Visoso v. Cargill Meat Solutions

O dilOn VisOsO, alsO knOwn as adam ROdRiguez , appellee ,
V. CaRgill meat sOlutiOns , appellant.
778 N.W.2d 504
Filed December 8, 2009. 	No. A-09-339.
1. Workers’ Compensation: Appeal and Error. Pursuant to 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 without or in excess of its powers; (2) the judgment, order, or award was
procured by fraud; (3) there is no 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.
2. ____: ____. Upon appellate review, the findings of fact made by the trial judge of
the compensation court have the effect of a jury verdict and will not be disturbed
unless clearly wrong.
3. ____: ____. An appellate court is obligated in workers’ compensation cases to
make its own determinations as to questions of law.
4. Workers’ Compensation: Legislature: Intent. The Legislature enacted the
Nebraska Workers’ Compensation Act in order to relieve injured workers
from the adverse economic effects caused by a work-related injury or occupa-
tional disease.
5. Workers’ Compensation. Nebraska courts have consistently given the Nebraska
Workers’ Compensation Act a liberal construction to carry out justly the spirit of
the act.
6. Workers’ Compensation: Words and Phrases. For purposes of the Nebraska
Workers’ Compensation Act, the definition of employee or worker includes every
person in the service of an employer who is engaged in any trade, occupation,
business, or profession as described in Neb. Rev. Stat. § 48-106 (Cum. Supp.
2008) under any contract of hire, expressed or implied, oral or written, including
aliens and also including minors.
7. Statutes: Appeal and Error. In the absence of anything to the contrary, statutory
language is to be given its plain and ordinary meaning; an appellate court will
not resort to interpretation to ascertain the meaning of statutory words which are
plain, direct, and unambiguous.
8. Workers’ Compensation: Words and Phrases. Under its plain and ordinary
meaning, work status is not involved in the definition of “alien.”
9. ____: ____. As a general proposition, an illegal alien is an employee or worker
who is covered by the Nebraska Workers’ Compensation Act.
10. ____: ____. Temporary disability is defined as the period during which the
employee is submitting to treatment, is convalescing, is suffering from the injury,
and is unable to work because of the accident.
11. Workers’ Compensation. Even though an employee’s illegal work status would
prevent such employee from working, the employee is nonetheless entitled to
temporary total disability benefits if at least one of the causes of the employee’s
inability to return to work is the employee’s work injury.
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12. Workers’ Compensation: Liability. Under Neb. Rev. Stat. § 48-120(1) (Cum.
Supp. 2006), the employer is liable for all reasonable medical, surgical, and hos-
pital services as and when needed, which are required by the nature of the injury
and which will relieve pain or promote and hasten the employee’s restoration to
health and employment.
13. ____: ____. The only limitation on medical benefits set forth in Neb. Rev. Stat.
§ 48-120 (Cum. Supp. 2006) is that the treatment be reasonable and that the
compensation court has the authority to determine the necessity, character, and
sufficiency of the treatment furnished.
14. Workers’ Compensation: Evidence: Proof. When an employee in a workers’
compensation case presents evidence of medical expenses resulting from injury,
he or she has made out a prima facie case of fairness and reasonableness, causing
the burden to shift to the employer to adduce evidence that the expenses are not
fair and reasonable. There must, of course, be a causal relationship between the
original compensable injury and the medical care.
15. Workers’ Compensation. In workers’ compensation cases, the fact that a disputed
doctor visit encompassed medical matters in addition to a work-related injury
does not, by itself, mean that the costs of such visits were not compensable.
16. ____. Whether medical services were reasonably necessary and related to a
compensable injury is a question of fact which is to be determined by the
trial judge.
17. ____. In workers’ compensation cases, travel expenses are compensable if they
are shown to be reasonably necessary and related to the compensable injury.
18. ____. Whether the travel expenses were reasonably necessary and related to
the compensable injury is a question of fact which is to be determined by the
trial judge.
19. ____. When as a result of an injury an employee is unable to perform suitable
work for which he or she has previous training or experience, he or she is entitled
to vocational rehabilitation services.
20. ____. The purpose of vocational rehabilitation under workers’ compensation is to
restore an injured employee to suitable gainful employment. In order to effectuate
this purpose, the employee must be eligible and willing to return to some form
of employment.
21. ____. Any determination regarding an employee’s entitlement to vocational reha-
bilitation is made at the time of maximum medical improvement.
Appeal from the Workers’ Compensation Court. Affirmed.
James D. Hamilton and Amanda A. Dutton, of baylor,
Evnen, Curtiss, Grimit & Witt, L.L.P., for appellant.
Ryan C. Holsten and Travis Allan Spier, of Atwood, Holsten
& brown, P.C., L.L.o., for appellee.
sieVeRs and Cassel, Judges, and H annOn, Judge, Retired.
vISoSo V. CARGILL mEAT SoLUTIoNS 	203
Cite as 18 Neb. App. 202

sieVeRs, Judge.
This appeal presents the question of whether the employee’s
status as an illegal immigrant impacts his entitlement to tem-
porary total disability and vocational rehabilitation under the
Nebraska Workers’ Compensation Act. Cargill meat Solutions
(Cargill) appeals from an order of a three-judge review panel
for the Nebraska Workers’ Compensation Court. The review
panel affirmed the trial court’s (1) running award to odilon
visoso for temporary total disability, (2) order that Cargill
was to pay $1,756 to the Schuyler Clinic, and (3) finding and
order that visoso was entitled to mileage reimbursement of
$1,029.27. The review panel reversed the trial court’s finding
that because of his illegal alien immigrant status, visoso was
not entitled to vocational rehabilitation. We affirm.
FACTUAL bACkGRoUND
on may 9, 2006, visoso, also known as Adam Rodriguez,
was working for Cargill in Schuyler, Nebraska. on that date,
visoso sustained injuries to his neck and body when a slab of
meat fell from a hook and struck him on the back of the head
and shoulder. visoso sought medical treatment from the time
of the injury. Treatment was initially conservative and included
physical therapy, chiropractic services, pain medication, and
steroid injections. visoso eventually underwent an anterior cer-
vical interbody diskectomy and arthrodesis surgery on october
4, 2007.
From the time of his may 9, 2006, work accident until his
october 4, 2007, surgery, visoso continued to work at Cargill
on light duty. visoso’s employment was terminated in late
october 2007 because he was an illegal, undocumented worker.
As of the date of trial, January 3, 2008, visoso testified that he
had not been medically released to return to work following his
october 2007 surgery.
We note that visoso went by the name “Adam Rodriguez”
when he applied for and obtained employment with Cargill,
during the course of his employment with Cargill, while seek-
ing medical treatment for his work-related injuries, and when
he originally filed his workers’ compensation lawsuit. It is
undisputed that during the time of his employment with Cargill
204 	18 NEbRASkA APPELLATE REPoRTS

and at the time of trial, visoso was an illegal, undocumented
alien. visoso testified that he came from mexico and that he
illegally entered the United States in 2002. Cargill claims to
have been unaware of visoso’s illegal status until october
2007, although he revealed such status on August 21, 2007,
when his deposition was taken in this case.
PRoCEDURAL bACkGRoUND
visoso filed his petition on November 22, 2006, alleging
that on may 9, he sustained personal injury in an accident
arising out of and in the course of his employment by Cargill.
visoso alleged that the neck and body injuries occurred when
the slab of meat fell on his head. visoso alleged that the mat-
ters in dispute were as follows: medical costs; temporary total
disability; mileage relating to his injury; and, if he had reached
maximum medical improvement by the time of trial, the extent
of his permanent impairment and disability and his entitlement
to vocational rehabilitation.
Cargill filed its answer denying the allegations in visoso’s
petition. Cargill alleged that visoso’s disability, if any, did not
arise out of or in the course of his employment by Cargill.
Cargill further alleged that it has made payment to or on behalf
of visoso of all medical, surgical, and hospital expenses and all
compensation benefits to which visoso may be entitled or for
which Cargill may be liable.
The workers’ compensation court trial judge’s award was
filed on April 2, 2008. The judge found that on may 9, 2006,
visoso was employed by Cargill as a laborer, and that while
engaged in the duties of his employment, he suffered injuries
to his cervical spine as a result of an accident arising out of
and in the course of his employment. The judge found that a
front quarter of beef fell from a conveyor and struck visoso on
the rear of his head, neck, and shoulders. The judge found that
visoso’s injury was initially diagnosed as a cervical strain but
later as “annular tears at C4-5, C5-6 and cervical spondylosis.”
The judge held that visoso is entitled to benefits as provided
under the Nebraska Workers’ Compensation Act.
The judge determined that at the time of the accident
and injury, visoso was receiving an average weekly wage of
vISoSo V. CARGILL mEAT SoLUTIoNS 	205
Cite as 18 Neb. App. 202

$514.56 and thus was entitled “to benefits of $343.04 per week
from october 4, 2007, through the date of trial and for so
long in the future as [visoso] shall remain temporarily totally
disabled and further order of the Court.” We assume the last
phrase in the foregoing quote from the trial judge’s decision
was referencing Davis v. Crete Carrier Corp., 274 Neb. 362,
740 N.W.2d 598 (2007) (employer may not unilaterally termi-
nate workers’ compensation award of indefinite temporary total
disability benefits absent modification of award of benefits).
The trial judge stated that he relied upon the opinions of Dr.
Ric Jensen regarding visoso’s continuing temporary total dis-
ability, as well as visoso’s testimony, in making such finding.
Cargill was ordered to pay medical expenses on visoso’s behalf
to numerous medical providers, including the Schuyler Clinic
($1,756). Cargill was also ordered to reimburse visoso for mile-
age in the amount of $1,029.27. The judge found that Cargill
should pay future medical expenses reasonably necessary for
evaluation and treatment of visoso’s cervical spine injury. The
judge specifically found that visoso had not reached maximum
medical improvement. The judge also found that visoso will
not be entitled to vocational rehabilitation services because he
is an illegal, undocumented worker.
on April 16, 2008, Cargill filed its application for review
by a three-judge review panel. Cargill’s application alleged
that the court erred in (1) finding that visoso was temporarily
totally disabled from the date of trial for so long in the future
as visoso shall remain temporarily disabled and until further
order of the court, (2) ordering payment of $1,756 to the
Schuyler Clinic, and (3) ordering mileage reimbursement of
$1,029.27 to visoso.
In its order filed on February 27, 2009, the review panel
noted that visoso cross-appealed the trial court’s finding that
visoso will be ineligible for vocational rehabilitation services
upon achieving maximum medical improvement. The review
panel affirmed the trial court’s award in all respects except
for the trial court’s determination that visoso is not entitled to
vocational rehabilitation services. The review panel reversed
such determination as premature, finding:
206 	18 NEbRASkA APPELLATE REPoRTS

The time to rule on [visoso’s] entitlement to vocational
rehabilitation services is after [he] reaches maximum
medical recovery, with his impairments and restrictions
known, with his then current immigration status known,
and with a contemporaneous finding made about whether
or not he plans to return to his native country.
Cargill now appeals the review panel’s decision.
ASSIGNmENTS oF ERRoR
Cargill alleges that (1) the trial court erred in finding, and
the review panel erred in affirming, that visoso was entitled to
a running award of temporary total disability; (2) the trial court
erred in ordering, and the review panel erred in affirming, pay-
ment of $1,756 to the Schuyler Clinic; (3) the trial court erred
in ordering, and the review panel erred in affirming, mileage
reimbursement of $1,029.27 to visoso; and (4) the review panel
erred in reversing the trial court’s finding that visoso was not
entitled to vocational rehabilitation.
STANDARD oF REvIEW
[1] Pursuant to 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 compensa-
tion court acted without or in excess of its powers; (2) the
judgment, order, or award was procured by fraud; (3) there is
no 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. Davis v. Crete Carrier Corp., 274 Neb. 362, 740
N.W.2d 598 (2007).
[2,3] Upon appellate review, the findings of fact made by the
trial judge of the compensation court have the effect of a jury
verdict and will not be disturbed unless clearly wrong. Id. An
appellate court is obligated in workers’ compensation cases to
make its own determinations as to questions of law. Id.
ANALYSIS
Temporary Total Disability.
Cargill argues it was error to find that visoso was tempo-
rarily totally disabled from the date of trial for so long in the
vISoSo V. CARGILL mEAT SoLUTIoNS 	207
Cite as 18 Neb. App. 202

future as he shall remain temporarily disabled. Cargill argues
that temporary disability is available during the period the
employee is unable to work because of the accident, and in this
case, visoso is not able to work because he is an illegal immi-
grant who cannot work legally within the United States. Thus,
Cargill argues that visoso is not entitled to a running award of
temporary total disability.
[4,5] Cargill does not claim that visoso’s illegal alien status
disqualifies him entirely from benefits under the Nebraska
Workers’ Compensation Act. Rather, Cargill asserts that such
status prevents him from receiving temporary total disabil-
ity and vocational rehabilitation. Nonetheless, we believe our
analysis is advanced by consideration of the scope of the
Nebraska Workers’ Compensation Act. The Legislature enacted
the Nebraska Workers’ Compensation Act in order to relieve
injured workers from the adverse economic effects caused by
a work-related injury or occupational disease. Foote v. O’Neill
Packing, 262 Neb. 467, 632 N.W.2d 313 (2001). And the
Nebraska Supreme Court has consistently given the Nebraska
Workers’ Compensation Act a liberal construction to “‘“carry
out justly the spirit of the Nebraska Workers’ Compensation
Act.”’” 262 Neb. at 473, 632 N.W.2d at 320.
[6-9] For purposes of the Nebraska Workers’ Compensation
Act, the definition of “employee” or “worker” includes: “Every
person in the service of an employer who is engaged in any
trade, occupation, business, or profession as described in sec-
tion 48-106 under any contract of hire, expressed or implied,
oral or written, including aliens and also including minors.”
Neb. Rev. Stat. § 48-115(2) (Cum. Supp. 2008) (emphasis sup-
plied). However, the Legislature did not further define “alien.”
“In the absence of anything to the contrary, statutory language
is to be given its plain and ordinary meaning; an appellate
court will not resort to interpretation to ascertain the meaning
of statutory words which are plain, direct, and unambiguous.”
Big John’s Billiards v. Balka, 260 Neb. 702, 707, 619 N.W.2d
444, 448 (2000). black’s Law Dictionary 84 (9th ed. 2009)
defines the term “alien” as follows:
A person who resides within the borders of a country but
is not a citizen or subject of that country; a person not
208 	18 NEbRASkA APPELLATE REPoRTS

owing allegiance to a particular nation. . . . In the United
States, an alien is a person who was born outside the
jurisdiction of the United States, who is subject to some
foreign government, and who has not been naturalized
under U.S. law.
Thus, under its plain and ordinary meaning, work status
is not involved in the definition of “alien.” In Economy
Packing v. Illinois Workers’ Comp., 387 Ill. App. 3d 283,
901 N.E.2d 915, 327 Ill. Dec. 182 (2008), the court held
that the plain meaning of “aliens” in the Illinois Workers’
Compensation Act includes not only foreign-born citizens
that can legally work in the United States, but also those that
cannot. After giving § 48-115(2) a liberal construction, we
find that although visoso cannot legally work in the United
States because of his immigration status, he is nonetheless
an “employee” or “worker” who, as a general proposition, is
covered by the Nebraska Workers’ Compensation Act. If it
was the intent of the Nebraska Legislature to exclude illegal
aliens from the definition of covered employees or workers, it
could have easily included a modifier doing so in the statute,
but the Legislature did not, and has not, done so. We now turn
to visoso’s running award of temporarily total disability from
the date of trial.
[10,11] The Nebraska Supreme Court has defined temporary
disability as “the period during which the employee is submit-
ting to treatment, is convalescing, is suffering from the injury,
and is unable to work because of the accident.” Frauendorfer v.
Lindsay Mfg. Co., 263 Neb. 237, 245, 639 N.W.2d 125, 134-35
(2002). The trial court awarded visoso temporary total disabil-
ity benefits from october 4, 2007, the date of surgery, through
the date of trial, January 3, 2008, and for so long in the future
as visoso shall remain temporarily totally disabled. In a fol-
lowup appointment on November 14, 2007, Dr. Jensen ordered
that visoso should remain off work until a followup appoint-
ment 6 weeks later, at which time visoso would be reevaluated.
And in a letter to Dr. Thomas Wong dated November 20, 2007,
Dr. Jensen stated:
For now, I will plan to follow up with [visoso] in
approximately 1 month for further assessment and x-ray
vISoSo V. CARGILL mEAT SoLUTIoNS 	209
Cite as 18 Neb. App. 202

imaging of his cervical spinal fusion construct. In the
meantime, [visoso] will remain in an off work status until
he is re-evaluated. At that time I may consider returning
him to employment on a limited basis.
Dr. Jensen’s opinions are the only expert medical testimony
concerning visoso’s postoperative work status contained in the
record. visoso testified that during his final followup appoint-
ment on December 19, Dr. Jensen did not release him to per-
form work of any kind. There is no evidence in the record that
visoso was given a medical release to return to work, and his
testimony was that he was not. Thus, on this evidence, the trial
judge was not clearly wrong in finding that visoso’s injury was
a cause of his inability to work as of the time of trial. Even
though visoso’s illegal work status would have prevented him
from working, visoso was nonetheless entitled to temporary
total disability benefits because one of the causes of his inabil-
ity to return to work was his work injury.
Payment to Schuyler Clinic.
[12-14] Cargill argues it was error to order payment of
$1,756 to the Schuyler Clinic because visoso was treated there
for a plethora of conditions that were not work related. These
bills were received in evidence without objection, and thus
the question is simply what did they prove and how did their
receipt in evidence affect the burden of proof concerning medi-
cal expenses. In Tomlin v. Densberger Drywall, 14 Neb. App.
288, 301-02, 706 N.W.2d 595, 608 (2005), we said:
Neb. Rev. Stat. § 48-120(1) (Reissue 2004) provides:
“The employer is liable for all reasonable medical, sur-
gical, and hospital services . . . as and when needed,
which are required by the nature of the injury and which
will relieve pain or promote and hasten the employee’s
restoration to health and employment . . . .” “The only
limitation on medical benefits set forth in § 48-120 is that
the treatment be reasonable and that the compensation
court has the authority to determine the necessity, char-
acter, and sufficiency of the treatment furnished.” Foote
v. O’Neill Packing, 262 Neb. 467, 474, 632 N.W.2d 313,
320 (2001). . . . [T]he Nebraska Workers’ Compensation
210 	18 NEbRASkA APPELLATE REPoRTS

Act is to be broadly construed to accomplish the benefi-
cent purpose of the act, see Foote, supra . . . .
And “[w]hen an employee in a workers’ compensation case
presents evidence of medical expenses resulting from injury,
he or she has made out a prima facie case of fairness and
reasonableness, causing the burden to shift to the employer
to adduce evidence that the expenses are not fair and reason-
able.” Dawes v. Wittrock Sandblasting & Painting, 266 Neb.
526, 547, 667 N.W.2d 167, 187 (2003), overruled on other
grounds, Kimminau v. Uribe Refuse Serv., 270 Neb. 682, 707
N.W.2d 229 (2005). See, also, Tomlin v. Densberger Drywall,
supra. And “‘[t]here must, of course, be a causal relation-
ship between the original compensable injury and the medical
care.’” Zitterkopf v. Aulick Indus., 16 Neb. App. 829, 832, 753
N.W.2d 370, 374 (2008) (quoting 5 Arthur Larson & Lex k.
Larson, Larson’s Workers’ Compensation Law § 94.03[1] at
94-38 n.2 (2007)).
[15] In Zitterkopf v. Aulick Indus., supra, this court found
that when viewed in the light most favorable to the success-
ful party—the employee—the evidence showed that the drug
Provigil was medically necessary for at least two purposes:
(1) to treat the side effects of pain medication necessitated by
the compensable injury and (2) to treat the employee’s unre-
lated sleep apnea. This court held that the medication’s use
was in part for the treatment of the employee’s work-related
condition and that therefore the trial judge was not clearly
wrong in finding that the employer must compensate for its
expense. Accordingly, the fact that the disputed doctor visit
encompassed medical matters in addition to the work injury
does not, by itself, mean that the costs of the visits were
not compensable.
The Schuyler Clinic reports were received into evidence
without objection. We will address each clinic visit which
Cargill claims was not work related.
• 9/11/06: Cargill states that “the doctor assessed diabetes.”
However, the report stated that visoso went to the clinic
“complaining of back and head pain after 100 lb of meat fell
on top of his head.” In addition to the diabetes assessment,
the doctor also assessed neck pain.
vISoSo V. CARGILL mEAT SoLUTIoNS 	211
Cite as 18 Neb. App. 202

• 9/22/06: Cargill states that visoso presented for a “follow
up with chest pain,” also complaining of abdominal pain.
However, the report stated that visoso “continues to have pain
in his neck after 100 lb of meat fell on top of his head,” and
visoso was assessed with neck pain.
• 9/25/06: Cargill states that visoso followed up with regard
to chest pain, for which he had been admitted to the hos-
pital, and was diagnosed with a nonfunctioning gallbladder.
However, that report stated that visoso was also assessed with
neck pain and noted that visoso had an appointment to see a
spine doctor.
• 9/27/06: Cargill states the primary diagnosis was “gallbladder
disease.” However, the report stated that visoso followed up
with Dr. Wong for “neck pain which is work related.” Again,
visoso was assessed with neck pain.
• 10/24/06: Cargill states the primary diagnosis was peptic dis-
ease. However, Dr. Wong also assessed visoso with cervical
disk disease. Additionally, Dr. Wong spoke with visoso about
a balance problem which was thought to be related to the
cervical disk problem.
• 11/22/06: Cargill states that “the only diagnosis was hypergly-
cemia.” However, the visit was also a followup after receiving
a steroid injection for his neck injury.
• 5/23/07: Cargill states that the visit primarily concerned
visoso’s diabetes and elevated liver enzymes. However, Dr.
Wong noted that visoso continued to have pain in his back
and neck and assessed him with “[c]hronic neck pain and low
back pain.”
• 6/20/07, 7/18/07, and 8/15/07: Cargill states those visits
related to visoso’s diabetes. However, in the reports for each
of those visits, Dr. Wong stated that visoso continued to have
pain in his neck and back.
[16] Through the medical records from the controverted
visits with Dr. Wong, visoso clearly made out a prima facie
case of fairness, reasonableness, and necessity because each
visit included evaluation, treatment, or followup from his work
injury. Therefore, the burden shifted to Cargill to adduce evi-
dence that the expenses are not fair and reasonable. See Dawes
v. Wittrock Sandblasting & Painting, 266 Neb. 526, 667 N.W.2d
212 	18 NEbRASkA APPELLATE REPoRTS

167 (2003), overruled on other grounds, Kimminau v. Uribe
Refuse Serv., 270 Neb. 682, 707 N.W.2d 229 (2005). The trial
judge implicitly found that Cargill did not meet its burden.
Whether the medical services were reasonably necessary and
related to the compensable work-related injury is a question of
fact which is to be determined by the trial judge. See Davis v.
Crete Carrier Corp., 274 Neb. 362, 740 N.W.2d 598 (2007).
The trial judge’s decision to order Cargill to make payment of
$1,756 to the Schuyler Clinic was not clearly wrong, and thus
we affirm such decision.
Mileage Reimbursement.
[17,18] Cargill argues it was error to order mileage reim-
bursement of $1,029.27 to visoso, because visoso had not
proved that such expenses were incurred as a result of the work
accident. In workers’ compensation cases, travel expenses are
compensable if they are shown to be reasonably necessary
and related to the compensable injury. Tomlin v. Densberger
Drywall, 14 Neb. App. 288, 706 N.W.2d 595 (2005). Again,
whether the travel expenses were reasonably necessary and
related to the compensable injury is a question of fact which is
to be determined by the trial judge. See Davis v. Crete Carrier
Corp., supra. After reviewing the mileage expenses in evi-
dence, we find that the trial judge’s decision to order Cargill
to pay mileage reimbursement of $1,029.27 to visoso was not
clearly wrong, and thus we affirm such decision.
Vocational Rehabilitation.
[19-21] Cargill argues that the review panel erred in revers-
ing the trial court’s finding that visoso, an illegal immigrant,
was not entitled to vocational rehabilitation. When as a result of
the injury an employee is unable to perform suitable work for
which he or she has previous training or experience, he or she
is entitled to vocational rehabilitation services. See Neb. Rev.
Stat. § 48-162.01(3) (Cum. Supp. 2008). The purpose of voca-
tional rehabilitation under workers’ compensation is to restore
an injured employee to suitable gainful employment. Ortiz v.
Cement Products, 270 Neb. 787, 708 N.W.2d 610 (2005). See,
also, § 48-162.01(3). In order to effectuate this purpose, the
employee must be eligible and willing to return to some form
vISoSo V. CARGILL mEAT SoLUTIoNS 	213
Cite as 18 Neb. App. 202

of employment. Ortiz v. Cement Products, supra. It is impor-
tant to recall that any determination regarding an employee’s
entitlement to vocational rehabilitation is made at the time of
maximum medical improvement. See Green v. Drivers Mgmt.,
Inc., 263 Neb. 197, 639 N.W.2d 94 (2002) (without finding
of permanent medical impairment, there can be no permanent
restrictions, and without impairment or restrictions, there can
be no disability or labor market access loss; absent permanent
impairment or restrictions, worker is fully able to return to
any employment for which he or she was fitted before acci-
dent, including occupations held before injuries occurred). As
§ 48-162.01(3) indicates, if one is able to return to work, he or
she is not entitled to vocational rehabilitation.
In Ortiz v. Cement Products, 270 Neb. at 791, 708 N.W.2d
at 613, the only case in Nebraska dealing with vocational
rehabilitation benefits for illegal aliens, the Nebraska Supreme
Court said:
At trial, ortiz testified that he will not be returning to
mexico, but, rather, intended to remain in this country,
where he may not be lawfully employed because of his
illegal status. See 8 U.S.C. § 1324a (2000). Awarding
ortiz vocational rehabilitation services in light of his
avowed intent to remain an unauthorized worker in this
country would be contrary to the statutory purpose of
returning ortiz to suitable employment. Therefore, we
hold that based upon the facts of this case, ortiz is not
entitled to vocational rehabilitation services.
There was no evidence that visoso intends to remain an unau-
thorized worker in this country, and thus the instant case is fac-
tually distinguishable from Ortiz v. Cement Products, supra.
The trial judge found that visoso “will not be entitled to
vocational rehabilitation services as he is an illegal undocu-
mented worker.” The review panel reversed, holding:
The time to rule on [visoso’s] entitlement to voca-
tional rehabilitation services is after [he] reaches maxi-
mum medical recovery, with his impairments and restric-
tions known, with his then current immigration status
known, and with a contemporaneous finding made about
whether or not he plans to return to his native country.
214 	18 NEbRASkA APPELLATE REPoRTS

Green v. Drivers mgmt., Inc., 263 Neb. 197, 639 N.W.2d
94 (2002).
We agree with that holding and rationale. The trial judge’s find-
ing that visoso will not be entitled to vocational rehabilitation
is premature. See Green v. Drivers Mgmt., Inc., supra. Whether
illegal alien status prevents an award of vocational rehabilita-
tion because such status prohibits working in this country is a
question that we need not reach.
CoNCLUSIoN
For the reasons stated above, we affirm the findings of
the 	three-judge 	review 	panel 	for 	the 	Nebraska 	Workers’
Compensation Court.
affiRmed.
vISoSo V. CARGILL mEAT SoLUTIoNS 	215
Cite as 18 Neb. App. 202