14 and had a 6-percent permanent impairment rating to the body as a whole. Dr.
West also stated that he agreed with the findings of the FCE, and that in his medical opinion,
permanent restrictions
         would include light to medium work duty level with occasional lifting of up to 35 pounds,
         frequent lifting of up to 15 pounds, and constant lifting of up to 7 pounds. The work
         restrictions would also include repositioning every 15 minutes from sit to stand as needed
         for comfort. Would also recommend only occasional bending, lifting and twisting activity
         as well as any repetitive overhead activity involving the upper extremities.

        Based on Dr. West’s recommendation, Goeser attended a pain management program at the
Nebraska Medical Center from September 4 through September 20, 2018. The psychology
discharge summary stated that while in the program, Goeser participated in a daily exercise
regimen, attended educational lectures, participated in psychotherapy sessions, and worked toward
weekly goals set with the assistance of staff. He “was compliant with treatment.” Physical therapy
notes from the program stated that Goeser’s “sitting tolerance is at least 20 continuous minutes


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during lectures when distracted,” “[h]e has been standing on average 2-3 times during a 60 minute
lecture and typically uses ice just before the lecture for increased tolerance.” Goeser testified the
program was Monday through Friday, from 8 a.m. until approximately 4 p.m., and he iced as
needed, about three to four times per day. He stated he missed 2 days in 1 week because of pain,
and he was not able to complete the pain management program because the advanced exercises
and the commute made his pain worse. Goeser stated, “[T]owards the end of the third week, I was
doing the exercises in the morning, and it was just so painful that I had tears coming down”; he
had to lay down for 2 to 3 hours icing his back. The psychology discharge summary stated:
        Unfortunately, Mr. Goeser’s treatment was complicated by increasing pain symptoms and
        difficulty tolerating the physical therapy regimen. . . . [T]he patient’s primary physical
        therapist[] expressed concern about his difficulties and the possibility that he may have an
        acute pain problem in addition to his chronic pain. As a result, Mr. Goeser’s treatment at
        the Pain Management Program was terminated early.

Physical therapy progress notes from the pain management program stated “the team determined
ending the program at this time may be in [Goeser’s] best interest due to his pain progression and
[Goeser] agreed with the recommendation.” Goeser was to continue with his home exercise
program at a slower rate than required at the program. He was also to followup with his physician.
         Goeser stated he then went back to Dr. West and was assigned permanent restrictions. “I
told him . . . my [sitting and standing] max[] is 10 to 15 minutes, 20 minutes on a very, very good
day, or right after icing, and he agreed.” A return to work/status report form from Dr. West dated
October 9, 2018, had checked boxes indicating that Goeser could work “[f]ull time” in a “[l]ight
med” duty category (which, according to the form, has a “[l]ift, carry, push-pull force” of 35
pounds occasionally, 15 pounds frequently, and 7 pounds constantly), could do occasional bending
and twisting of the back/neck, and was to “[c]hange positions as needed for symptom control”
with a handwritten notation of “15 min”; there were also handwritten comments for a sit to stand
desk, a chair with back support, and to allow Goeser a 15-minute break to ice his back three times
a day.
         Ted Stricklett, the vocational consultant agreed upon by the parties, performed a loss of
earning capacity analysis, and his report was dated November 6, 2018. Stricklett did not testify at
trial, but his report was received into evidence. In his report, Stricklett stated he interviewed Goeser
on October 8, and he also reviewed a letter from Van Meter’s counsel to the parties dated
September 28, emails between the parties dated October 3, IME reports from Dr. Wampler dated
January and April 2017, medical records from Dr. West, and the FCE. According to Stricklett’s
report,
         [w]hen evaluating the effect of a permanent impairment upon one’s earning capacity, four
         factors must be considered: one’s ability to procure employment generally; one’s ability to
         earn wages in one’s employment; one’s ability to perform the tasks of the work in which
         one is engaged; and, one’s ability to hold a job obtained.

Stricklett provided two opinions, one that took into consideration the opinion of Dr. Wampler, and
a second that took into consideration the permanent physical restrictions that were identified by
Dr. West on October 9, 2018. Stricklett stated, “If consideration is given to the opinion of Dr.


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Wampler, that Mr. Goeser has no permanent physical restrictions as a result of his [work injury],
then his loss of earning capacity is 0%.” However, “If consideration is given to the permanent
restrictions that have been recommended by Dr. West, it is my opinion that Mr. Goeser would be
an ‘odd-lot’ worker and his loss of earning capacity would be 100%.”
         When considering Dr. West’s restrictions, Stricklett determined that Goeser’s loss of
access to jobs was approximately 86 percent. Stricklett noted that he conducted a labor market
research study and was unable to identify suitable employment for Goeser in the open labor market.
Although two employers stated that they may be able to accommodate Goeser’s restrictions, they
could not guarantee that parts of the job would not require the ability to stand for more than 15
minutes or require bending and twisting on more than an occasional basis; further, the employers
noted it would be difficult to allow for three 15-minute breaks so that Goeser could ice his back.
According to Stricklett, “Goeser’s previous employment is classified in the Light, Medium, and
Heavy physical demand category or the positions require frequent bending, stooping, and standing.
Therefore, it appears that Mr. Goeser meets the definition of an odd-lot worker.”
         In his progress notes from December 11, 2018, Dr. West stated that Goeser
         [t]olerates the Butran’s patch well and it is effective for his symptoms. He has tried multiple
         other medication regimens and has the chronic thoracic pain at this time. Has been through
         therapy and chiropractic care as well. He is functional on this medication and continues to
         work. No progressive neurological changes or new symptoms. Overall doing pretty well.

The progress notes also stated, “Work restrictions updated today on a permanent basis.” The return
to work/status report form dated December 11 had checked boxes indicating that Goeser could
work “[f]ull time” in a “[l]ight med” duty category (which, according to the form, has a “[l]ift,
carry, push-pull force” of 35 pounds occasionally, 15 pounds frequently, and 7 pounds constantly),
could do occasional bending and twisting of the back/neck, and was to “[c]hange positions as
needed for symptom control”; handwritten comments/instructions stated chair with a back, sit to
stand desk, and ice three to four times daily “15 min in chair.”
        Additionally on December 11, 2018, Dr. West answered two questions posed in a letter
from Van Meter’s counsel on November 29. Counsel’s letter stated he was in receipt of Dr. West’s
August 3 and October 9 reports regarding Goeser’s permanent restrictions, and counsel asked that
Dr. West “please clarify the same based upon our discussion.” The letter then contained the
following.
               1. I previously gave the opinion that Mr. Goeser should reposition every 15 minutes
        from sit to stand as needed for comfort. I do not believe that it is medically necessary that
        he reposition from sit to stand every 15 minutes. The intent was to convey my opinion that
        he should be allowed to move positions as needed for comfort during an 8 hour work day,
        which I do believe is medically necessary.
               Do you agree with these statements and do they accurately convey your opinion on
        permanent restrictions as you intended?
               [Blank lines to mark for “YES” or “NO.”]
               2. I previously gave the opinion that Mr. Goeser should be allowed a 15 minute
        break for icing three times daily. The intent was to convey my opinion that he should be



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       allowed to ice his back as needed for comfort, the same of which could be done at a work
       station.
                Do you agree with these statements and do they accurately convey your opinion on
       permanent restrictions as you intended?
                [Blank lines to mark for “YES” or “NO.”]

Dr. West put an “X” to mark “YES” to both questions.
         In a letter to both parties’ counsel dated December 14, 2018, Stricklett noted that he had
received an email from Van Meter’s counsel on December 12 with an updated medical report from
Dr. West. Counsel requested that Stricklett review Dr. West’s updated report and issue a
supplemental loss of earning capacity analysis. In particular, Stricklett noted that on December 11
Dr. West checked “Yes” in response to the two questions posed by Van Meter’s counsel above. In
his report, Stricklett stated, “If consideration is given to the physical restrictions that have been
assigned by Dr. West on 10/9/18 and 12/11/18, it is my opinion that Mr. Goeser’s loss of earning
capacity would be approximately 35%.” He noted that appropriate placement considerations for
Goeser in the open labor market included security/gate guard, light delivery driver,
telerecruiter/inbound telephone clerk, customer service representative, front desk clerk, inventory
specialist in certain settings, and cashier.
         In a subsequent email to both parties’ counsel on December 27, 2018, Stricklett confirmed
his opinion from the December 14 report. He noted that his original loss of earning capacity report
on November 6--finding a 100-percent loss of earning capacity--was based on Dr. West’s October
9 opinion that Goeser “‘must reposition every 15 minutes and he can bend and twist on an
occasional basis.’” (Emphasis in original.) Stricklett then noted that in Dr. West’s opinion on
December 11 and the “Return to Work/Status Report Form” from that same day, Dr. West did not
indicate that Goeser must reposition every 15 minutes as he had previously noted on October 9;
rather, in his December 11 opinion “Dr. West noted that Mr. Goeser does NOT need to reposition
every 15 minutes but ‘be allowed to move positions as needed for comfort during an 8-hour work
day,’” and on the work status form “Dr. West . . . checked ‘Change positions as needed for
symptom control.’” Because Dr. West no longer indicated that Goeser must reposition every 15
minutes, Stricklett’s opinion remained the same as noted in his December 14 report (i.e., that
Goeser had a 35-percent loss of earning capacity).
         Goeser testified that the December 11, 2018, appointment was the last time he saw Dr.
West. However, in a letter to Goeser’s counsel dated December 26, Dr. West stated that
“[l]ong-term chronic pain management through pain management clinic would be beneficial.” And
Dr. West’s medical records show a referral on January 9, 2019, for Goeser to have a pain
management consultation; under “[r]eferral [r]eason,” it stated “[p]atient [p]reference.”
         Goeser testified that he did not have a social life anymore, and that it was very hard for
him to function on a day-to-day basis. He “barely contribute[d] to the household.” He has to cook
dinner in stages, sitting down for a while in the process. “About the only time that [he] ever leave[s]
the house is to help . . . grocery shop” since he does the cooking, but he tries to keep it to about 30
minutes, and whenever it gets too painful, he leaves. (According to Stricklett’s original report in
November 2018, Goeser made similar statements during the interview on October 8.)



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         At the time of trial, Goeser stated he was medicating with duloxetine, baclofen, melatonin
(for sleeping), and the generic version of a Butrans patch (for pain); all but the duloxetine are
mentioned in Stricklett’s November 2018 report. Goeser testified he had not had a full night of
sleep since the accident. He can be in one position for 5 to 10 minutes on a bad day, and about 15
to 20 minutes on a good day. After sitting or standing in the same position for a while, he gets
cramping in the middle of his back “on both sides” and radiating pain through his ribs. Dr. West
recommended chronic pain management and Goeser thought this would be necessary because
based on what everyone had told him, his pain is something he would have to live with for the rest
of his life.
         Goeser did not have a college degree. When asked if, prior to his injury, he had ever done
a sedentary job, Goeser responded that he had done some technical support, but most of his jobs
had been physical and active. He has fibromyalgia, a preexisting condition, and “the more active
[he] can be, the less pain [he] ha[s].” (His fibromyalgia was mentioned throughout the medical
reports and in Stricklett’s loss of earning capacity analysis.) Goeser wants to work, but does not
see any way he could work 40 hours per week. He stated, “I can barely make it through the day at
home, let alone . . . get employment and be dependable.” On cross-examination, Goeser
acknowledged that, at the time of trial, he was not limited by medical providers from working a
40-hour work week. Goeser last saw Dr. West on December 11, 2018, and was released to full
duty, and to reposition as needed. Goeser stated that when he asked the nurse about a 15-minute
up/down restriction, “the nurse came back and said that [Dr. West] was told by [Goeser’s] lawyer
that it didn’t have to be in writing to be 15 minutes, even though he agreed that the 15 minutes was
needed.” On redirect, Goeser agreed that at the last appointment with Dr. West, it was his
(Goeser’s) understanding that Dr. West was referring him to another doctor. Goeser intended to
bring up the sit/stand restriction with his new pain management doctor.
         The compensation court issued its award on May 14, 2019, and its further award on July
1. The court found that Goeser reached MMI on June 14, 2018, ordered Van Meter to pay certain
medical expenses, and determined that Goeser was entitled to specified temporary benefits and
future medical care. The court, referencing Stricklett’s December 2018 report and subsequent
email, agreed that Goeser had a 35-percent loss of earning power. Additionally, the court ordered
that Goeser was entitled to a vocational rehabilitation evaluation.
         Goeser now appeals.
                                   ASSIGNMENT OF ERROR
       Goeser assigns that the compensation court erred when it determined he only suffered a
35-percent loss of earning capacity, when the evidence before the court supported a finding that
he was an odd-lot worker entitled to permanent total disability benefits.
                                   STANDARD OF REVIEW
       A judgment, order, or award of the 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 judgment, order, or award; or (4)




                                               -8-
the findings of fact by the compensation court do not support the order or award. Martinez v. CMR
Constr. & Roofing of Texas, 302 Neb. 618, 924 N.W.2d 326 (2019).
        An appellate court is obligated in workers’ compensation cases to make its own
determinations as to questions of law. Interiano-Lopez v. Tyson Fresh Meats, 294 Neb. 586, 883
N.W.2d 676 (2016).
        Whether a claimant has suffered a loss of earning power or is totally disabled are questions
of fact. Armstrong v. State, 290 Neb. 205, 859 N.W.2d 541 (2015). Upon appellate review, the
findings of fact made by the trial judge of the compensation court have the effect of a jury verdict
and will not be disturbed unless clearly wrong. Davis v. Goodyear Tire & Rubber Co., 269 Neb.
683, 696 N.W.2d 142 (2005).
                                            ANALYSIS
         Goeser claims that the compensation court erred by finding that he had a 35-percent loss
of earning power because the evidence before the court supported a finding that he was an odd-lot
worker entitled to permanent total disability benefits.
         Whether Goeser is totally and permanently disabled is a question of fact, and when testing
the trial judge’s findings of fact, we consider the evidence in the light most favorable to the
successful party and give the successful party the benefit of every inference reasonably deducible
from the evidence. See, Money v. Tyrrell Flowers, 275 Neb. 602, 748 N.W.2d 49 (2008).
         Total disability does not mean a state of absolute helplessness. Armstrong v. State, supra.
It means that because of an injury (1) a worker cannot earn wages in the same kind of work, or
work of a similar nature, that he or she was trained for or accustomed to perform or (2) the worker
cannot earn wages for work for any other kind of work which a person of his or her mentality and
attainments could do. Id. Furthermore, a worker may be totally disabled even though the worker
is able to work in some limited capacity. See id.
         Under the “odd-lot” doctrine, total disability may be found in the case of workers who,
while not altogether incapacitated for work, are so handicapped that they will not be employed
regularly in any well-known branch of the labor market Id. The essence of the test is the probable
dependability with which the claimant can sell his services in a competitive labor market,
undistorted by such factors as business booms, sympathy of a particular employer or friends,
temporary good luck, or the superhuman efforts of the claimant to rise above his crippling
handicaps. Heiliger v. Walters & Heiliger Electric, Inc., 236 Neb. 459, 461 N.W.2d 565 (1990).
         Goeser argues that the “trial court’s determination [(that he had a 35-percent loss of earning
power)] fails to recognize that even though Dr. West’s restrictions of October 2018 [(“Change
positions as needed for symptom control” with a handwritten notation of “15 min”)] and December
2018 [(“Change positions as needed for symptom control”)] are worded differently, they are
functionally the same restriction when put into practice by an employer.” Brief for appellant at 21.
And “[i]f the restrictions are functionally the same, Stricklett’s opinion that the October 2018
restrictions produce[] an odd-lot determination and the December 2018 restrictions produce a 35%
determination is [sic] erroneous and unsound.” Id.
         A loss of earning power evaluation performed by a vocational rehabilitation counselor
selected by the parties is entitled to a rebuttable presumption of correctness. Frauendorfer v.
Lindsay Mfg. Co., 263 Neb. 237, 639 N.W.2d 125 (2002). See, also, Neb. Rev. Stat. § 48-162.01(3)


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(Reissue 2010). In this case, Stricklett was the vocational consultant agreed upon by the parties.
He provided an initial loss of earning capacity analysis in November 2018 opining that Goeser was
an odd-lot worker based on the restrictions in Dr. West’s October 9 report. However, Dr. West
subsequently clarified the October 9 restrictions given by him, as evidenced by him putting an “X”
to mark “YES” to questions posed by Van Meter’s counsel. The effect of the clarification was to
note that Goeser should be allowed to change positions as needed, rather than to note a specific
time period of 15 minutes. Additionally, in the work/status report form dated December 11, Dr.
West checked the box indicating that Goeser was to “[c]hange positions as needed for symptom
control.” After Dr. West’s clarifications, Stricklett updated his report in December, at which time
he opined that Goeser had a 35-percent loss of earning capacity.
        Van Meter contends that Stricklett’s December 2018 report opining that Goeser had a
35-percent loss of earning capacity “should be given the rebuttable presumption of correctness and
given that the same was not rebutted it should be presumed correct.” Brief for appellee at 9. Van
Meter likens this case to Variano v. Dial Corp., 256 Neb. 318, 589 N.W.2d 845 (1999). In Variano,
“each party claim[ed] the benefit of a rebuttable presumption pursuant to . . . § 48-162.01 . . . based
upon seemingly inconsistent opinions regarding loss of earning power expressed by the same
court-appointed vocational rehabilitation counselor.” Id. at 319, 589 N.W.2d 847. In his first report
dated September 1996, the appointed counselor stated that Variano required vocational
rehabilitation services and would sustain a 25- to 30-percent loss of earning capacity as a result of
his work-related injury. After submitting the report, the counselor continued working toward
identifying a specific vocational goal which would restore Variano to suitable work, but before
completing that process the counselor requested clarification from Variano’s primary care
physician concerning Variano’s functional impairments and restrictions. After receiving the
information from the primary care physician, the counselor completed his vocational analysis and
concluded in a February 1997 letter report that Variano would not benefit from vocational
rehabilitation. In March, Variano’s attorney wrote a letter to the counselor requesting clarification
of the counselor’s opinion regarding Variano’s loss of earning power, as it appeared that the
counselor concluded that Variano’s loss of earning power was now 100 percent, as opposed to the
earlier opinion of 25 to 30 percent. In the counselor’s response letter, he stated his opinion that
Variano would not benefit from vocational rehabilitation services and was totally disabled as a
result of the injury. The trial court, relying on the counselor’s September 1996 report, found that
Variano was not totally disabled and had sustained only a 30-percent loss of earning capacity.
However, on appeal, the Nebraska Supreme Court found that the September report constituted the
counselor’s opinion up to that point in time as to what Variano’s loss of earning capacity would
likely be after he received the vocational rehabilitation services which the counselor then believed
would benefit him. However, in February 1997, the counselor described his unsuccessful efforts
to identify suitable employment which would be consistent with Variano’s physical restrictions,
and the counselor therefore felt Variano would not benefit from vocational rehabilitation services.
Therefore, the Nebraska Supreme Court stated that it appeared that was the counselor’s final
opinion based upon his evaluation of Variano’s potential for employment, which the counselor
had not completed at the time of his earlier report. The Nebraska Supreme Court concluded that
“when considered together in their chronological sequence, the counselor’s opinions establish[ed]
a rebuttable presumption that the employee sustained a total loss of earning power as a result of


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his compensable injury and that the evidence [was] insufficient as a matter of law to rebut the
presumption.” Variano v. Dial Corp., 256 Neb. At 319, 589 N.W.2d at 847. Accordingly, the
Nebraska Supreme Court reversed and remanded to the compensation court for further
proceedings.
         Goeser on the other hand contends that Variano v. Dial Corp., supra, is factually
distinguishable because “Stricklett’s second report was not issued ‘as part of the process of
recovery’ after [Goeser] had participated unsuccessfully in a vocational rehabilitation plan.” Reply
brief for appellant at 5. Rather, “Stricklett’s second report was authored at the request of Van Meter
in response to what Stricklett assumed was a different set of facts (i.e., a change or ‘clarification’
in postural limitations by Dr. West).” Id. at 5. Goeser contends that this case is more analogous to
Noordam v. Vickers, Inc., 11 Neb. App. 739, 659 N.W.2d 856 (2003). In Noordam, the vocational
rehabilitation counselor submitted two reports regarding Noordam’s loss of earning capacity.
According to the trial court, the counselor opined that Noordam had anywhere from a 0-percent
loss of earning capacity to a 15-percent loss of earning capacity, depending upon which physician’s
restrictions were used. After considering the counselor’s report, the FCE, and the expert testimony,
the trial court concluded that Noordam suffered a 15-percent loss of earning capacity. On appeal,
this court stated “the evidence indicates that [the counselor’s findings] in her reports are
independent of each other and based on a different set of facts in one situation versus the other”;
“[t]he contrary opinions do not reflect Noordam’s recovery, but, rather, [the counselor’s]
uncertainty as to the underlying facts.” Noordam v. Vickers, Inc., 11 Neb. App. at 745, 659 N.W.2d
at 861. We noted that § 48-162.01(3) does not discuss multiple reports by the same vocational
rehabilitation counselor and which report should receive the presumption, and that § 48-162.01(3)
does not preclude or limit the trial court from making factual findings to determine which report
is entitled to the rebuttable presumption. We therefore concluded:
         [W]hen a vocation rehabilitation counselor submits multiple reports that are determined to
         be written not because a process of recovery was incomplete from the time a prior report
         was written, but, rather, because a counselor gives differing opinions each based on a
         different factual scenario, it is up to the trial court to make factual findings to determine
         which report should be given the rebuttable presumption.

Noordam v. Vickers, Inc., 11 Neb. App. at 746, 659 N.W.2d at 861.
        This court also addressed a case involving multiple loss of earning reports by the same
counselor in Ladd v. Complete Concrete, 13 Neb. App. 200, 690 N.W.2d 416 (2004). In Ladd, a
court-appointed vocational rehabilitation counselor authored a report on loss of earning capacity
concluding that Ladd’s loss of earning capacity was 100 percent; the counselor subsequently
drafted a letter to address questions from the employer’s counsel and at that time concluded that
Ladd’s loss of earning capacity was 70 percent (this conclusion considered a physician’s letter
given to the employer’s counsel regarding how Ladd’s employment opportunities might be
improved with a hearing aid in certain environments). The trial court found that the physician’s
letter could not form the basis for the counselor to revise her opinion, and concluded that Ladd
was permanently and totally disabled. On appeal, this court concluded that the situation was more
analogous to Noordam v. Vickers, Inc., supra, than Variano v. Dial Corp., supra, and that the trial
court was therefore entitled to make factual findings to determine which report was permitted the


                                                - 11 -
rebuttable presumption of correctness. And although the trial court did not make a finding with
regard to the statutory presumption, it implicitly determined that the earlier report was entitled to
the presumption, a determination which this court could not say was clearly erroneous.
        In closing arguments before the compensation court, Van Meter’s counsel acknowledged
that the only difference between Stricklett’s November and December 2018 loss of earning
capacity reports was that the November report was based on a change in positions with an actual
time frame of 15 minutes, and the December report was based on a change in positions as-needed.
Goeser’s counsel argued that “the troubling thing about this . . . is the functional restriction on my
client could be worse than 15 minutes if he is having a lot of pain,” “[i]t could be that he needs to
move in six minutes.” Goeser’s counsel also noted that when an agreed upon expert “changes their
opinion in multiple reports, not because of progression of the actual condition but because of some
scenario that they’re giving you,” then the judge “get[s] to decide” the rebuttable presumption.
The trial court did not “see that much difference between . . . every 15 minutes and as-needed.”
But then later noted that the FCE limited Goeser’s sitting but said he could stand for 43 minutes
in the morning and then a shorter period of time in the afternoon; and the “FCE gave some
indication he can do some kind of work.” However, the court voiced its concern as to whether
somebody would hire Goeser with his restrictions.
        In its award, the trial court recounted that in Dr. West’s letter dated December 11, 2018,
Dr. West clarified Goeser’s restrictions and did not believe that it was medically necessary that
Goeser reposition from sitting to standing every 15 minutes; rather his intent was that Goeser be
allowed to change positions as needed for comfort during an 8 hour workday, which Dr. West did
believe was medically necessary. The compensation court noted that Dr. West’s opinion of
December 11 was presented to Stricklett who prepared a loss of earning power report finding
Goeser had a 35-percent loss of earning power. The compensation court agreed that Goeser had a
35-percent loss of earning power, and also found that Goeser was unable to return to his previous
employment and was therefore entitled to a vocational rehabilitation evaluation if he desired one.
        We agree this case is more akin to Noordam v. Vickers, Inc., supra, and Ladd v. Complete
Concrete, supra, because Stricklett’s reports were written not because a process of recovery was
incomplete from the time a prior report was written; rather, he gave differing opinions each based
on a different factual scenario. Thus, the trial court was entitled to make factual findings to
determine which report permitted the rebuttable presumption of correctness.
        Although the trial court did not explicitly grant the rebuttable presumption of correctness
to any one of Stricklett’s opinions, the court apparently concluded that such presumption should
be applied to Stricklett’s opinion that Goeser had incurred a 35-percent loss of earning capacity, a
determination which we cannot say was clearly erroneous.
        As stated in Variano v. Dial Corp., 256 Neb. 318, 326, 589 N.W.2d 845, 851 (1999),
        [a] “rebuttable presumption” is generally defined as “[a] presumption that can be
        overturned upon the showing of sufficient proof.” . . . “In all cases not otherwise provided
        for by statute or by these rules a presumption imposes on the party against whom it is
        directed the burden of proving that the nonexistence of the presumed fact is more probable
        than its existence.”

(Citations omitted.)


                                                - 12 -
By finding that Goeser was entitled to a loss of earning capacity of 35 percent, the trial court
implicitly found that Goeser had not rebutted the presumption that Stricklett’s December 2018
report was correct.
         However, Goeser argues that the trial court’s factual finding that Goeser’s loss of earning
capacity was 35 percent was not supported by the evidence. Goeser claims that the evidence
showed: he would have to change positions at least every 15 minutes to control his symptoms, and
more often than that on bad days; he was unable to keep his job with Cox because they were unable
to accommodate his restrictions and the performance of his job duties and the daily commute lead
to a significant and intolerable increase of his pain; and it was unreasonable to think Goeser would
be able to work full-time when he was too disabled to participate in a full-time pain management
program aimed at simply treating his pain. “All of these facts unequivocally support a finding that
Goeser is not employable in any competitive labor markets.” Brief for appellant at 21.
         However, while the record does show that Goeser’s sitting posture was limited, it also
showed that his standing posture was not as limited. The FCE specifically noted that Goeser
initially had a standing tolerance of 43 minutes, but that decreased over time during testing. And
Stricklett’s November 2018 loss of earning capacity report referenced that two employers could
not guarantee that parts of the job would not require the ability to stand for more than 15 minutes.
Additionally, physical therapy notes from the pain management program reveal that it was the
physical therapy regimen (particularly the advanced exercises) that caused Goeser’s pain to
become so severe that he could not complete the program. But the notes also reveal that Goeser’s
“sitting tolerance is at least 20 continuous minutes during lectures when distracted,” “[h]e has been
standing on average 2-3 times during a 60 minute lecture and typically uses ice just before the
lecture for increased tolerance.” And Dr. West’s return to work/status report form dated December
11, 2018, stated that Goeser is capable of working full-time with certain restrictions.
         Whether a claimant has suffered a loss of earning power or is totally disabled are questions
of fact, and we cannot say that the compensation court erred in finding that Goeser had a 35-percent
loss of earning capacity. See, Armstrong v. State, 290 Neb. 205, 859 N.W.2d 541 (2015); Davis v.
Goodyear Tire & Rubber Co., 269 Neb. 683, 696 N.W.2d 142 (2005).
                                          CONCLUSION
       For the reasons stated above, we affirm the decision of the workers’ compensation court.
                                                                                     AFFIRMED.




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