Money v. Tyrrell Flowers

602 	275 NeBRASKA RePORTS
statute, the department was required to adopt and promulgate
rules and regulations to regulate the valuation process. Because
the department had not adopted and promulgated rules and
regulations governing the valuation process, we concluded that
the adjusted valuations of the department were not in conform-
ity with the law.
In the present case, § 77-4111 requires the Commissioner
to adopt and promulgate those rules and regulations, but only
those rules that are necessary for carrying out the purposes of
L.B. 775. The purpose of L.B. 775 is to “accomplish economic
revitalization of Nebraska” and to “encourage new businesses
to relocate to Nebraska, retain existing businesses and aid in
their expansion, promote the creation and retention of new jobs
in Nebraska, and attract and retain investment capital in the
State of Nebraska.”13 We conclude that promulgating rules and
regulations regarding interpretation of qualified property is not
necessary for carrying out those purposes. We, therefore, deter-
mine that this assignment of error is without merit.
CONCLUSION
For the reasons discussed above, we affirm the decision of
the district court.
A ffirmed .
13 § 77-4102.
christine m. money , Appellee , v . tyrrell floWers
And continentAl W estern group , AppellAnts .
748 N.W.2d 49
Filed May 2, 2008. 	No. S-07-681.
1. Workers’ Compensation: Appeal and Error. Under Neb. Rev. Stat. § 48-185
(Reissue 2004), an appellate court may modify, reverse, or set aside a Workers’
Compensation Court decision only when (1) the compensation court acted with-
out 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.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:54 AM CST

2. ____: ____. On appellate review, the factual findings made by the trial judge of
the Workers’ Compensation Court have the effect of a jury verdict and will not be
disturbed unless clearly wrong.
3. ____: ____. In workers’ compensation cases, an appellate court is obligated to
make its own determinations regarding questions of law.
4. Workers’ Compensation. A trial judge should base the compensation an employer
pays on the worker’s loss of earning power.
5. ____. The first step in identifying the relevant labor market for assessing a
worker’s loss of earning power is to determine whether the hub 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.
6. ____. If a claimant relocates to a new community in good faith, the new com-
munity will serve as the hub community from which to assess the claimant’s loss
of earning power.
7. Appeal and Error. Under the law-of-the-case doctrine, an appellate court’s hold-
ings on questions presented to it in reviewing the trial court’s proceedings become
the law of the case; those holdings conclusively settle, for that litigation, all mat-
ters ruled upon, either expressly or by necessary implication.
8. Actions: Res Judicata: Collateral Estoppel. Unlike the doctrines of res judicata
and collateral estoppel, which involve successive suits, the law-of-the-case doctrine
involves successive stages of one continuing lawsuit.
9. Actions: Appeal and Error. On appeal, the law-of-the-case doctrine is a rule
of practice that operates to direct an appellate court’s discretion, not to limit
its power.
10. Appeal and Error. generally, absent extraordinary circumstances, a court should
be reluctant to revisit its own prior decision or that of another court in a sin-
gle case.
11. ____. The law-of-the-case doctrine does not apply in a later appeal of the same
action if a higher court has since issued a contrary decision.
12. Workers’ Compensation. After a trial judge determines a claimant’s hub com-
munity, the trial judge may also consider whether surrounding communities are
part of the relevant labor market.
13. ____. Whether a claimant should reasonably seek work in an area outside the hub
community is a determination based on the totality of circumstances.
14. ____. In determining whether a surrounding community should be included in
the relevant labor market, a trial judge should consider the following factors: (1)
availability of transportation, (2) duration of the commute, (3) length of workday
the claimant is capable of working, (4) ability of the person to make the commute
based on his or her physical condition, (5) economic feasibility of a person in the
claimant’s position working in that location, and (6) whether others who live in the
claimant’s hub community regularly seek employment in the prospective area.
15. Workers’ Compensation: Expert Witnesses: Presumptions. The opinions of a
court-appointed vocational rehabilitation expert regarding vocational rehabilita-
tion and loss of earning power have a rebuttable presumption of validity.
16. Workers’ Compensation: Expert Witnesses: Proof. If an employer believes a
vocational rehabilitation expert has incorrectly selected the relevant geographic
areas, the employer has the burden to rebut the expert’s opinion.
MONey v. TyRReLL FLOWeRS 	603
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604 	275 NeBRASKA RePORTS
17. Workers’ Compensation. 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.
18. Workers’ Compensation: Proof. To recover workers’ compensation benefits, a
claimant must prove by a preponderance of the evidence that an accident or occu-
pational disease arose out of or occurred in the course of the employment and that
the accident or occupational disease proximately caused an injury which resulted
in compensable disability.
19. ____: ____. To recover workers’ compensation benefits, an injured worker must
prove by competent medical testimony a causal connection between the alleged
injury, the employment, and the disability.
20. Workers’ Compensation: Expert Witnesses. In assessing a claimant’s disability,
physical restrictions and impairment ratings are important, but once the claim-
ant establishes the cause of disability, the trial judge is not limited to this evi-
dence and may also rely on the claimant’s testimony to determine the extent of
the disability.
21. Workers’ Compensation: Words and Phrases. disability, in contrast to impair-
ment, is an economic inquiry. It can be determined only within the context of the
personal, social, or occupational demands or statutory or regulatory requirements
that the individual is unable to meet because of the impairment.
22. ____: ____. Total disability does not mean a state of absolute helplessness. 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.
23. Workers’ Compensation. Whether a plaintiff is totally and permanently disabled
is a question of fact.
24. Judgments: Appeal and Error. When testing the trial judge’s findings of fact, an
appellate court considers the evidence in the light most favorable to the success-
ful party and gives the successful party the benefit of every inference reasonably
deducible from the evidence.
25. Trial: Witnesses. As the trier of fact, the trial judge determines the credibility of
the witnesses and the weight to give their testimony.
Appeal from the Workers’ Compensation Court. Affirmed.
dallas d. Jones and Amanda A. dutton, of Baylor, evnen,
Curtiss, grimit & Witt, L.L.P., for appellants.
Jeffry 	d. 	Patterson, 	of 	Bartle 	& 	geier 	Law 	Firm, 	for
appellee.
heAvicAn, 	C.J., 	W right, 	connolly, 	gerrArd, 	stephAn,
mccormAck, and miller -lermAn, JJ.

connolly, J.
The appellee, Christine M. Money, suffered an injury while
working for Tyrrell Flowers in Lincoln, Nebraska. Afterward,
she moved 75 miles away to Table Rock, Nebraska. This appeal
presents two issues. First, in determining Money’s loss of earn-
ing power, did the trial judge err by excluding Lincoln and
finding that the relevant labor market was the Table Rock com-
munity? Second, did the trial judge err in finding that Money
was totally and permanently disabled as an odd-lot worker? We
conclude that the trial judge correctly decided both issues.
I. eMPLOyeR’S CONTeNTIONS
Tyrrell Flowers and Continental Western group (collectively
Tyrrell) contend a court must consider two labor markets when
a worker voluntarily moves from a large labor market to a
small labor market after sustaining a compensable injury. That
is, it contends the court must assess a worker’s loss of earning
power in relation to both the labor market where the worker
was injured and the labor market to which the worker moved
in good faith. Otherwise, Tyrrell argues that the worker will be
able to manipulate his or her loss of earning power by moving
to an area with fewer job opportunities. It further argues that
the review panel erred in affirming the trial judge’s finding in
a subsequent proceeding that Money was an odd-lot worker in
both the Lincoln and the Table Rock labor markets. It argues
that Money failed to present any evidence of her ability to
obtain employment in the Lincoln labor market.
II. BACKgROUNd
1. money ’ s inJuries And pAin A fter surgery
Tyrrell Flowers employed Money to work in the greenhouse
and make deliveries for $8 an hour. In May 2000, she tripped
on a small ledge and fell. She suffered injuries to her left chest
wall, left shoulder, and neck. After the accident, Money devel-
oped headaches and primarily left-sided neck, shoulder, and arm
pain. Testing later showed she had a herniated disk in her neck at
the C5-6 level. In June 2001, after conservative treatment failed,
a neurosurgeon recommended spinal surgery. He explained,
however, that surgery could produce less than complete relief
MONey v. TyRReLL FLOWeRS 	605
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606 	275 NeBRASKA RePORTS
and that spinal fusion was “not so great for primary neck
pain.” Her surgery was postponed while Money attempted to
quit smoking.
Sometime later in 2001, Money and her husband moved from
Lincoln to Table Rock to live in a friend’s house while the friend
was absent. For the use of the house, they were obligated to
take care of the property and pay the taxes and utilities. Table
Rock is about 75 miles southeast of Lincoln. Money was living
in Table Rock in April 2002, when she underwent surgery for a
cervical diskectomy and fusion at the C5-6 level.
After the surgery, Money initially improved, but her head-
aches and her neck and shoulder pain returned. After more test-
ing, the neurosurgeon concluded that she did not need further
surgery and referred her to a pain clinic. The record shows
she had trigger-point injections and epidural steroid injections,
which provided some relief.
When Money reached her maximum medical improvement in
January 2003, dr. david S. diamant evaluated her permanent
functional impairment. Because Money continued to have sig-
nificant complaints of pain and functional impairment despite
conservative treatments and surgical intervention, diamant con-
cluded she had a 28-percent whole-body impairment rating.
A physical therapist determined Money could perform work
with a light-medium physical demand classification. But he
concluded that the test was invalid because he believed that
Money’s efforts had failed several validity factors. Money,
however, testified that she was unable to complete the physical
tests in 1 day because of pain. After reviewing these test results,
diamant concluded that Money could at least work at the light-
duty physical demand level.
In June 2003, a vocational rehabilitation counselor, Patricia
g. Conway, prepared a loss of earning capacity analysis.
Conway concluded that Money could not perform her preinjury
jobs of nursing assistant or plant-care worker. She concluded,
however, that Money qualified for unskilled and low-level
skilled work activity and could return to full-time employ-
ment earning wages between $6.50 and $8.50 per hour. She
determined that Money had a 25-percent loss of earning capac-
ity under the light-medium physical demand restriction and a

32-percent loss of earning capacity under the light physical
demand restriction.
Conway also prepared Money’s vocational rehabilitation
plan. For a time, Money lived in Missouri with a friend after
her husband was incarcerated and the owner of the rent-free
house died. But she returned to the area and lived with another
friend to participate in her rehabilitation plan. The plan con-
sisted solely of job placement activities within 15 to 40 miles
of Money’s residence. The plan’s goal was employment paying
$7.50 to $8.50 per hour. The plan began on August 21, 2003,
and ended on November 17.
Conway provided Money with a resume, cover letters, and
job leads. Conway stated in a report that the geographic area
had a reasonable offering of low-skilled to semiskilled posi-
tions that fit Money’s physical restrictions. Money’s job search
got off to a slow start after she strained her neck while trying to
avoid a vehicular accident. Afterward, she reported to Conway
that it caused her considerable pain to drive any distance.
But by October 2003, Conway reported that Money had been
diligent and aggressive about participating in her job search. In
2004, Money returned to Table Rock to live with her husband
in a house his parents purchased for them; his parents also
helped with utilities.
Money continued to have pain. yet, another physician did
not find any abnormalities in her neck that surgical intervention
could help. He concluded that Money’s residual pain originated
in her soft tissues: muscles, tendons, and ligaments. In July
2004, a sewing factory hired Money to sew lawnmower bags,
but it soon terminated her employment for absences related to
her neck pain.
In March 2005, after reevaluating her, diamant wrote that it
was difficult to say whether Money could do light-duty work.
Money still complained of constant low-level, and at times
severe, pain and headaches. She had also reported intolerance
to sitting more than 90 minutes. yet, diamant believed she
could at least work in a sedentary-light physical demand capac-
ity if she were to pursue such employment. The same month,
her regular physician reported treating Money every 2 to 3
months during the preceding year for myofascial syndrome, or
MONey v. TyRReLL FLOWeRS 	607
Cite as 275 Neb. 602

608 	275 NeBRASKA RePORTS
pain originating in the muscles. He stated that Money would
likely need to rely on trigger-point injections in the future.
At trial in April 2005, Money testified that since her maxi-
mum medical improvement date, she had continued to have
muscle spasms in her neck and shoulders, causing her pain and
headaches. She stated that doing simple chores around the house
could cause her pain but that if her activities were very limited,
she might have only 4 to 5 bad days in a 2-month period. At
times, she experiences blurred vision, nausea, trouble walking,
and elevated blood pressure.
2. triAl J udge ’ s findings in first order
In its order, the trial judge stated that it was Tyrrell’s position
Money should be required to move back to Lincoln because she
would have greater job opportunities. The judge found, how-
ever, that Money had not moved to Table Rock in bad faith or
to reduce her employment opportunities. He concluded that her
move for low-cost housing was, and continued to be, motivated
by economic necessity. The judge further found that requiring
Money to drive to Lincoln for a job that paid $6 to $8 per hour
was not economically feasible. Accordingly, he concluded that
the relevant labor market was in and around Table Rock.
Regarding Money’s impairment, the trial judge found that the
evidence showed Money had made a reasonable and good faith
effort to find employment but had failed. He concluded that this
evidence rebutted Conway’s opinion regarding Money’s loss of
earning capacity. He further concluded that Money was “totally
disabled and entitled to permanent total loss of earning power”
because employers would not hire her.
3. revieW pAnel reverses And remAnds for
considerAtion of B oth lABor mArkets
Tyrrell appealed. The three-judge review panel agreed with
Tyrrell that the trial judge erred in limiting Money’s labor market
to Table Rock even if she moved there in good faith. It reasoned
that limiting the labor market to a claimant’s new community
would open the door to unscrupulous behavior. It remanded with
instructions for the trial judge to reassess Money’s permanent
loss of earning power. It stated the trial judge should consider

any evidence regarding plaintiff’s labor market both where she
was injured and the locale to which she relocated afterward.
On remand, the trial judge stated that its “reassessment of
[Money’s] loss of earning power includes the labor market in
and around Table Rock, Nebraska, and the labor market at the
time of her injury.” He again found Money totally disabled
under the odd-lot doctrine in both labor markets. He found that
Money had a formal education through the eighth grade and had
lost factory jobs because she was not “quick enough.” He noted
that she had lost a waitress job because she could not remem-
ber lists or operate a cash register without mistakes. He further
noted that she could not keep a checking account because the
math was too difficult for her. The judge explicitly stated that
because of her significant physical impairments, coupled with
her intellectual deficiencies, she would be hired only by very
sympathetic employers. Tyrrell again appealed.
4. revieW pAnel A ffirms in tyrrell ’ s second A ppeAl
In Tyrrell’s second appeal, the review panel rejected Tyrrell’s
argument that the record lacked evidence of Money’s loss of
earning capacity in the Lincoln labor market. It focused on
Money’s testimony about her prior employment in Lincoln and
her inability to perform those jobs after her injury. It further
concluded the trial judge was not clearly wrong in determin-
ing Money had physical and cognitive impairments that pre-
vented her from returning to gainful employment except with a
sympathetic employer.
III. ASSIgNMeNTS OF eRROR
Tyrrell assigns 14 errors, which are restated and condensed.
Tyrrell assigns that the trial judge erred in finding that Money
is entitled to permanent and total loss of earning power as an
odd-lot worker who would only be hired by very sympathetic
employers. It assigns that the review panel erred in affirming
this finding. It also assigns that the trial judge erred in failing
to require her to undergo additional vocational rehabilitation
before finding her to be permanently and totally disabled.
Regarding the relevant labor market, Tyrrell assigns that the
trial judge erred in (1) failing to include Lincoln in the relevant
MONey v. TyRReLL FLOWeRS 	609
Cite as 275 Neb. 602

610 	275 NeBRASKA RePORTS
labor market when assessing Money’s loss of earning power, (2)
concluding that Money had proved her loss of earning power
when she did not present evidence of the Lincoln labor market
and the record lacked such evidence, (3) ignoring the law of the
case by finding that Money was an odd-lot worker in its second
order when it did not make this explicit finding in its first order,
(4) finding that Money was an odd-lot worker in its second
order when this finding was inconsistent with other findings
in the first order, and (5) failing to provide a reasoned deci-
sion under Workers’ Comp. Ct. R. of Proc. 11 (2006). Finally,
Tyrrell assigns that the review panel erred in ignoring the trial
judge’s errors in its second order.
IV. STANdARd OF ReVIeW
[1] Under Neb. Rev. Stat. § 48-185 (Reissue 2004), we may
modify, reverse, or set aside a Workers’ Compensation Court
decision only when (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, judg-
ment, or award; or (4) the findings of fact by the compensation
court do not support the order or award.1
[2,3] On appellate review, the factual findings made by the
trial judge of the Workers’ Compensation Court have the effect
of a jury verdict and will not be disturbed unless clearly wrong.2
In workers’ compensation cases, we are obligated to make our
own determinations regarding questions of law.3
V. ANALySIS
1. correct lABor mArket
Tyrrell contends that the review panel erred in affirming the
trial judge’s finding that Money was an odd-lot worker in both
the Lincoln and the Table Rock labor markets. It argues that
Money failed to prove loss of earning power, also referred to
1 Knapp v. Village of Beaver City, 273 Neb. 156, 728 N.W.2d 96 (2007).
2 See Olivotto v. DeMarco Bros. Co., 273 Neb. 672, 732 N.W.2d 354
(2007).
3 See Davis v. Crete Carrier Corp., 274 Neb. 362, 740 N.W.2d 598 (2007).

as earning capacity,4 because she failed to present any evidence
of her ability to procure employment in the Lincoln labor mar-
ket. What a court may consider in assessing disability involves
statutory construction and thus is a question of law.5
[4,5] A trial judge should base the compensation an employer
pays on the worker’s loss of earning power.6 One of the fac-
tors used to assess earning power is the worker’s general abil-
ity to procure employment.7 In our recent decision in Giboo v.
Certified Transmission Rebuilders,8 we stated that this factor
depends partly upon the number and type of jobs available in a
given market. So the factor could change if the worker moves
from a metropolitan labor market to a rural community with
fewer available jobs.9 Also, we concluded that a labor mar-
ket encompasses employment opportunities within a reasonable
geographic radius around a “hub” community. Thus, in Giboo,
we concluded that the first step in identifying the relevant
labor market for assessing a worker’s loss of earning power is
to determine whether the hub 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.10
Like Tyrrell, the employer in Giboo argued that the labor mar-
ket must include both the community where the injury occurred
and the community to which the claimant moved. It argued that
unless the labor market includes both communities, claimants
could manipulate their earning power loss by moving to an
area with fewer available jobs. We rejected that argument. We
4 See, Giboo v. Certified Transmission Rebuilders, ante p. 369, 746 N.W.2d
362 (2008); Olivotto, supra note 2.
5 Harmon v. Irby Constr. Co., 258 Neb. 420, 604 N.W.2d 813 (1999).
6 See, Neb. Rev. Stat. § 48-121 (Reissue 2004); Davis v. Goodyear Tire &
Rubber Co., 269 Neb. 683, 696 N.W.2d 142 (2005).
7 See Davis, supra note 6.
8 Giboo, supra note 4.
9 See id.
10 See id., citing Kelly Services v. Industrial Comm’n, 210 Ariz. 16, 106 P.3d
1031 (Ariz. App. 2005), and Davaz v. Priest River Glass Co., 125 Idaho
333, 870 P.2d 1292 (1994).
MONey v. TyRReLL FLOWeRS 	611
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612 	275 NeBRASKA RePORTS
reasoned that requiring claimants to show that they had moved
for legitimate reasons would screen out such claimants.
[6] We also recognized in Giboo that some courts addition-
ally require claimants to show that they relocated because of
economic necessity. But we declined to impose this burden. We
believed it could potentially force claimants to choose between
their statutory right to receive compensation and a legitimate
desire to move for reasons that were not strictly economic. Thus,
we held: If a claimant relocates to a new community in good
faith, the new community will serve as the hub community from
which to assess the claimant’s loss of earning power.11
Our holding in Giboo conflicts with the review panel’s deter-
mination that a court must assess loss of earning power based
on both labor markets. We conclude that Money did not have
to show her loss of earning power in both the Lincoln and the
Table Rock communities.
Tyrrell, however, contends that when the review panel issued
its decision in Money’s first appeal, neither this court nor
the Court of Appeals, in a relocation case, had addressed the
appropriate labor market. Because Money did not appeal that
decision, Tyrrell argues the review panel’s first decision—that a
trial judge must consider both labor markets—became the law
of the case. It further argues that in the subsequent proceedings,
neither the trial judge nor the review panel correctly assessed
Money’s loss of earning power based on both labor markets. We
do not reach that issue because we conclude that the law-of-the-
case doctrine does not apply in this circumstance.
2. lAW- of - the -cAse doctrine
[7] Under the law-of-the-case doctrine, an appellate court’s
holdings on questions presented to it in reviewing the trial
court’s proceedings become the law of the case; those holdings
conclusively settle, for that litigation, all matters ruled upon,
either expressly or by necessary implication.12
[8] Unlike the doctrines of res judicata and collateral estop-
pel, which involve successive suits, the law-of-the-case doctrine
11 See Giboo, supra note 4.
12 See Thomas v. State, 268 Neb. 594, 685 N.W.2d 66 (2004).

involves successive stages of one continuing lawsuit.13 The
doctrine promotes judicial efficiency and protects parties’ set-
tled expectations by preventing parties from relitigating settled
issues within a single action.14 We have stated that “‘[a]n issue
which has been litigated and decided in one stage of a case
should not be relitigated in a later stage.’”15 At the appellate
level, however, the law-of-the-case doctrine “‘is not applied
with the same rigor as res judicata or collateral estoppel.’”16
[9] The doctrine applies with greater force when an appel-
late court remands a case to an inferior tribunal. In such a case,
“‘[t]he lower court is “without power” to take action inconsis-
tent with the judgment of the appellate court.’”17 But on appeal,
the law-of-the-case doctrine is a rule of practice that operates to
direct an appellate court’s discretion, not to limit its power.18
[10] generally, absent extraordinary circumstances, a court
should be reluctant to revisit its own prior decision or that of
another court in a single case.19 So, in successive appeals of
the same action, we have usually refused to reconsider substan-
tially similar, if not identical, issues that we decided in a former
appeal.20 We have also declined to reconsider issues decided in a
13 See In re Application of City of Lincoln, 243 Neb. 458, 500 N.W.2d 183
(1993).
14 See, e.g., Maxfield v. Cintas Corp., No. 2, 487 F.3d 1132 (8th Cir. 2007).
15 In re Application of City of Lincoln, supra note 13, 243 Neb. at 467, 500
N.W.2d at 190, quoting Milton d. green, Basic Civil Procedure (2d ed.
1979). See, also, United States v. U. S. Smelting Co., 339 U.S. 186, 70 S.
Ct. 537, 94 L. ed. 750 (1950), citing Messenger v. Anderson, 225 U.S. 436,
32 S. Ct. 739, 56 L. ed. 1152 (1912) (Holmes, J.).
16 In re Application of City of Lincoln, supra note 13, 243 Neb. at 468, 500
N.W.2d at 190, quoting green, supra note 15.
17 State v. White, 257 Neb. 943, 947, 601 N.W.2d 731, 734 (1999), quoting
People v. Russell, 149 Mich. App. 110, 385 N.W.2d 613 (1985).
18 See, Arizona v. California, 460 U.S. 605, 103 S. Ct. 1382, 75 L. ed. 2d 318
(1983); Messenger, supra note 15.
19 See Christianson v. Colt Industries Operating Corp., 486 U.S. 800, 108 S.
Ct. 2166, 100 L. ed. 2d 811 (1988).
20 See, e.g., Talle v. Nebraska Dept. of Soc. Servs., 253 Neb. 823, 572 N.W.2d
790 (1998).
MONey v. TyRReLL FLOWeRS 	613
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614 	275 NeBRASKA RePORTS
former appeal to the Court of Appeals in the same action.21 We
recognize that the review panel of the Workers’ Compensation
Court sits as an appellate court when reviewing a trial judge’s
award.22 But we conclude that this case presents an extraordinary
circumstance—our intervening decision in Giboo.
We have recognized two extraordinary circumstances when
the doctrine will not apply. The doctrine does not apply “‘if
considerations of substantial justice suggest a reexamination of
the issue is warranted.’”23 Also, the doctrine does not apply in
subsequent proceedings when the petitioner presents materially
and substantially different facts.24 We have not previously recog-
nized a third extraordinary circumstance. Other courts, however,
have held that the doctrine does not apply to an appellate court
in a second appeal of the same action when “controlling author-
ity has [issued] a contrary decision of the law applicable to such
issues” from the time the first appellate decision was issued.25
We agree that the most obvious justification for departing from
the doctrine is an intervening change in the law.26
[11] Accordingly, we now hold that the law-of-the-case doc-
trine does not apply in a later appeal of the same action if a
higher court has since issued a contrary decision. The doctrine
yields to this court’s duty to oversee the development of con-
sistent case law. This case presents such a circumstance. We
conclude that our holding in Giboo is the controlling authority
to determine the relevant labor market for assessing Money’s
21 See, e.g., Houston v. Metrovision, Inc., 267 Neb. 730, 677 N.W.2d 139
(2004).
22 Nunn v. Texaco Trading & Transp., 3 Neb. App. 101, 523 N.W.2d 705
(1994), citing Neb. Rev. Stat. § 48-179 (Reissue 1993).
23 In re Application of City of Lincoln, supra note 13, 243 Neb. at 468, 500
N.W.2d at 190, quoting green, supra note 15.
24 See Latenser v. Intercessors of the Lamb, Inc., 250 Neb. 789, 553 N.W.2d
458 (1996). See, also, Schuelke v. Wilson, 255 Neb. 726, 587 N.W.2d 369
(1998); Bezdek v. Patrick, 170 Neb. 522, 103 N.W.2d 318 (1960).
25 White v. Murtha, 377 F.2d 428, 432 (5th Cir. 1967). Accord 18B Charles
Alan Wright et al., Federal Practice and Procedure § 4478 (2d ed. 2002).
26 See 18B Wright et al., supra note 25.

loss of earning power. Thus, we disapprove the review panel’s
first decision.
Our disapproval of the first decision, however, does not
affect the final judgment. Following remand, the trial judge
found that Money was totally disabled in both the Lincoln and
the Table Rock labor markets. This finding, however, resulted
in the same award of benefits that Money would have received
if the review panel had correctly affirmed the trial judge’s first
order. The rules set forth in Giboo are the rules that the trial
judge applied in the first proceeding. He correctly determined
that the area around Table Rock was the relevant labor market
and that Lincoln should not be included in the labor market to
assess Money’s loss of earning power.
3. A pplicAtion of G iboo supports triAl J udge ’ s
conclusion thAt A reA A round tABle rock
is the relevAnt lABor mArket
(a) Table Rock Is the Proper Hub Community
Under Giboo, the review panel incorrectly decided the rele-
vant labor market. Thus, it did not address the trial judge’s fac-
tual finding that Money had moved to Table Rock in good faith.
Nonetheless, the record supports the trial judge’s finding that
Money’s move for low-cost housing was, and continued to be,
motivated by economic necessity.
After her injury, Money and her husband moved to Table
Rock to live rent free in a friend’s house. She also testified that
her husband had not worked since sometime in 2004 because
of neck surgery. Finally, they currently live in Table Rock in
a house purchased by her husband’s parents. We conclude that
the trial judge was not clearly wrong in finding that Money had
a good faith, economic motive for her move to Table Rock.
Accordingly, Table Rock served as Money’s hub community.
(b) Trial Judge Properly excluded Lincoln as an Additional
Area to Include in the Relevant Labor Market
[12-14] In Giboo, we also held that after the trial judge deter-
mines the claimant’s hub community, the trial judge may also
consider whether surrounding communities are part of the rele-
vant labor market. And whether a claimant should reasonably
MONey v. TyRReLL FLOWeRS 	615
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616 	275 NeBRASKA RePORTS
seek work in an area outside the hub community is a deter-
mination based on the totality of circumstances. We set out a
nonexclusive list of factors that a trial judge should take into
consideration: (1) availability of transportation, (2) duration of
the commute, (3) length of workday the claimant is capable of
working, (4) ability of the person to make the commute based
on his or her physical condition, (5) economic feasibility of a
person in the claimant’s position working in that location, and
(6) whether others who live in the claimant’s hub community
regularly seek employment in the prospective area.27
[15,16] We further stated that court-appointed vocational
rehabilitation experts should apply the same factors to guide
them in selecting the relevant geographic areas. The opinions
of a court-appointed vocational rehabilitation expert regard-
ing vocational rehabilitation and loss of earning power have a
rebuttable presumption of validity.28 So, if an employer believes
a vocational rehabilitation expert has incorrectly selected the
relevant geographic areas, the employer has the burden to rebut
the expert’s opinion. The employer could then show there are
employment opportunities reasonably available to the claimant
in the prospective area.29
In a report to Tyrrell, Conway stated that a reasonable offer-
ing of jobs existed within a 15- to 40-mile range of Money’s
residence. None of Conway’s job leads included Lincoln.
Tyrrell did not contest Conway’s rehabilitation plan or request
that Conway include job leads for Lincoln. And the trial judge
specifically rejected Lincoln as an area where Money should
reasonably seek employment. The trial judge found that Money
could not afford to commute 75 miles to Lincoln for a job
that would pay $8 per hour when it considered the costs of
fuel, insurance, and maintenance for a vehicle. The trial judge
could have considered other factors—notably, whether Money
27 See Giboo, supra note 4.
28 Neb. Rev. Stat. § 48-162.01 (Supp. 1999); Giboo, supra note 4.
29 Giboo, supra note 4.

physically could commute 150 miles daily.30 On appeal, how-
ever, Tyrrell does not challenge the trial judge’s cost analysis
or argue that it was reasonable for Money to seek employment
in Lincoln. Its position is that commuting costs are irrelevant
because the trial judge should have, as a matter of law, included
Lincoln in the relevant labor market. We have rejected this
argument. Tyrrell has not challenged Conway’s geographic area
or the trial judge’s factual findings. Thus, we conclude that the
trial judge was not clearly wrong in finding that it was unrea-
sonable for Money to seek employment in Lincoln.
4. triAl J udge correctly concluded thAt money WAs
entitled to permAnent totAl disABility
As An odd -lot Worker
[17] Under the odd-lot doctrine,
“[t]otal 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. The essence
of the test is the probable dependability with which claim-
ant 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.”31
In its first order, the trial judge found that Money had
made reasonable and good faith efforts to find employment as
part of her rehabilitation plan. Although Money had obtained
her diploma through the ged program, the judge found she
had cognitive limitations. He found that Money was perma-
nently and totally disabled “because of her impairments and
30 See, e.g., Hurley v. Stuart Fine Foods, 687 So. 2d 310 (Fla. App. 1997);
Fredenburg v. Control Data Corp., 311 N.W.2d 860 (Minn. 1981); Karpulk
v. W.C.A.B. (Worth and Co.), 708 A.2d 513 (Pa. Commw. 1998).
31 Heiliger v. Walters & Heiliger Electric, Inc., 236 Neb. 459, 470-71, 461
N.W.2d 565, 574 (1990) (quoting treatise passage currently found at 4
Arthur Larson & Lex K. Larson, Larson’s Workers’ Compensation Law
§ 83.02 (2007)). See, also, Schlup v. Auburn Needleworks, 239 Neb. 854,
479 N.W.2d 440 (1992).
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618 	275 NeBRASKA RePORTS
restrictions and because employers just aren’t going to hire her.”
In its second order following remand, the trial judge explicitly
found that Money “would only be hired by very sympathetic
employers” because of her significant physical impairments,
reading and math deficiencies, and intellectual limitations.
Tyrrell does not specifically argue that the trial judge erred
in finding Money permanently and totally disabled in the Table
Rock labor market. The thrust of its argument is that the rele-
vant labor market should include Lincoln, an argument we have
rejected. Tyrrell, however, does argue that the trial judge erred
in failing to require Money to undergo additional vocational
rehabilitation. It argues that Money should have continued to
search for employment before the trial judge concluded that
she was permanently and totally disabled. It contends the
trial judge should have required this because all the medical
experts believed Money had some capacity to return to work.
We interpret Tyrrell’s argument to be that Money is not totally
and permanently disabled because medical experts believed she
could perform some work functions. But we have previously
rejected such contentions when reviewing findings of disability
under the odd-lot doctrine.
[18,19] To recover benefits, a claimant must prove by a pre-
ponderance of the evidence that an accident or occupational
disease arose out of or occurred in the course of the employ-
ment.32 The claimant must also show by a preponderance of the
evidence that the accident or occupational disease proximately
caused an injury which resulted in compensable disability.33
Finally, an injured worker must prove by competent medical
testimony a causal connection between the alleged injury, the
employment, and the disability.34
[20-22] In assessing a claimant’s disability, physical restric-
tions and impairment ratings are important. yet, once the claim-
ant establishes the cause of disability, the trial judge is not
limited to this evidence. The trial judge may also rely on
32 See Olivotto, supra note 2. See, also, Neb. Rev. Stat. § 48-151(2) (Supp.
1999).
33 See id.
34 See Owen v. American Hydraulics, 254 Neb. 685, 578 N.W.2d 57 (1998).

the claimant’s testimony to determine the extent of the dis-
ability.35 disability, in contrast to impairment, is an economic
inquiry. It can be determined only within the context of the
personal, social, or occupational demands or statutory or regula-
tory requirements that the individual is unable to meet because
of the impairment.36 And total disability does not mean a state
of absolute helplessness. 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.37
[23-25] Whether a plaintiff is totally and permanently disabled
is a question of fact.38 When testing the trial judge’s findings of
fact, we consider the evidence in the light most favorable to the
successful party. And we give the successful party the benefit
of every inference reasonably deducible from the evidence.39 As
the trier of fact, the trial judge determines the credibility of the
witnesses and the weight to give their testimony.40
The evidence shows that Money was 37 years old at the time
of the accident. She completed the eighth grade and had limited
cognitive abilities. In 1990, she received her diploma through
the ged program and her nursing assistant certificate. Before
her job with Tyrrell Flowers, her work history included experi-
ence as a nursing assistant, security guard, janitor, waitress, and
factory worker. As noted, Conway concluded that she could no
longer perform work functions related to plant care or nursing
assistance. Money testified that she had not received any spe-
cialized education for her previous jobs and that she had lost
some jobs because of her slowness or mistakes.
35 See, Frauendorfer v. Lindsay Mfg. Co., 263 Neb. 237, 639 N.W.2d 125
(2002); Luehring v. Tibbs Constr. Co., 235 Neb. 883, 457 N.W.2d 815
(1990).
36 See Frauendorfer, supra note 35.
37 See id.
38 See, id.; Schlup, supra note 31.
39 See Olivotto, supra note 2.
40 See Vega v. Iowa Beef Processors, 270 Neb. 255, 699 N.W.2d 407 (2005).
MONey v. TyRReLL FLOWeRS 	619
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620 	275 NeBRASKA RePORTS
As the trial judge noted, Money was fired from a waitress
job because she could not remember lists and made mistakes
on the cash register. She could not type and had not operated a
cash register at Tyrrell Flowers or at any other job besides her
waitress job. She had also lost factory jobs because she was not
quick enough. In August 2004, a psychologist evaluated Money’s
intelligence using a “WAIS-III” intelligence test. Money scored
89 on her full-scale intelligence test, which was deemed valid.
The psychologist assessed Money’s overall functioning at a low-
average to average intelligence level but concluded she could
follow simple instructions under ordinary supervision.
Notably, Conway did not recommend retraining Money to
perform sedentary or light-duty work as part of the vocational
rehabilitation plan. And Tyrrell did not request job training.
The rehabilitation plan was for job placement activities. From
September to November 2003, Money reported making 68
employer contacts and submitting 27 resumes or applications.
She testified that she applied for about 100 jobs between
August 2003 and July 2004. during her job search, a prospec-
tive employer turned her down for a telephone sales position
because of her poor reading skills. She also applied for seden-
tary positions as a dietary aide and grain elevator clerk, but she
was not hired.
Money was able to convince only one employer to hire her
for a low-skilled job at a sewing factory. She worked there full
time for only 4 days before she had to leave to receive treatment
for muscle spasms and severe headaches. After the first week,
she attempted to continue working part time but lasted less than
2 weeks because of absences related to her neck problems.
Similarly, Money testified extensively about her limited abil-
ity to perform daily life activities and simple household tasks
without pain. She also stated that she changed her activities at
home frequently to avoid pain but that all her activities were
at a physically low level. The evidence further shows that
Money did not have transferable skills to obtain work within
her physical abilities. The trial judge could properly rely on her
testimony in determining that her physical abilities were limited
after her injury. His findings of fact were not clearly wrong. As
we have previously recognized:

“A considerable number of the odd-lot cases involve
claimants whose adaptability to the new situation created
by their physical injury was constricted by lack of mental
capacity or education. This is a sensible result, since it is
a matter of common observation that a man whose sole
stock in trade has been the capacity to perform physical
movements, and whose ability to make those movements
has been impaired by injury, is under a severe disadvantage
in acquiring a dependable new means of livelihood.”41
In factually similar cases, we have affirmed the finding of total
disability under the odd-lot doctrine.42
We conclude that Money’s evidence of her significant physi-
cal impairments after the injury and her limited cognitive abili-
ties was sufficient to support the trial judge’s finding of perma-
nent and total disability under the odd-lot doctrine.
VI. CONCLUSION
We conclude that the workers’ compensation trial judge cor-
rectly determined that the relevant labor market for assessing
Money’s loss of earning power was the area in and around
Table Rock. It also correctly determined that Lincoln was not
a surrounding community that should be included in that labor
market. Although we had not yet issued our decision in Giboo,43
the trial judge correctly applied the rules we set forth in Giboo
to make these determinations. We further conclude that the
three-judge review panel, in Money’s first appeal, incorrectly
determined that a claimant’s loss of earning power must be
based on both the community where the claimant was injured
and the community to which she moved in good faith. Although
Money did not appeal from the review panel’s first decision, we
41 Mata v. Western Valley Packing, 236 Neb. 584, 589, 462 N.W.2d 869, 873
(1990) (quoting treatise passage currently found at 4 Larson & Larson,
supra note 31, § 83.04).
42 See, Frauendorfer, supra note 35; Schlup, supra note 31. See, also, Luehring,
supra note 35; Heironymus v. Jacobsen Transfer, 215 Neb. 209, 337 N.W.2d
769 (1983).
43 Giboo, supra note 4.
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622 	275 NeBRASKA RePORTS
conclude that this decision is not the law of the case because it
is contrary to our subsequent decision in Giboo.
We therefore disapprove the review panel’s first decision.
This disapproval, however, does not affect Money’s award of
benefits. After the trial judge again determined in the subsequent
proceeding that Money was entitled to benefits for total disabil-
ity, the review panel affirmed the award on different grounds.
Because we conclude that the trial judge was not clearly wrong
in finding that Money was totally and permanently disabled in
the Table Rock labor market under the odd-lot doctrine of dis-
ability, we affirm.
A ffirmed .