Visoso v. Cargill Meat Solutions

778 N.W.2d 504, 18 Neb. Ct. App. 202
CourtNebraska Court of Appeals
DecidedDecember 8, 2009
DocketA-09-339
StatusPublished
Cited by13 cases

This text of 778 N.W.2d 504 (Visoso v. Cargill Meat Solutions) is published on Counsel Stack Legal Research, covering Nebraska Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Visoso v. Cargill Meat Solutions, 778 N.W.2d 504, 18 Neb. Ct. App. 202 (Neb. Ct. App. 2009).

Opinion

778 N.W.2d 504 (2009)
18 Neb. App. 202

Odilon VISOSO, also known as Adam Rodriguez, appellee,
v.
CARGILL MEAT SOLUTIONS, appellant.

No. A-09-339.

Court of Appeals of Nebraska.

December 8, 2009.

*508 James D. Hamilton and Amanda A. Dutton, of Baylor, Evnen, Curtiss, Grimit & Witt, L.L.P., Lincoln, for appellant.

Ryan C. Holsten and Travis Allan Spier, of Atwood, Holsten & Brown, P.C., L.L.O., Lincoln, for appellee.

SIEVERS and CASSEL, Judges, and HANNON, Judge, Retired.

SIEVERS, Judge.

This appeal presents the question of whether the employee's status as an illegal immigrant impacts his entitlement to temporary total disability and vocational rehabilitation under the Nebraska Workers' Compensation Act. Cargill Meat Solutions (Cargill) appeals from an order of a three-judge review panel for the Nebraska Workers' Compensation Court. The review panel affirmed the trial court's (1) running award to Odilon Visoso for temporary total disability, (2) order that Cargill was to pay $1,756 to the Schuyler Clinic, and (3) finding and order that Visoso was entitled to mileage reimbursement of $1,029.27. The review panel reversed the trial court's finding that because of his illegal alien immigrant status, Visoso was not entitled to vocational rehabilitation. We affirm.

FACTUAL BACKGROUND

On May 9, 2006, Visoso, also known as Adam Rodriguez, was working for Cargill in Schuyler, Nebraska. On that date, Visoso sustained injuries to his neck and body when a slab of meat fell from a hook and struck him on the back of the head and shoulder. Visoso sought medical treatment from the time of the injury. Treatment was initially conservative and included physical therapy, chiropractic services, pain medication, and steroid injections. Visoso eventually underwent an anterior cervical interbody diskectomy and arthrodesis surgery on October 4, 2007.

From the time of his May 9, 2006, work accident until his October 4, 2007, surgery, Visoso continued to work at Cargill on light duty. Visoso's employment was terminated in late October 2007 because he was an illegal, undocumented worker. As of the date of trial, January 3, 2008, Visoso testified that he had not been medically released to return to work following his October 2007 surgery.

We note that Visoso went by the name "Adam Rodriguez" when he applied for and obtained employment with Cargill, during the course of his employment with Cargill, while seeking medical treatment for his work-related injuries, and when he originally filed his workers' compensation lawsuit. It is undisputed that during the time of his employment with Cargill and at the time of trial, Visoso was an illegal, undocumented alien. Visoso testified that he came from Mexico and that he illegally entered the United States in 2002. Cargill claims to have been unaware of Visoso's illegal status until October 2007, although he revealed such status on August 21, 2007, when his deposition was taken in this case.

PROCEDURAL BACKGROUND

Visoso filed his petition on November 22, 2006, alleging that on May 9, he sustained *509 personal injury in an accident arising out of and in the course of his employment by Cargill. Visoso alleged that the neck and body injuries occurred when the slab of meat fell on his head. Visoso alleged that the matters in dispute were as follows: medical costs; temporary total disability; mileage relating to his injury; and, if he had reached maximum medical improvement by the time of trial, the extent of his permanent impairment and disability and his entitlement to vocational rehabilitation.

Cargill filed its answer denying the allegations in Visoso's petition. Cargill alleged that Visoso's disability, if any, did not arise out of or in the course of his employment by Cargill. Cargill further alleged that it has made payment to or on behalf of Visoso of all medical, surgical, and hospital expenses and all compensation benefits to which Visoso may be entitled or for which Cargill may be liable.

The workers' compensation court trial judge's award was filed on April 2, 2008. The judge found that on May 9, 2006, Visoso was employed by Cargill as a laborer, and that while engaged in the duties of his employment, he suffered injuries to his cervical spine as a result of an accident arising out of and in the course of his employment. The judge found that a front quarter of beef fell from a conveyor and struck Visoso on the rear of his head, neck, and shoulders. The judge found that Visoso's injury was initially diagnosed as a cervical strain but later as "annular tears at C4-5, C5-6 and cervical spondylosis." The judge held that Visoso is entitled to benefits as provided under the Nebraska Workers' Compensation Act.

The judge determined that at the time of the accident and injury, Visoso was receiving an average weekly wage of $514.56 and thus was entitled "to benefits of $343.04 per week from October 4, 2007, through the date of trial and for so long in the future as [Visoso] shall remain temporarily totally disabled and further order of the Court." We assume the last phrase in the foregoing quote from the trial judge's decision was referencing Davis v. Crete Carrier Corp., 274 Neb. 362, 740 N.W.2d 598 (2007) (employer may not unilaterally terminate workers' compensation award of indefinite temporary total disability benefits absent modification of award of benefits). The trial judge stated that he relied upon the opinions of Dr. Ric Jensen regarding Visoso's continuing temporary total disability, as well as Visoso's testimony, in making such finding. Cargill was ordered to pay medical expenses on Visoso's behalf to numerous medical providers, including the Schuyler Clinic ($1,756). Cargill was also ordered to reimburse Visoso for mileage in the amount of $1,029.27. The judge found that Cargill should pay future medical expenses reasonably necessary for evaluation and treatment of Visoso's cervical spine injury. The judge specifically found that Visoso had not reached maximum medical improvement. The judge also found that Visoso will not be entitled to vocational rehabilitation services because he is an illegal, undocumented worker.

On April 16, 2008, Cargill filed its application for review by a three-judge review panel. Cargill's application alleged that the court erred in (1) finding that Visoso was temporarily totally disabled from the date of trial for so long in the future as Visoso shall remain temporarily disabled and until further order of the court, (2) ordering payment of $1,756 to the Schuyler Clinic, and (3) ordering mileage reimbursement of $1,029.27 to Visoso.

In its order filed on February 27, 2009, the review panel noted that Visoso cross-appealed the trial court's finding that Visoso will be ineligible for vocational rehabilitation services upon achieving maximum *510 medical improvement. The review panel affirmed the trial court's award in all respects except for the trial court's determination that Visoso is not entitled to vocational rehabilitation services. The review panel reversed such determination as premature, finding:

The time to rule on [Visoso's] entitlement to vocational rehabilitation services is after [he] reaches maximum medical recovery, with his impairments and restrictions known, with his then current immigration status known, and with a contemporaneous finding made about whether or not he plans to return to his native country.

Cargill now appeals the review panel's decision.

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Bluebook (online)
778 N.W.2d 504, 18 Neb. Ct. App. 202, Counsel Stack Legal Research, https://law.counselstack.com/opinion/visoso-v-cargill-meat-solutions-nebctapp-2009.