Becerra v. United Parcel Service

414 	284 NEBRASKA REPORTS
Jeffrey Becerra, appellee, v.
United parcel Service, appellant.
822 N.W.2d 327
Filed September 28, 2012. 	No. S-11-1098.
1. Workers’ Compensation: Appeal and Error. A judgment, order, or award of
the Workers’ Compensation Court may be modified, reversed, or set aside only
upon the grounds that (1) the compensation court acted without or in excess of its
powers; (2) the judgment, order, or award was procured by fraud; (3) there is not
sufficient competent evidence in the record to warrant the making of the order,
judgment, or award; or (4) the findings of fact by the compensation court do not
support the order or award.
2. Workers’ Compensation: Wages. The determination of how the average weekly
wage of a workers’ compensation claimant should be calculated is a question
of law.
3. Workers’ Compensation: Appeal and Error. Regarding questions of law,
an appellate court in workers’ compensation cases is obligated to make its
own decisions.
4. Jurisdiction: Appeal and Error. Before reaching the legal issues presented for
review, it is the duty of an appellate court to determine whether it has jurisdiction
over the matter before it.
5. Jurisdiction: Final Orders: Appeal and Error. For an appellate court to acquire
jurisdiction of an appeal, there must be a final order entered by the court from
which the appeal is taken; conversely, an appellate court is without jurisdiction to
entertain appeals from nonfinal orders.
6. Final Orders: Appeal and Error. Under Neb. Rev. Stat. § 25-1902 (Reissue
2008), the three types of final orders that an appellate court may review are (1) an
order that affects a substantial right and that determines the action and prevents
a judgment, (2) an order that affects a substantial right made during a special
proceeding, and (3) an order that affects a substantial right made on summary
application in an action after a judgment is rendered.
7. Workers’ Compensation. Workers’ compensation cases are special proceedings.
8. Final Orders: Appeal and Error. A substantial right is affected if an order
affects the subject matter of the litigation, such as diminishing a claim or defense
that was available to an appellant before the order from which an appeal is taken.
9. Actions: Words and Phrases. An “independent special proceeding” is one that
is separate from the issues raised in any underlying dispute and is not a phase in
a protracted special proceeding with interrelated phases.
10. Final Orders: Appeal and Error. When multiple issues are presented to a trial
court for simultaneous disposition in the same proceeding and the court decides
some of the issues, while reserving other issues for later determination, the
court’s determination of fewer than all the issues is an interlocutory order and is
not a final order for the purpose of an appeal.
11. 	Workers’ Compensation: Wages. For employees who are paid by the hour, the
average weekly wage for workers’ compensation purposes is determined pursuant
to Neb. Rev. Stat. §§ 48-121 and 48-126 (Reissue 2010).
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:41 AM CST

BECERRA v. UNITED PARCEL SERVICE 	415
Cite as 284 Neb. 414
12. Statutes: Appeal and Error. An appellate court gives statutory language its
plain and ordinary meaning.
13. Workers’ Compensation. As a general rule, the Nebraska Workers’ Compensation
Act should be construed to accomplish its beneficent purposes.
14. ____. An injured employee is entitled to vocational rehabilitation services as may
be reasonably necessary to restore him or her to suitable employment when the
employee is unable to perform suitable work for which he or she has previous
training or experience as a result of the injury.
15. Workers’ Compensation: Wages: Words and Phrases. Accepting a job paying
minimum wage does not automatically restore a claimant to suitable or gainful
employment pursuant to Neb. Rev. Stat. § 48-162.01 (Reissue 2010), where the
claimant’s previous employment was at a significantly higher wage.
16. Workers’ Compensation. The goal of any average income test is to produce
an honest approximation of a workers’ compensation claimant’s probable future
earning capacity.
Appeal from the Workers’ Compensation Court. Affirmed.
Charles L. Kuper, of Larson, Kuper & Wenninghoff, P.C.,
L.L.O., for appellant.
M.H. Weinberg, of Weinberg & Weinberg, P.C., for appellee.
H eavican, c.J., WrigHt, connolly, StepHan, MccorMack,
M iller-lerMan, and caSSel, JJ.
caSSel, J.
INTRODUCTION
An hourly employee who worked part time while attending
college sustained a work-related injury. We must decide how
to calculate his average weekly wage in order to determine the
appropriate vocational rehabilitation priority—using his part-
time wages, as the employer contends, or wages calculated
using a 40-hour workweek, as the court below ruled. Under
the circumstances of this case, a vocational rehabilitation plan
seeking an average weekly wage based on a 40-hour week—
the calculation used for purposes of permanent disability—best
restores the employee to suitable employment. We affirm the
award of the compensation court.
BACKGROUND
In July 2010, Jeffrey Becerra injured his lower back in an
accident arising out of and in the course of his employment

416 	284 NEBRASKA REPORTS
with United Parcel Service (UPS). As a result, he suffered
a 15-percent loss of earning capacity and is limited by per-
manent work restrictions. The compensability of Becerra’s
injury is not at issue, and there is no dispute that UPS paid
all temporary total disability and permanent partial disability
benefits owed.
At the time of the accident, Becerra earned $12.60 an hour
and worked approximately 17 hours per week while attend-
ing college. The parties stipulated that Becerra had an average
weekly wage of $217.86 for purposes of temporary disability
and of $504 for purposes of permanent disability. Becerra
testified that UPS had not offered him his former position or
any alternative position. He desired formal retraining to lead
him into a career other than loading or unloading parcels at
UPS. Becerra testified that prior to the accident, he could have
worked 40 hours per week on a regular basis if he had not been
attending college. He stopped attending classes in the fall of
2010, but he wished to go back to school for an education in
engineering. Becerra testified that there was nothing keeping
him from working 40 hours per week at the time of trial.
The agreed-upon vocational rehabilitation counselor met
with Becerra to develop a loss of earning capacity analysis
and to discuss vocational rehabilitation options, but had not
developed a vocational plan at the time of trial because he
was unable to provide the compensation court with an agreed-
upon or court-ordered average weekly wage. The counselor
testified that the determination of the proper wage would affect
the vocational priority that he would select: The vocational
rehabilitation plan would more than likely be for retraining if
the average weekly wage were determined to be $504 or be
for job placement if the wage were determined to be $217.86
per week.
The compensation court framed the issue as whether a
vocational rehabilitation plan should be aimed toward finding
Becerra a job “at the $217.86 temporary total average weekly
wage” or “at $504 per week for the permanent injury wage
rate.” The court found that Becerra was unable to obtain suit-
able employment at or near his preinjury wage rate and that
a formal plan of retraining was the appropriate priority under

BECERRA v. UNITED PARCEL SERVICE 	417
Cite as 284 Neb. 414
Neb. Rev. Stat. § 48-162.01(3) (Reissue 2010). The court
observed that Becerra’s restrictions were permanent and rea-
soned that Becerra should not be limited to the average weekly
wage for temporary disability. The court therefore determined
that Becerra was entitled to a vocational rehabilitation plan of
formal training and that the permanent wage rate calculation of
$504 should be used to develop the formal plan.
UPS timely appealed, and we moved the case to our docket
under our statutory authority to regulate the caseloads of the
appellate courts of this state.1
ASSIGNMENTS OF ERROR
UPS assigns two errors. First, UPS alleges that the compen-
sation court erred as a matter of law in finding the appropriate
average weekly wage to use in formulating a plan of voca-
tional rehabilitation should be the permanent injury wage rate.
Second, UPS contends that the court erred in finding Becerra
was entitled to a vocational rehabilitation plan consisting of
formal training.
STANDARD OF REVIEW
[1] A judgment, order, or award of the Workers’ Compensation
Court may be modified, reversed, or set aside only upon the
grounds that (1) the compensation court acted without or in
excess of its powers; (2) the judgment, order, or award was
procured by fraud; (3) there is not sufficient competent evi-
dence 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.2
[2,3] The determination of how the average weekly wage
of a workers’ compensation claimant should be calculated is
a question of law.3 Regarding questions of law, an appellate
court in workers’ compensation cases is obligated to make its
own decisions.4
1 See Neb. Rev. Stat. § 24-1106 (Reissue 2008).
2 Sellers v. Reefer Systems, 283 Neb. 760, 811 N.W.2d 293 (2012).
3 Mueller v. Lincoln Public Schools, 282 Neb. 25, 803 N.W.2d 408 (2011).
4 Id.

418 	284 NEBRASKA REPORTS
ANALYSIS
Jurisdiction.
[4,5] Before reaching the legal issues presented for review,
it is the duty of an appellate court to determine whether it has
jurisdiction over the matter before it.5 For an appellate court to
acquire jurisdiction of an appeal, there must be a final order
entered by the court from which the appeal is taken; con-
versely, an appellate court is without jurisdiction to entertain
appeals from nonfinal orders.6
[6-8] The compensation court’s award was a final order.
Under Neb. Rev. Stat. § 25-1902 (Reissue 2008), the three
types of final orders that an appellate court may review are
(1) an order that affects a substantial right and that determines
the action and prevents a judgment, (2) an order that affects a
substantial right made during a special proceeding, and (3) an
order that affects a substantial right made on summary appli-
cation in an action after a judgment is rendered.7 Workers’
compensation cases are special proceedings.8 A substantial
right is affected if an order affects the subject matter of the lit-
igation, such as diminishing a claim or defense that was avail-
able to an appellant before the order from which an appeal
is taken.9 The award of vocational rehabilitation in the form
of formal training eliminated UPS’ claim that Becerra was
not entitled to vocational rehabilitation. Thus, the order falls
under the second category of final orders listed in § 25-1902
because it was made in a special proceeding and affected a
substantial right.
[9] Becerra asserts that we lack jurisdiction because the
compensation court decided some, but not all, of the issues
before it. Specifically, he identifies the undecided issues as the
type and the length of the retraining program. Becerra cites
5 Big John’s Billiards v. State, 283 Neb. 496, 811 N.W.2d 205 (2012).
6 Id.
7 Id.
8 See StoreVisions v. Omaha Tribe of Neb., 281 Neb. 238, 795 N.W.2d 271
(2011), modified on denial of rehearing 281 Neb. 978, 802 N.W.2d 420.
9 Big John’s Billiards v. State, supra note 5.

BECERRA v. UNITED PARCEL SERVICE 	419
Cite as 284 Neb. 414
Big John’s Billiards v. State,10 where we iterated that an order
resolving all the issues raised in an independent special pro-
ceeding is a final, appealable order. An “independent special
proceeding” is one that is separate from the issues raised in any
underlying dispute and is not a phase in a protracted special
proceeding with interrelated phases.11 While the proceeding in
the instant case was a special proceeding, it was not an inde-
pendent special proceeding.
[10] A more apt rule is that when multiple issues are pre-
sented to a trial court for simultaneous disposition in the same
proceeding and the court decides some of the issues, while
reserving other issues for later determination, the court’s deter-
mination of fewer than all the issues is an interlocutory order
and is not a final order for the purpose of an appeal.12 Here, the
petition identified “rehabilitation” as an issue in dispute and
the court determined that Becerra was entitled to vocational
rehabilitation in the form of formal training. The court did not
expressly reserve anything for later determination. Further, we
find no authority—and Becerra points us to none—requiring
that an award of vocational rehabilitation specify the length
and type of retraining program.
Average Weekly Wage.
The compensation court found that the appropriate aver-
age weekly wage to use in formulating a plan of vocational
rehabilitation should be the permanent injury wage rate under
Neb. Rev. Stat. § 48-121 (Reissue 2010). UPS argues that
§ 48-121(4) is a schedule of compensation and is not applica-
ble to the determination of what is suitable and gainful employ-
ment under § 48-162.01. UPS asserts that § 48-121 applies
only to the payment of benefits and not to the calculation of
wages. We disagree.
[11,12] For employees who are paid by the hour, the average
weekly wage is determined pursuant to § 48-121 and Neb. Rev.
10 Id.
11 See Kremer v. Rural Community Ins. Co., 280 Neb. 591, 788 N.W.2d 538
(2010).
12 See Wagner v. Wagner, 275 Neb. 693, 749 N.W.2d 137 (2008).

420 	284 NEBRASKA REPORTS
Stat. § 48-126 (Reissue 2010).13 If an employee’s rate of wages
is fixed by the hour,
his or her weekly wages shall be taken to be his or her
average weekly income for the period of time ordinar-
ily constituting his or her week’s work, and using as the
basis of calculation his or her earnings during as much
of the preceding six months as he or she worked for the
same employer, except as provided in sections 48-121
and 48-122.14
Consequently, an employee’s weekly wages must be computed
by averaging his or her earnings over the 6 months preceding
the injury unless § 48-121 or Neb. Rev. Stat. § 48-122 (Reissue
2010) provides differently. Both § 48-121(4), regarding dis-
ability resulting from permanent disability, and § 48-122(2),
concerning injuries resulting in death, provide that the weekly
wages shall be computed upon the basis of a workweek of a
minimum of 40 hours if the rate of wages was fixed by the
hour. We give statutory language its plain and ordinary mean-
ing.15 Thus, when an employee paid by the hour suffers a work-
related injury that results in permanent disability or death, the
employee’s average weekly wage is calculated by multiplying
the rate of wages by a 40-hour workweek rather than by aver-
aging that employee’s actual wages over the 6 months before
the accident. As this court explained:
As to hourly employees, § 48-121(4) alters the computa-
tion of the average weekly wage under § 48-126 only to
the extent that it requires that a minimum of 40 hours
per week be utilized in making the computation, which
would result in part-time hourly employees with perma-
nent disabilities being treated as though they had worked
a 40-hour workweek.16
Because Becerra was an hourly employee who suffered
a permanent disability, his average weekly wage must be
13 Mueller v. Lincoln Public Schools, supra note 3.
14 § 48-126 (emphasis supplied).
15 Rosberg v. Vap, 284 Neb. 104, 815 N.W.2d 867 (2012).
16 Ramsey v. State, 259 Neb. 176, 182, 609 N.W.2d 18, 22 (2000).

BECERRA v. UNITED PARCEL SERVICE 	421
Cite as 284 Neb. 414
calculated based upon a 40-hour workweek under § 48-121(4).
We conclude that the compensation court correctly calculated
Becerra’s average weekly wage based on a 40-hour workweek,
or $504 for 40 hours at $12.60 per hour.
Vocational Rehabilitation.
The dispute in this case centers on the appropriate calcula-
tion of an employee’s average weekly wage for the purpose
of determining the lowest vocational rehabilitation priority
that will result in gainful employment. Becerra testified that
UPS had not offered him any position, and counsel for UPS
offered to stipulate that UPS had not offered Becerra a job.
Thus, as the parties acknowledge, the only possible priorities
for a vocational rehabilitation plan are “[a] job with a new
employer” or “[a] period of formal training which is designed
to lead to employment in another career field.”17 The voca-
tional rehabilitation counselor testified that his recommenda-
tion as to the vocational rehabilitation priority depended upon
a determination of the average weekly wage. If the wage was
determined to be $504 a week, the plan would be for formal
training, but if the average weekly wage was determined
to be $217.86, the plan would be for job placement with a
new employer.
UPS asserts that the average weekly wage of $217.86 under
§ 48-126 should be used because it is based on the aver-
age hours Becerra worked as a part-time employee. On the
other hand, Becerra contends that the vocational rehabilita-
tion plan should use the permanent disability rate of $504,
which is based on a minimum of a 40-hour workweek under
§ 48-121(4).
[13,14] 	As 	a 	general 	rule, 	the 	Nebraska 	Workers’
Compensation Act should be construed to accomplish its benef-
icent purposes.18 A primary purpose of the act is “restoration of
the injured employee to gainful employment.”19 An injured
employee is entitled to vocational rehabilitation services “as
17 § 48-162.01(3).
18 See Hofferber v. Hastings Utilities, 282 Neb. 215, 803 N.W.2d 1 (2011).
19 § 48-162.01(1).

422 	284 NEBRASKA REPORTS
may be reasonably necessary to restore him or her to suitable
employment” when the employee “is unable to perform suit-
able work for which he or she has previous training or experi-
ence” as a result of the injury.20
Section 48-162.01(3) contains priorities for use in develop-
ing a vocational rehabilitation plan, and no higher priority may
be selected unless all lower priorities have been determined
to be unlikely to result in suitable employment for the injured
employee. Because the stipulation eliminated three lower statu-
tory priorities, only two priorities remained: a job with a new
employer—the lower of the two priorities—or a period of
formal training designed to lead to employment in another
career field. In this case, we are concerned with determining
which average weekly wage will best restore Becerra to gain-
ful employment.
[15] This court previously considered what was meant by the
terms “restore,” “suitable employment,” and “gainful employ-
ment” as used in § 48-162.01(1) and (3). In Yager v. Bellco
Midwest,21 an employee earned $220 per week and his hourly
wage had increased to $5.85 at the time of injury. At the time
of rehearing, the employee worked elsewhere, earning $3.35
per hour and working 31 hours per week. The employer argued
that because the employee had obtained a minimum-wage job
with a different employer, the employee was not entitled to
vocational rehabilitation. We disagreed, stating:
It is inappropriate to hold, from the mere fact that the
injured worker has accepted a job resulting in a $104
weekly wage, that, by that act alone, he has foreclosed
himself from some training that would enable him to
return to the approximate level of the salary he was earn-
ing when he was injured.22
We accordingly held that “accepting a job paying minimum
wage does not automatically ‘restore’ a claimant to ‘suitable’
or ‘gainful’ employment pursuant to § 48-162.01, where the
claimant’s previous employment was at a significantly higher
20 § 48-162.01(3).
21 Yager v. Bellco Midwest, 236 Neb. 888, 464 N.W.2d 335 (1991).
22 Id. at 897, 464 N.W.2d at 341.

BECERRA v. UNITED PARCEL SERVICE 	423
Cite as 284 Neb. 414
wage.”23 We observed that the statutory goal is to return the
worker to comparable employment.24
[16] In certain situations, an employee’s actual earnings
may not be a predictable measure of future earning capacity.
We are mindful that Becerra was working only part time at
UPS and that part-time employment with a different employer
which paid an average weekly wage of $217.86 would argu-
ably restore him to comparable employment. But the goal of
any average income test is to produce an honest approximation
of the claimant’s probable future earning capacity.25 As a trea-
tise explains:
[W]hen a high school or college student works on a full-
time job during summer vacation, since he or she presum-
ably expects to be a full-time worker eventually it is logi-
cal to calculate the earnings on a full-time basis. By the
same token, for temporary benefits there is no reason to
go beyond the part-time earnings, since they more accu-
rately reflect actual loss during the period covered by the
temporary disability.26
Here, Becerra was working part time while attending school,
but there was no barrier to his working 40 hours per week at
the time of trial and there is no indication that he wished to
remain a part-time employee in the future.
Returning Becerra to employment paying an average weekly
wage of $217.86 would not restore him to comparable employ-
ment. Becerra is not prevented from working 40 hours per
week, but a 40-hour workweek yielding an average weekly
wage of $217.86 would mean that Becerra would need to be
placed in a job paying only $5.45 an hour—less than minimum
wage and far less than the $12.60 hourly wage he was earn-
ing at UPS. As in Yager v. Bellco Midwest,27 we determine
that such employment would not restore an injured worker to
23 Id. at 896, 464 N.W.2d at 340.
24 See id.
25 Mueller v. Lincoln Public Schools, supra note 3.
26 5 Arthur Larson & Lex K. Larson, Larson’s Workers’ Compensation Law
§ 93.02[2][d] at 93-38 (2011).
27 Yager v. Bellco Midwest, supra note 21.

424 	284 NEBRASKA REPORTS
suitable employment. We conclude that the compensation court
did not err in finding Becerra was entitled to a vocational reha-
bilitation plan consisting of formal training.
CONCLUSION
Because Becerra was a part-time hourly employee who suf-
fered a permanent impairment, the compensation court properly
calculated his average weekly wage for vocational rehabilita-
tion purposes under § 48-121(4). We agree with the compensa-
tion court that seeking to place Becerra in employment where
he would earn wages similar to those based upon the calcula-
tion used for permanent disability purposes would best achieve
the goal of restoring him to suitable employment. Accordingly,
we affirm the court’s award of vocational rehabilitation con-
sisting of formal training.
affirMed.