Giboo v. Certified Transmission Rebuilders

doneLLe giboo , appeLLant , v . certified
tranSmiSSion rebuiLderS, appeLLee .
746 N.W.2d 362
Filed april 4, 2008. 	No. s-07-139.
1. Workers’ Compensation: Appeal and Error. In determining whether to affirm,
modify, reverse, or set aside the judgment of the three-judge panel of the
Nebraska Workers’ Compensation Court, an appellate court reviews the findings
of the single judge who conducted the original hearing.
2. ____: ____. Determinations by a trial judge of the Workers’ Compensation Court
will not be disturbed on appeal unless they are contrary to law or depend on find-
ings of fact which are clearly wrong in light of the evidence.
3. ____: ____. regarding questions of law in workers’ compensation cases, an
appellate court is obligated to make its own determination.
4. Workers’ Compensation. Under Nebraska law, the amount an employer must
pay a disabled employee in workers’ compensation is based on that employee’s
earning capacity.
5. ____. the factors used to assess a disabled employee’s earning capacity include
(1) eligibility to procure employment generally, (2) ability to hold a job obtained,
(3) capacity to perform the tasks of the work, and (4) ability of the worker to earn
wages in the employment in which he or she is engaged or for which he or she
is fit.
6. ____. the first step in identifying a labor market is to identify the hub from
which the spokes of the reasonable geographic area radiate, whether it is from
the place the injury occurred, the place the claimant resided at the time the
injury occurred, or the place the claimant resides at the time of the workers’
compensation hearing.
7. ____. When an employee injured in one community relocates to a new commu-
nity, the new community will serve as the hub community from which to assess
the claimant’s earning capacity, provided that the change of community was done
in good faith and not for improper motives.
8. Workers’ Compensation: Proof. the claimant carries the burden to establish
that the move was made in good faith and not for the purpose of exaggerating the
extent of his or her difficulty finding suitable employment.
9. ____: ____. If the claimant cannot show a legitimate motive behind his or her
postinjury relocation, the community where the claimant resided at the time the
injury occurred will serve as the hub community.
10. Workers’ Compensation. once the hub community has been identified, a “labor
market” includes not only that particular community, but also any communities
within a reasonable geographic area around it.
11. ____. Communities surrounding the claimant’s hub community should be consid-
ered part of the claimant’s labor market, but only to the extent that it would be
reasonable for the claimant to seek work in that location.
12. ____. Whether it is reasonable for a claimant to seek work in a particular com-
munity is determined by looking to the totality of the circumstances, with regard
gIboo v. CertIFIeD traNsMIssIoN rebUILDers 	369
Cite as 275 Neb. 369
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:54 AM CST

370 	275 Nebraska reports
for such factors as (1) availability of transportation, (2) duration of the commute,
(3) length of the workday the claimant is capable of working, (4) ability of the
person to make the commute based on his or her physical condition, and (5) eco-
nomic feasibility of a person in the claimant’s position working in that location.
regard might also be given to the more generalized inquiry of whether others
who live in the claimant’s hub community regularly seek employment in the
prospective area.
13. Workers’ Compensation: Expert Witnesses. Court-appointed vocational reha-
bilitation experts will help courts identify vocational rehabilitation plans and
apply the statutory factors used to assess disabled employees’ earning capacities.
14. Expert Witnesses: Presumptions: Proof. the opinion of the court-appointed
expert is imbued with a rebuttable presumption of validity, and a party who dis-
agrees with that opinion has the burden to show that it is inaccurate.
15. ____: ____: ____. the rebuttable presumption in favor of the court-appointed
expert’s opinion can be rebutted by a showing that his or her assessment was
predicated on principles that are contrary to law.
16. ____: ____: ____. a party can show that the opinion of the court-appointed expert
is inaccurate by offering proof that the nonexistence of a fact presumed by the
court-appointed expert is more probable than is its existence.
appeal from the Workers’ Compensation Court. reversed and
remanded with directions.
James e. Harris and britany s. shotkoski, of Harris kuhn
Law Firm, L.L.p., for appellant.
timothy e. Clarke and amanda a. Dutton, of baylor, evnen,
Curtiss, grimit & Witt, L.L.p., for appellee.
heavican , 	c.J., 	wright , 	connoLLy , 	gerrard , 	S tephan ,
mccormack , and miLLer -L erman , JJ.
heavican , c.J.
I. INtroDUCtIoN
Donelle giboo filed this action against Certified transmission
rebuilders 	(Ctr) 	of 	omaha, 	Nebraska, 	seeking 	medical
expenses and future compensation for injuries she suffered
when she slipped on a set of stairs while working for Ctr.
at trial, the Nebraska Workers’ Compensation Court adopted
the assessment of the court-appointed vocational expert despite
conflicting testimony by giboo’s own expert. on appeal, a
divided panel of the Nebraska Workers’ Compensation Court
affirmed. giboo now appeals to this court. We reverse and
remand for reasons set forth below.

II. baCkgroUND
on July 25, 2002, giboo, a Ctr employee, slipped and fell
while descending a flight of stairs at Ctr’s omaha location.
giboo was 7 months pregnant at the time. the fall aggravated a
preexisting injury to giboo’s spine and ultimately required sev-
eral surgeries to repair. on september 9, giboo filed a petition
in the Nebraska Workers’ Compensation Court to obtain medical
expenses as well as future compensation to offset diminished
earning capacity. after a trial, the compensation court entered
an award on May 21, in which Ctr was ordered to pay medical
expenses giboo had incurred to that date. Moreover, based on the
finding that giboo was “temporarily totally disabled,” the court
ordered Ctr to pay giboo $267.62 per week in compensation.
on 	December 	7, 	2004, 	giboo’s 	physician, 	Dr. 	randall
Woodward, advised giboo that she could return to work, but
only if she observed several restrictions on her range of motion
and the amount of weight she could lift or carry. Moreover,
Woodward limited giboo to a 6-hour workday, though he
believed that she would eventually be able to work a full 8-hour
workday. Ctr accommodated these restrictions and continued
to employ giboo.
giboo and Ctr agreed that David Utley, a vocational reha-
bilitation expert, would serve as the vocational rehabilitation
counselor assigned to the case. In a report dated July 18,
2005, Utley determined that giboo had sustained a 25-percent
loss of access to jobs in the omaha and Council bluffs, Iowa
(omaha/Council bluffs), labor market. Utley concluded that for
someone of giboo’s training and experience, this resulted in a
30-percent reduction in earning capacity in the omaha/Council
bluffs labor market.
However, on september 28, 2005, Dr. James Devney, a col-
league of Woodward, determined that giboo should be per-
manently limited to no more than 6 hours of work per day.
additionally, Devney determined that giboo had long since
reached her “[m]aximum medical improvement” and that her
condition would not improve from that point forward. Ctr
terminated giboo’s employment shortly thereafter.
In response to the new 6-hour-workday limitation, Utley
issued an amended evaluation of giboo’s earning capacity
gIboo v. CertIFIeD traNsMIssIoN rebUILDers 	371
Cite as 275 Neb. 369

372 	275 Nebraska reports
on october 3, 2005. Notably, Utley did not modify his prior
conclusion that giboo’s disability reduced her access to jobs
in omaha/Council bluffs by 25 percent. Utley did, however,
increase his assessment of giboo’s loss of earning capacity
from 30 to 35 percent.
on august 23, 2005, Ctr filed a petition in the Nebraska
Workers’ Compensation Court to modify giboo’s prior award.
giboo and Ctr agreed on most points, but disagreed on the
extent of giboo’s lost earning capacity in light of her dis-
abilities. at this second trial, giboo presented evidence that
she had since moved from the omaha area to Dunlap, Iowa, a
small, rural community of approximately 600 residents some
50 miles east of omaha. giboo testified that she made the
move to live with the father of her child, since he owned a
home in Dunlap. giboo also presented testimony from paulette
Freeman, another vocational rehabilitation expert. Freeman
testified that in her opinion, Utley had underestimated giboo’s
loss of access to employment.
the court issued its order on February 10, 2006. In its order,
the trial court discounted Freeman’s testimony for reasons that
we develop more fully below. the court then concluded that
the statutory presumption in favor of Utley’s assessment, as the
assessment of the court-appointed vocational expert, had not
been overcome. therefore, the court adopted Utley’s assess-
ment and concluded that giboo suffered from a 35-percent loss
of earning capacity. accordingly, the court adjusted giboo’s
compensation to $93.67 per week for 1393⁄7 weeks.
giboo petitioned for review by a three-judge panel of the
Nebraska Workers’ Compensation Court on February 23, 2006.
on January 17, 2007, the three-judge panel affirmed the lower
court’s award by a vote of 2 to 1. giboo now appeals the panel’s
decision affirming the trial court’s award.
III. assIgNMeNts oF error
giboo assigns, restated, consolidated, and renumbered, that
the trial court erred (1) in determining the relevant labor mar-
ket from which to assess her earning capacity, (2) in uphold-
ing the statutory presumption in favor of Utley’s appraisal of
giboo’s earning capacity, and (3) in failing to issue a “reasoned

decision” as required by the procedural rules governing the
Nebraska Workers’ Compensation Court.
IV. staNDarD oF reVIeW
[1] 	In 	determining 	whether 	to 	affirm, 	modify, 	reverse,
or set aside the judgment of the three-judge panel of the
Nebraska Workers’ Compensation Court, an appellate court
reviews the findings of the single judge who conducted the
original hearing.1
[2,3] 	Determinations 	by 	a 	trial 	judge 	of 	the Workers’
Compensation Court will not be disturbed on appeal unless
they are contrary to law or depend on findings of fact which
are clearly wrong in light of the evidence.2 regarding questions
of law in workers’ compensation cases, an appellate court is
obligated to make its own determination.3
V. aNaLYsIs
1. reLevant L abor market
[4,5] the predominant issue on appeal in this case is whether
the trial court erred in selecting the relevant labor market from
which to assess giboo’s earning capacity. Under Nebraska
law, the amount an employer must pay a disabled employee
in workers’ compensation is based on that employee’s earn-
ing capacity.4 the factors used to assess a disabled employee’s
earning capacity include (1) eligibility to procure employment
generally, (2) ability to hold a job obtained, (3) capacity to
perform the tasks of the work, and (4) ability of the worker to
earn wages in the employment in which he or she is engaged or
for which he or she is fit.5
1 see Wilson v. Larkin & Sons, 249 Neb. 396, 543 N.W.2d 735 (1996).
2 see McBee v. Goodyear Tire & Rubber Co., 255 Neb. 903, 587 N.W.2d 687
(1999).
3 see Hobza v. Seedorff Masonry, Inc., 259 Neb. 671, 611 N.W.2d 828
(2000).
4 Neb. rev. stat. § 48-121 (reissue 2004); Davis v. Goodyear Tire & Rubber
Co., 269 Neb. 683, 696 N.W.2d 142 (2005).
5 see Davis, supra note 4.
gIboo v. CertIFIeD traNsMIssIoN rebUILDers 	373
Cite as 275 Neb. 369

374 	275 Nebraska reports
the factor assessing the ability to procure employment “in
general” depends in part on the number and type of jobs avail-
able in a given market. therefore, this factor might change
depending on the location in question. For example, a major
metropolitan area will have more jobs of a wider variety than
a rural community.
giboo lived and worked in the omaha area at the time
she was injured. However, after giving birth to her son in
september 2002, giboo began spending the majority of her
time in Dunlap, where her child and the child’s father reside.
giboo formally moved to Dunlap in september 2005. this case
requires that we confront the question of what market to use to
measure earning capacity when an employee, after suffering an
injury while living and working in one community, relocates to
a new community with fewer employment opportunities.
In its order, the trial court indicated this question had already
been resolved by this court’s prior opinion in Harmon v. Irby
Constr. Co.6 the trial court read Harmon as standing for the
proposition that “the labor market in which the claimant was
injured is the labor market in which the claimant’s loss of
earning capacity should be measured.” this reading stretches
Harmon too far.
In Harmon, an employee was injured while working for
a company in superior, Nebraska. the Nebraska Workers’
Compensation Court found that superior was the employ-
ee’s exclusive labor market from which to assess his earning
capacity. the employer appealed, claiming that the employee
should be required to move to a larger labor market with more
employment opportunities. this court disagreed and held that
an employee “cannot be required to move to find employment.”7
but the conclusion that an employee cannot be forced to relo-
cate in order to increase his or her earning capacity does not
resolve the issue of where to measure earning capacity when an
employee voluntarily relocates.
to resolve that question, it may be helpful to think of this
issue as encompassing two separate inquiries. the first inquiry
6 Harmon v. Irby Constr. Co., 258 Neb. 420, 604 N.W.2d 813 (1999).
7 Id. at 428, 604 N.W.2d at 820.

should ask which community—Dunlap, omaha/Council bluffs,
or both—should serve as the “hub” area from which to assess
giboo’s earning capacity. the second inquiry should address
the other geographic areas that may be considered along with
the hub community.
(a) “Hub” Community
[6] Courts and commentators uniformly agree that a “labor
market” does not refer to a single community, but encompasses
employment opportunities within a reasonable geographic area.8
It would seem, therefore, that the first step in identifying a
labor market is to identify “the hub from which the spokes of
a ‘reasonable geographic area’ radiate, whether it [is] from the
place the injury occurred, the place the claimant resided at the
time the injury occurred, or the place the claimant resides at the
time of [the workers’ compensation] hearing.”9
In addressing the concept of the hub community as it relates
to this case, we proceed in two parts. Drawing upon the par-
ties’ arguments, the first subpart surveys the approaches used by
courts in other jurisdictions. In the second subpart, we identify
the approach we think is preferable and apply it to the facts
before us.
(i) Survey of Approaches Used in Other Jurisdictions
Without using the “hub” terminology, Ctr essentially argues
that both omaha/Council bluffs and Dunlap should serve as
hub communities. Ctr’s position is that as a market with sub-
stantially fewer employment opportunities, using Dunlap as the
hub community will lead to an exaggerated decrease in giboo’s
earning capacity and thus a sharper increase in the amount of
compensation Ctr must pay. Instead, Ctr urges us to adopt a
rule under which the market where the injury occurred and any
new market to which the claimant relocates are both regarded
as hub communities. by keeping the injury market in the equa-
tion, Ctr believes that such a rule would reduce the incentive
8 see, e.g., Kelly Services v. Industrial Com’n, 210 ariz. 16, 106 p.3d 1031
(ariz. app. 2005).
9 Davaz v. Priest River Glass Co., Inc., 125 Idaho 333, 336, 870 p.2d 1292,
1295 (1994).
gIboo v. CertIFIeD traNsMIssIoN rebUILDers 	375
Cite as 275 Neb. 369

376 	275 Nebraska reports
for employees to “unilaterally manipulate” their earning capac-
ity by moving to “poor or nonexistent labor markets in order to
make themselves totally disabled, where they otherwise would
not have been.”10
Ctr’s proposition is based on the approach taken by the
Idaho supreme Court. In most situations, the Idaho supreme
Court regards “the market in which a claimant resides at the
time of the hearing as the axis from which the scope of a
‘reasonable geographic area’ is defined.”11 However, when an
employee voluntarily relocates to a community with fewer
employment opportunities, both the community where the
injury occurred and the community to which the employee
relocates are considered hub communities.12 Like Ctr, the
Idaho supreme Court reasoned that a claimant should not be
permitted to manipulate his or her disability status, and thus the
amount of compensation the employer must pay, simply “by
changing his place of residence.”13
giboo argues that Dunlap alone is the hub community from
which to base an assessment of her earning capacity. In support
of this proposition, giboo points out that there is no evidence
that her move to Dunlap was based on improper motives, such
as the desire to avoid work. Instead, giboo argues the record
supports the contention that her move was done for completely
legitimate purposes.
In making such arguments, giboo invokes a line of deci-
sions from other jurisdictions which hold that the community
to which a claimant relocates after an injury will serve as the
relevant labor community, provided that the move was made
for legitimate reasons.14 However, even those courts disagree on
what qualifies as a “legitimate” motive.
10 brief for appellee at 19.
11 Davaz, supra note 9, 125 Idaho at 338, 870 p.2d at 1297.
12 see Lyons v. Industrial Special Indem. Fund, 98 Idaho 403, 565 p.2d 1360
(1977), cited with approval, Davaz, supra note 9. Cf. Paramo v. Industrial
Com’n of Arizona, 186 ariz. 75, 918 p.2d 1093 (ariz. app. 1996).
13 Lyons, supra note 12, 98 Idaho at 407 n.3, 565 p.2d at 1364 n.3.
14 see, e.g., Reede v. State, Dept. of Transp., 620 N.W.2d 372 (s.D. 2000).

the First and Fourth Circuits have held that in most cases,
only “economic” motives provide a sufficient justification for
a claimant’s decision to relocate to a new community after
a vocational injury. In See v. Washington Metropolitan Area
Transit Authority,15 elwood see relocated to Franklin, West
Virginia, after he suffered a disability while living and working
in Washington, D.C. the employer argued that using Franklin
instead of Washington, D.C., as the labor market would mean
employers’ compensation 	obligations 	could 	be 	unilaterally
manipulated by “‘the claimant’s personal choice to relocate to
an area with fewer available jobs.’”16
In response, the Fourth Circuit held that “[t]he presence of a
legitimate purpose influencing a post-injury relocation is a sig-
nificant factor warranting consideration in the determination of
the relevant labor market.”17 regarding the definition of “legiti-
mate,” it is significant that the Fourth Circuit based its decision
on the fact that “[t]here [was] substantial evidence supporting
the economic reasons for see’s move to West Virginia and the
legitimacy of those reasons.”18 the court gave a clue as to its
definition of “economic” when it held that a “move predicated
on a legitimate intent to reduce an injured claimant’s cost of
living” would suffice.19
the First Circuit relied on See in Wood v. U.S. Dept. of
Labor,20 wherein Michael Wood relocated to shortsville, New
York, after being injured while working at a shipyard in bath,
Maine. Wood testified that his decision to move back to New
York was prompted in part by a need to provide care to his ail-
ing mother. the First Circuit acknowledged that “[c]are for an
aged parent is to be commended,” but nonetheless felt that the
15 See v. Washington Metropolitan Area Transit Authority, 36 F.3d 375 (4th Cir.
1994).
16 Id. at 382.
17 Id.
18 Id. at 383 (emphasis supplied).
19 Id. at 382.
20 Wood v. U.S. Dept. of Labor, 112 F.3d 592 (1st Cir. 1997).
gIboo v. CertIFIeD traNsMIssIoN rebUILDers 	377
Cite as 275 Neb. 369

378 	275 Nebraska reports
federal workers’ compensation laws demanded an “economic”
motive behind a claimant’s relocation.21
In contrast to the First and Fourth Circuits, a number of
state courts have indicated that a claimant’s new community
will serve as the relevant labor market so long as the claim-
ant moved there in good faith. For example, in Kurrell v.
National Con Rod, Inc.,22 an employee injured while work-
ing 	in 	Minneapolis, 	Minnesota, 	subsequently 	relocated 	to
Walnut grove, Minnesota, a small town some 150 miles away.
the claimant moved to Walnut grove to be with her family.
although the Minnesota supreme Court acknowledged that the
claimant’s “motivations in moving to Walnut grove may be
viewed as ‘merely personal,’” Walnut grove was nonetheless
the relevant labor market because the move there “was not part
of a plan to retire from the labor market.”23
In USAir, Inc. v. W.C.A.B. (Keene),24 a claimant injured while
working in pittsburgh, pennsylvania, relocated to Destrehan,
Louisiana, after his wife was offered an additional $27,000 per
year to take a job there. the employer argued that pittsburgh
should be the labor market for purposes of the earning capacity
assessment because the “choice to move was a personal one,
not prompted by any economic or other necessity.”25 the court
disagreed and held that Destrehan would serve as the relevant
community because “‘the claimant . . . resettled [there] under
circumstances which do not indicate a lack of good faith in the
move itself.’”26
similarly, in Reede v. State, Dept. of Transp.,27 a claimant
injured while working in the black Hills area in south Dakota
relocated to Forsyth, Montana, a location with fewer employ-
ment opportunities. the claimant explained that she moved to
21 Id. at 597.
22 Kurrell v. National Con Rod, Inc., 322 N.W.2d 199 (Minn. 1982).
23 Id. at 202.
24 USAir, Inc. v. W.C.A.B. (Keene), 706 a.2d 888 (pa. Commw. 1998).
25 Id. at 889.
26 Id. at 890.
27 Reede, supra note 14.

Montana out of “financial necessity” and because she “has a
good support network in that community.”28 the south Dakota
supreme Court held that a claimant’s new residence will serve
as the relevant labor market if the “claimant . . . demonstrates
that a change of community was done in good faith, and not
for improper motives.”29 the court ultimately upheld the use
of Forsyth as the labor market, based on the state department
of labor’s finding that the move to Forsyth was made for
legitimate reasons.30
Finally, we note that the Florida Court of appeals has sug-
gested that the area to which “a claimant relocates after the
injury” is the community from which to assess earning capac-
ity, provided “there is no evidence that claimant’s relocation fol-
lowing his injury was motivated by a desire to avoid work.”31
(ii) Identifying Hub Community in Present Case
Having surveyed the various approaches other jurisdictions
use to identify the hub community, we must now identify which
approach we believe is preferable. there is no doubt that the
Idaho supreme Court’s approach offers a good deal of protec-
tion to employers. that court’s approach would reduce the
incentive for claimants to distort the extent of their disability by
relocating to an area with fewer job opportunities. Moreover,
by factoring the original community into the earning capac-
ity average, this approach would mitigate the impact of any
attempt to manipulate earning capacity through relocation.
Nevertheless, we decline to adopt this approach because
of the potential for unjust results. as Ctr notes in its brief,
the distance between the hub communities—old and new—is
completely irrelevant under the Idaho supreme Court’s approach.
as such, if a claimant was injured while working in omaha
and then relocates to scottsbluff, Nebraska, his or her earning
capacity would be based on the availability of employment
28 Id. at 374.
29 Id. at 376.
30 Reede, supra note 14.
31 Genelus v. Boran, Craig, Schreck Const. Co., 438 so. 2d 964, 966 (Fla. app.
1983).
gIboo v. CertIFIeD traNsMIssIoN rebUILDers 	379
Cite as 275 Neb. 369

380 	275 Nebraska reports
opportunities in and around both cities. but we believe that
adjusting a claimant’s earning capacity based on employment
opportunities that are not realistically available to the claim-
ant would contravene the policy behind the Nebraska Workers’
Compensation act.
the primary purpose of that act is “restoration of the injured
employee to gainful employment.”32 to that end, the act pre-
scribes a number of steps that courts must take to accurately
assess an employee’s actual earning capacity. It would be odd,
therefore, for us to adopt a rule which openly allows courts to
distort the picture by factoring in employment opportunities
that are clearly not practical.
additionally, the Idaho supreme Court’s approach would
force claimants to choose between legitimate opportunities to
improve their personal or financial situations and their rights
to receive much-needed compensation. as the cases surveyed
above demonstrate, claimants may have any number of per-
fectly legitimate reasons for relocating to a new community
after suffering an injury in their old community. a claimant
may need to move to provide care for an aging or infirm fam-
ily member or to maintain a cohesive family unit. Moreover,
individuals with physical disabilities often find it necessary “to
move back to communities where family members can lend
support.”33 as the Minnesota supreme Court noted in Kurrell,
“[i]t would be a harsh and rigid rule that allowed an employee
to better her personal situation only at the expense of her statu-
tory right to rehabilitation benefits.”34
It seems, therefore, that the better rule is one which regards
the employee’s new community as the hub community provided
that the move was made for legitimate reasons. such a rule
would avoid the policy pitfalls identified above and, by scrutiniz-
ing the legitimacy of the reasons behind the move, would screen
out claimants whose moves are based on illegitimate purposes.
32 Neb. rev. stat. § 48-162.01 (Cum. supp. 2006).
33 Wood, supra note 20, 112 F.3d at 596.
34 Kurrell, supra note 22, 322 N.W.2d at 202.

However, in adopting this approach, we do not believe it is
necessary for the claimant to justify his or her relocation with a
purely economic motive. We note that the Fourth Circuit indi-
cated in See35 that a lower cost of living in the new community
would qualify as an economic motive. but given that smaller
communities—that is, communities with fewer employment
opportunities—will frequently have a lower cost of living than
larger communities, it is difficult to envision a situation in
which a claimant’s move to a small community could not be
justified on an economic basis. In this way, the federal circuit’s
approach appears to offer more in theory than in practice.
Moreover, 	insisting 	on 	an 	economic 	justification 	would
essentially punish those claimants who relocated for legitimate
reasons that may not be “economic” in the strictest sense. For
example, one can easily envision a single mother who, after
suffering a work-related physical disability, must relocate to a
community where family can assist with childcare. In such a
hypothetical, the more significant factor is not the prospect of
free childcare from family members—a potentially economic
justification—but, rather, the nature and quality of care that
family would provide relative to complete strangers.
[7-9] accordingly, we hold that when an employee injured in
one community relocates to a new community, the new commu-
nity will serve as the hub community from which to assess the
claimant’s earning capacity, provided that the “change of com-
munity was done in good faith, and not for improper motives.”36
Like the south Dakota supreme Court, we believe the claimant
carries the burden to establish that the move was made in good
faith and not for the purpose of exaggerating the extent of his or
her difficulty in finding suitable employment.37 If the claimant
cannot show a legitimate motive behind his or her postinjury
relocation, the community where the claimant resided at the
time the injury occurred will serve as the hub community.
35 See, supra note 15.
36 see Reede, supra note 14, 620 N.W.2d at 376.
37 see id.
gIboo v. CertIFIeD traNsMIssIoN rebUILDers 	381
Cite as 275 Neb. 369

382 	275 Nebraska reports
there is significant evidence in the record to support the
belief that giboo’s move was made in good faith and therefore
that Dunlap should be the hub community from which to base
an assessment of giboo’s earning capacity. giboo testified
at trial that her move to Dunlap was motivated solely by the
desire to live with her son who was born in september 2002,
shortly after giboo’s injury. although she maintained her per-
manent residence in plattsmouth, Nebraska, giboo testified
that she was in Dunlap “95 percent” of the time. giboo for-
mally established her residence in Dunlap in september 2005.
When asked why it took so long to officially change her
residence to Dunlap, giboo explained that parole limitations
prevented her from establishing a residence outside Nebraska
until september 2005.
these facts suggest that giboo’s move to Dunlap was made
in good faith and was not motivated by a desire to manipu-
late the extent of her disability. We acknowledge that the
trial court’s order lacks a conclusive finding in this regard.
Nevertheless, we note that the trial court never discredited
giboo’s testimony. Moreover, we note that Ctr appeared to
concede that giboo’s move was made in good faith when, in its
brief before this court, it stated: “Further, [Ctr] is not claim-
ing that there is evidence that support[s] a conclusion that the
move was made in a deliberate attempt to manipulate [giboo’s]
labor market.”38 this comment is tantamount to a concession
that giboo’s move was made for legitimate reasons in line
with the rule we adopt today. It is therefore unnecessary to
remand for the trial court to conduct findings on the motives
behind giboo’s move. accordingly, we conclude that Dunlap
alone should serve as the hub community from which to assess
giboo’s earning capacity.
(b) Impact of employment opportunities
around Hub Community
Having concluded that Dunlap is the hub community from
which to assess giboo’s earning capacity, we must now address
38 brief for appellee at 20.

what other communities around Dunlap should factor into the
calculation of giboo’s earning capacity.
[10] once the hub community has been identified, authori-
ties agree that a “labor market” includes not only that particu-
lar community, but also any communities within a reasonable
geographic area around it. this concept is made explicit in a
few state statutes39 and is also a concept familiar to workers’
compensation experts.40
at trial, Freeman, giboo’s vocational expert, testified that
Dunlap should be the primary community from which to con-
duct an assessment of giboo’s earning capacity. other areas—
including omaha/Council bluffs—may also factor into the
calculation so long as it would be practical for giboo to accept
employment there. Freeman’s testimony in this regard parallels
the conclusions reached by courts from other jurisdictions.
In Kelly Services v. Industrial Com’n,41 the arizona Court of
appeals addressed whether an employee who lived and worked
in Yucca, arizona, should be required to seek work in neighbor-
ing towns with greater employment opportunities. In particular,
the employer argued that the claimant should be required to
seek employment in either kingman, arizona, or Lake Havasu
City, arizona, towns 24 and 34 miles from Yucca, respectively.
the court declined to adopt a bright-line rule either excluding
or including those communities in the claimant’s labor mar-
ket. Instead, the court adopted a circumstantial reasonableness
test under which areas in the vicinity of one’s hub community
would also be taken into consideration so long as “a reason-
able person in the claimant’s situation would probably seek
employment there.”42 the court further noted that “[i]n making
such a determination, a totality of the circumstances approach,
39 Idaho Code ann. § 72-430 (2006), construed in Combs v. Kelly Logging,
115 Idaho 695, 769 p.2d 572 (1989); s.D. Codified Laws § 62-4-52(1)
(2004).
40 4 arthur Larson & Lex k. Larson, Larson’s Workers’ Compensation Law
§ 84.01(4) (2007).
41 Kelly Services, supra note 8.
42 Id. at 20, 106 p.3d at 1035.
gIboo v. CertIFIeD traNsMIssIoN rebUILDers 	383
Cite as 275 Neb. 369

384 	275 Nebraska reports
in which all relevant factors are considered, should be used.”43
While not an exhaustive list, the court then explained that
relevant considerations in determining whether a potential
job lies within a person’s geographical labor market area
would typically include [(1)] availability of transportation,
[(2)] duration of commute, and [(3)] length of workday. .
. . It would also include [(4)] the ability of the person to
make the commute based on his physical condition.44
the pennsylvania supreme Court uses the same approach as
the arizona Court of appeals, but also places some weight on
whether the particular geographic area outside the hub com-
munity is an “‘area where others [from] the same community
would accept employment.’”45
these standards essentially mirror the testimony of Freeman,
who also emphasized that giboo’s 6-hour-workday limitation
and potential inability to make a long commute should be con-
sidered when evaluating the relevance of areas around Dunlap.
Freeman also emphasized one additional factor which the
arizona Court of appeals and pennsylvania supreme Court did
not specifically touch upon: the amount of wages the claimant
could expect to earn in the prospective community. as Freeman
testified, it would be impractical for an individual to make a
2-hour roundtrip each day to omaha/Council bluffs for jobs
which pay only $6 per hour.
[11,12] We agree with the above and therefore hold that com-
munities surrounding the claimant’s hub community should be
considered part of the claimant’s labor market, but only to the
extent that it would be reasonable for the claimant to seek work
in that location. this reasonableness determination should be
based on the totality of the circumstances, with regard for such
factors as (1) availability of transportation, (2) duration of the
commute, (3) length of the workday the claimant is capable of
working, (4) ability of the person to make the commute based
on his or her physical condition, and (5) economic feasibility
43 Id.
44 Id. (citations omitted). see, also, Litzinger v. W.C.A.B. (Builders Transp.),
731 a.2d 258 (pa. Commw. 1999).
45 Dilkus v. W.C.A.B., 543 pa. 392, 399, 671 a.2d 1135, 1139 (1996).

of a person in the claimant’s position working in that location.
regard might also be given to the more generalized inquiry of
whether others who live in the claimant’s hub community regu-
larly seek employment in the prospective area.
[13-15] Nebraska law contemplates that court-appointed
vocational rehabilitation experts will help courts identify voca-
tional rehabilitation plans and apply the statutory factors used
to assess disabled employees’ earning capacities.46 the above
factors should be used by courts—and the court-appointed
vocational experts guiding them—when selecting the relevant
areas to use in setting a claimant’s vocational rehabilitation plan
and loss of earning capacity. of course, the opinion of the court-
appointed expert is given a rebuttable presumption of validity47
and a party who disagrees with that opinion has the burden to
show that it is inaccurate.48 obviously, the rebuttable presump-
tion in favor of the court-appointed expert’s opinion can be
rebutted by a showing that his or her assessment was predicated
on principles that are contrary to law. so, for example, a claim-
ant would have the burden to show that in conducting his or her
assessment, the court-appointed expert incorrectly considered
an area around the hub community where employment oppor-
tunities are not reasonably available to the claimant. similarly,
an employer would have the burden to show that in conducting
his or her assessment, the court-appointed expert incorrectly
omitted an area near the hub community where employment
opportunities are reasonably available to the claimant.
based 	on 	the 	preceding 	discussion, 	it 	is 	possible 	that
omaha/Council bluffs may be taken into account in assess-
ing giboo’s earning capacity. However, any consideration of
omaha/Council bluffs would be based on its proximity to
Dunlap—approximately 50 miles—not by virtue of the fact that
omaha/Council bluffs was the community where giboo lived
and worked at the time of her vocational injury.
46 see § 48-162.01(3).
47 see id.
48 see Dawes v. Wittrock Sandblasting & Painting, 266 Neb. 526, 667 N.W.2d
167 (2003), disapproved in part on other grounds, Kimminau v. Uribe
Refuse Serv., 270 Neb. 682, 707 N.W.2d 229 (2005).
gIboo v. CertIFIeD traNsMIssIoN rebUILDers 	385
Cite as 275 Neb. 369

386 	275 Nebraska reports
2. S tatutory preSumption in favor of utLey ’S aSSeSSment
giboo also challenges the trial court’s decision to adopt the
assessment of Utley, the court-appointed vocational expert.
giboo believes Utley erroneously concluded that giboo suf-
fered a mere 35-percent reduction in her earning capacity as
a result of her injuries. accordingly, giboo believes the court
erred in adopting Utley’s assessment.
[16] as noted above, Nebraska law provides that trained
vocational experts will help workers’ compensation courts han-
dle compensation claims by disabled employees.49 While the
opinion of the court-appointed expert is given a rebuttable pre-
sumption of validity,50 a party who disagrees with the expert’s
conclusions may overcome this presumption by showing that
those conclusions are inaccurate.51 again, one way of show-
ing the inaccuracy of a court-appointed expert’s opinion is to
demonstrate that the opinion is based on assumptions which run
contrary to law. a party can also show that the opinion of the
court-appointed expert is inaccurate by offering proof that the
nonexistence of a fact presumed by the court-appointed expert
is more probable than is its existence.52 as the Nebraska Court
of appeals has observed, a party might carry his or her burden
by, among other things, presenting the testimony of his or her
own vocational expert.53
(a) Improper Focus on Labor Market
giboo claims that Utley failed to give due consideration
to Dunlap—and overly emphasized omaha/Council bluffs—in
conducting his assessment of giboo’s earning capacity. at
trial and during oral argument before this court, counsel for
Ctr insisted that Utley considered both the omaha/Council
49 see § 48-162.01(3).
50 see id.
51 Dawes, supra note 48.
52 Id.
53 see, Romero v. IBP, inc., 9 Neb. app. 927, 623 N.W.2d 332 (2001);
Stansbury v. HEP, Inc., 3 Neb. app. 712, 530 N.W.2d 284 (1995), reversed
on other grounds 248 Neb. 706, 539 N.W.2d 28. see, also, Cords v. City of
Lincoln, 249 Neb. 748, 545 N.W.2d 112 (1996).

bluffs and Dunlap communities in conducting his assessment
of giboo’s earning capacity. However, this suggestion runs
counter to Utley’s reports admitted into evidence.
In his report dated July 18, 2005, Utley states, “after develop-
ing . . . giboo’s vocational profile and eliminating occupations
that would not be compatible with these restrictions, her loss
of access to suitable jobs in the Omaha/Council Bluffs labor
market was determined to be approximately 25%.” (emphasis
supplied.) Later in that same report, Utley noted that wage sur-
veys for jobs suited to giboo pay “in the range of $268.00 per
week to $530.00 per week in the Omaha/Council Bluffs labor
market.” (emphasis supplied.) Utley’s report concludes in the
following manner: “this opinion is expressed with a reasonable
degree of vocational certainty and is based upon . . . Giboo’s
. . . access to jobs in the Omaha/Council Bluffs labor market
area.” (emphasis supplied.)
Dunlap was not referenced in the body of the report. Utley
only referenced Dunlap at the very beginning of his report where
he listed giboo’s current residence as “Dunlap, Ia.” Utley’s
second report, issued after giboo was limited to a 6-hour work-
day, is identical to the first report in these respects.
these statements certainly support the belief that Utley con-
sidered only omaha/Council bluffs in conducting his assess-
ment of giboo’s earning capacity. at a minimum, the repetitive
use of “omaha/Council bluffs” as the labor market indicates
that Utley regarded omaha/Council bluffs as the primary
community rather than Dunlap. It appears Utley’s approach to
the labor market issue conflicts with our holding that Dunlap
is the hub community. Utley should have used Dunlap as the
hub community and only considered omaha/Council bluffs if
doing so would be reasonable under the circumstantial factors
set forth earlier. because Utley apparently did not do either of
these things, his assessment is predicated on principles which
are contrary to law.
(b) Failure to adjust giboo’s Loss of access
giboo also challenges the accuracy of Utley’s ultimate assess-
ment of the extent of giboo’s diminished earning capacity. In
his report dated July 18, 2005, Utley concluded that giboo had
gIboo v. CertIFIeD traNsMIssIoN rebUILDers 	387
Cite as 275 Neb. 369

388 	275 Nebraska reports
suffered a 25-percent loss of access to jobs and a 30-percent
reduction in earning capacity overall. after giboo’s physician
limited her to a 6-hour workday, Utley amended his earning
capacity assessment from a 30-percent reduction to a 35-percent
reduction. However, his loss of access estimate remained at
25 percent.
Utley’s failure to adjust his assessment of giboo’s loss
of access despite her 6-hour-workday limitation suggests that
Utley did not believe that such a limitation would reduce her
access to jobs. but it simply cannot be true that a worker who
is permanently limited to a maximum of 6 hours of work per
day will have the same access to jobs as a worker with no such
limitation. In fact, this very case demonstrates that fact. the
record shows that Ctr went out of its way to accommodate
giboo’s numerous movement and weight-bearing limitations
after her accident and even reassigned her to different posi-
tions of employment in order to keep her on staff. However,
when giboo was permanently limited to a 6-hour workday by
her physicians, even Ctr could not bring itself to accommo-
date this limitation and giboo’s employment was terminated.
therefore, Utley’s assumption that a 6-hour-workday limitation
would not affect giboo’s access to jobs is not accurate. as a
result, the numerical conclusions which depended upon that
assumption must also be inaccurate under the principles we
outlined above.
that Utley changed his assessment of giboo’s earning capac-
ity from a 30-percent reduction to a 35-percent reduction does
not save his assessment. all other things being equal, a person
who can work no more than 6 hours per day will obviously
earn less than an individual with no such limitation. Utley’s
conclusion that giboo’s 6-hour-workday limitation resulted in
an additional 5-percent reduction in her overall earning capac-
ity merely reflects this basic fact. but such a limitation would
also reduce a person’s earning capacity by virtue of the fact that
it reduces the number of jobs available to that individual.
Freeman, giboo’s own vocational expert, testified in support
of those points. While she did not prepare an earning capacity
report of her own, Freeman indicated that such a report was
not necessary for her to determine that Utley’s assessment

was erroneous. the trial court discounted Freeman’s testimony
based on the court’s erroneous belief that Freeman did not
think employment opportunities in omaha/Council bluffs were
relevant. this conclusion is clearly erroneous.
During cross-examination by counsel for Ctr, Freeman was
asked whether she thought it was appropriate to consider both
Dunlap and omaha/Council bluffs in the earning capacity anal-
ysis. Freeman gave a qualified answer in which she stated that
consideration of employment opportunities in omaha/Council
bluffs would depend on whether it was practical for giboo to
take the particular job. Freeman referenced such considerations
as the amount of wages and length of commute.
shortly thereafter, Freeman was asked the same question by
counsel for Ctr. this time, Freeman seemed to indicate that
employment opportunities in omaha/Council bluffs should not
be considered at all. However, Freeman immediately retracted
the statement and stated that she did not understand counsel’s
question. Counsel promised to pose the question again, but did
not. Nevertheless, on no less than five subsequent occasions,
Freeman testified that although jobs in omaha/Council bluffs
might be relevant, it would depend on several circumstantial fac-
tors. on at least one of these occasions, Freeman’s answer came
in response to a question from the bench. In light of Freeman’s
repetitive statements, the court clearly erred in concluding that
Freeman did not think jobs in omaha/Council bluffs were rel-
evant. as such, the court erred in discounting the importance of
Freeman’s testimony. rather than present an inaccurate view of
the relevant issues, Freeman’s prescient testimony actually mir-
rored the two-part approach we adopt today.
In sum, it is clear that Utley’s assessments of giboo’s earn-
ing capacity contain several errors. the assessments not only
depend on an incorrect understanding of the labor market issue,
they also present calculations that depend on demonstrably
false assumptions. as a result, the trial court erred by relying
on Utley’s assessments over Freeman’s contrary testimony.
3. ruLe 11 cLaim
In her final assignment of error, giboo argues that the trial
court violated Workers’ Comp. Ct. r. of proc. 11(a) (2006)
gIboo v. CertIFIeD traNsMIssIoN rebUILDers 	389
Cite as 275 Neb. 369

390 	275 Nebraska reports
by failing to issue a “reasoned decision.” at the time, rule
11 provided:
A. Reasoned Decisions. all parties are entitled to
reasoned decisions which contain findings of fact and
conclusions of law based upon the whole record which
clearly and concisely state and explain the rationale for
the decision so that all interested parties can determine
why and how a particular result was reached. the judge
shall specify the evidence upon which the judge relies.
the decision shall provide the basis for a meaningful
appellate review.
rule 11 provides that lower court decisions must facilitate
appellate review. although the trial court’s order was some-
what ambiguous at times, it nonetheless provided the basis for
meaningful appellate review. the trial court made conclusions
of law regarding the labor market issue. It also concluded that
giboo suffered a 35-percent reduction in her earning capacity
due to her disability and cited Utley’s report as the basis for that
conclusion. the court considered and rejected the testimony by
Freeman. this assignment of error is without merit.
VI. CoNCLUsIoN
We conclude that Dunlap should serve as the hub community
from which to assess giboo’s earning capacity. this conclu-
sion is premised upon evidence in the record which tends to
show that giboo had a good-faith basis to move from omaha to
Dunlap, as well as Ctr’s concession that no contrary evidence
exists regarding giboo’s motive. However, we nonetheless find
it necessary to reverse the order of the compensation court
review panel with directions to remand the cause to the trial
court to determine the exact value of giboo’s earning capacity
in light of her disability and new place of residence.
because Utley did not regard Dunlap as the hub community
and failed to adjust giboo’s loss of access figure, his opinion
is not entitled to any presumption of correctness on remand.
rather, the trial court’s assessment of giboo’s earning capac-
ity should be based on all the evidence in the record, as well
as additional evidence offered by the parties and evidence
presented by Freeman. Finally, the trial court is to rely on the

S tate of nebraSka , appeLLee , v .
danny L. S ing , appeLLant .
746 N.W.2d 690
Filed april 4, 2008. 	No. s-07-345.
1. Convictions: Evidence: Appeal and Error. In reviewing a claim that the evidence
was insufficient to support a criminal conviction, an appellate court does not resolve
conflicts in the evidence, pass on the credibility of witnesses, or reweigh the evi-
dence; such matters are for the finder of fact, and a conviction will be affirmed,
in the absence of prejudicial error, if the evidence admitted at trial, viewed and
construed most favorably to the state, is sufficient to support the conviction.
2. Homicide: Intent: Words and Phrases. a person kills with premeditated malice
if, before the act causing the death occurs, the person has formed the intent or
determined to kill the victim without legal justification.
3. Criminal Law: Evidence: Intent. When the sufficiency of the evidence as
to criminal intent is questioned, independent evidence of specific intent is not
required. rather, the intent with which an act is committed is a mental process
and may be inferred from the words and acts of the defendant and from the cir-
cumstances surrounding the incident.
4. Trial: Pleadings: Proof: Appeal and Error. In order to preserve any error before
an appellate court, the party opposing a motion in limine which was granted must
make an offer of proof outside the presence of the jury unless the evidence is
apparent from the context in which the questions were asked.
5. Criminal Law: Sentences. a sentencing judge must separately determine, state,
and grant the amount of credit on the defendant’s sentence to which the defendant
is entitled.
appeal from the District Court for Douglas County: patricia
a. L amberty, Judge. affirmed as modified.
thomas C. riley, Douglas County public Defender, Mikki C.
Jerabek, and scott C. sladek for appellant.
Jon bruning, attorney general, and James D. smith for
appellee.
heavican, 	C.J., 	wright, 	connoLLy, 	gerrard, 	S tephan,
mccormack, and miLLer -L erman, JJ.
totality of the circumstances when considering whether any
communities around Dunlap should factor into the assessment of
giboo’s earning capacity.
reverSed and remanded with directionS.
state v. sINg 	391
Cite as 275 Neb. 391