Moyera v. Quality Pork Internat.

MOYERA v. QUALITY PORK INTERNAT. 	963
Cite as 284 Neb. 963
a separate element from the element requiring that the visual
depiction in the pornography be that of a child.23 Reinpold,
however, did not object to jury instruction No. 3 at the time
of trial. Failure to object to a jury instruction after it has been
submitted to counsel for review precludes raising an objec-
tion on appeal absent plain error indicative of a probable
miscarriage of justice.24 Thus, we need not address this issue
further on appeal. Accordingly, Reinpold’s convictions should
be upheld.
CONCLUSION
The decision of the district court is affirmed.
A ffirmed.
23 Brief for appellant at 40. See § 28-1463.02(1).
24 State v. Mowell, 267 Neb. 83, 672 N.W.2d 389 (2003).
ricArdo moyerA, Also known As dAvid
Gutierrez, Appellee, v. Q uAlity pork
internAtionAl, AppellAnt.
825 N.W.2d 409
Filed January 4, 2013. 	No. S-12-208.
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. ____: ____. On appellate review of a workers’ compensation award, the trial
judge’s factual findings have the effect of a jury verdict, and an appellate court
will not disturb those findings unless they are clearly wrong.
3. ____: ____. An appellate court independently reviews questions of law decided
by a lower court.
4. Statutes. Statutory interpretation presents a question of law.
5. Workers’ Compensation: Statutes: Appeal and Error. The Nebraska Workers’
Compensation Act provides benefits for employees who are injured on the job,
and an appellate court broadly construes the act to accomplish this benefi-
cent purpose.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:41 AM CST

964 	284 NEBRASKA REPORTS
6. Statutes: Appeal and Error. Absent a statutory indication to the contrary, an
appellate court gives words in a statute their ordinary meaning.
7. Statutes: Legislature: Intent: Appeal and Error. An appellate court will not
look beyond a statute to determine the legislative intent when the words are plain,
direct, or unambiguous.
8. Workers’ Compensation: Contracts. The Nebraska Workers’ Compensation
Act applies to undocumented employees under a contract of hire with a covered
employer in this state.
9. Workers’ Compensation. Under Neb. Rev. Stat. § 48-162.01(3) (Reissue 2010),
the Workers’ Compensation Court cannot order vocational retraining without
determining that a worker’s postinjury physical restrictions and vocational
impediments prevent the worker from complying with all of the statute’s lower
work priorities.
10. ____. An employee’s illegal residence or work status does not bar an award of
indemnity for permanent total loss of earning capacity.
11. 	Workers’ Compensation: Proximate Cause. Whether an employee’s scheduled
member loss has caused a whole body impairment is properly resolved under
a proximate cause inquiry at the point of the employee’s maximum medical
improvement, when the employee’s permanent impairment is assessed.
12. Proximate Cause: Words and Phrases. A proximate cause is a cause that pro-
duces a result in a natural and continuous sequence and without which the result
would not have occurred.
13. Workers’ Compensation: Proximate Cause. If, by the point of maximum
medical improvement, an employee has developed a whole body impairment
in addition to a scheduled member injury, the question is whether the work-
related injury proximately caused the whole body impairment. If both injuries
arose from the same work-related injury, because the scheduled member injury
resulted in the whole body impairment in a natural and continuous sequence
of events and the whole body impairment would not have occurred but for the
work-related injury, then the claimant is entitled to disability benefits for the
whole body impairment.
14. Workers’ Compensation. Whether an employee’s compensable scheduled mem-
ber injury has resulted in a whole body impairment and loss of earning power is
a question of fact.
15. Workers’ Compensation: Expert Witnesses: Presumptions. The opinion of a
court-appointed vocational rehabilitation expert regarding loss of earning power
has a rebuttable presumption of validity.
Appeal from the Workers’ Compensation Court. Affirmed.
Joseph W. Grant, of Hotz, Weaver, Flood, Breitkreutz &
Grant, for appellant.
Michael P. Dowd, of Dowd, Howard & Corrigan, L.L.C., for
appellee.

MOYERA v. QUALITY PORK INTERNAT. 	965
Cite as 284 Neb. 963
H eAvicAn, c.J., wriGHt, connolly, stepHAn, mccormAck,
miller-lermAn, and cAssel, JJ.
connolly, J.
I. SUMMARY
In this workers’ compensation case, the primary issue is
whether the appellee, Ricardo Moyera, an illegal alien, is
entitled to benefits for permanent total loss of earning power.
The trial judge awarded these benefits, and the review panel
affirmed. We conclude that because the Nebraska Workers’
Compensation Act (Act)1 applies to illegal aliens working for
a covered employer in this state, these employees are entitled
to permanent total disability benefits (PTD benefits) for work-
related injuries. We affirm.
II. BACKGROUND
The parties stipulated that Moyera was injured in an acci-
dent arising out of and in the course of his employment with
Quality Pork International (QPI). Moyera is from Mexico and
cannot speak English. He is not a legal resident. He started
working for QPI in March 2007. His other work history con-
sisted of working as a laborer on a roofing crew and working
with his father in Mexico as a crop fertilizer. He purchased
papers to obtain work at QPI, which was the first time that he
used the name “David Gutierrez.”
In August 2008, Moyera’s right foot was run over by a fork-
lift. He was age 29. The forklift broke several bones across the
top of his foot. QPI placed him in a light-duty janitorial posi-
tion, cleaning the cafeteria, which allowed him to elevate his
foot above his waist whenever it swelled. A personnel officer
testified that she knew of no other regularly performed posi-
tion in the plant that would allow an employee to elevate his
feet like this; most of the jobs were for production, and QPI
expected employees to meet a quota and work at a required
pace. Moyera performed the light-duty work until May 2010,
when QPI discharged him.
1 See Neb. Rev. Stat. §§ 48-101 to 48-1,117 (Reissue 2010).

966 	284 NEBRASKA REPORTS
After the accident, QPI had directed Moyera to see Dr.
Alan Jensen. The initial x rays did not show fractures. But
an MRI and bone scan later revealed multiple bone fractures.
Jensen and other physicians diagnosed Moyera with complex
regional pain syndrome to the right foot, which syndrome
is also called reflex sympathetic dystrophy and is a type
of nerve disorder. Nerve blocks failed to relieve Moyera’s
pain, which required him to take narcotic pain medications.
The pain resulted in a moderate gait derangement, which
caused him pain in his hips and lower back. He walked with
a crutch, and then a cane. No surgical treatment of the foot
was indicated.
On May 18, 2010, Jensen responded to a questionnaire
from Moyera’s attorney that Moyera’s injury, and its result-
ing nerve disorder and gait derangement, had resulted in a
permanent 10-percent whole body impairment. He recom-
mended a functional capacity evaluation. About this same
time, QPI’s insurance carrier informed QPI that on May 21,
it would terminate payments for Moyera’s temporary partial
disability benefits and start paying permanent partial disabil-
ity benefits.
After QPI learned this information, its personnel manager
audited QPI’s employment files and determined that Moyera
did not have proper immigration documents. QPI discharged
Moyera on May 28, 2010, after he could not produce proper
documentation to show that he could legally work in the
United States. The personnel manager denied that the immi-
gration audit was related to learning that its insurance carrier
would start paying Moyera permanent disability benefits; she
stated that QPI also discharged other employees for lack of
documentation. She claimed that Moyera’s work restrictions
were consistent with the work that he was performing (clean-
ing the cafeteria tables) when QPI discharged him and that if
he had produced the proper documents, he would have been
retained in that position.
But in response to the judge’s questions, the personnel
manager admitted that the cafeteria cleaning position had only
existed as a temporary position for employees recovering from

MOYERA v. QUALITY PORK INTERNAT. 	967
Cite as 284 Neb. 963
an injury. And she admitted that the night shift janitor who
was currently cleaning the cafeteria performed other janito-
rial duties.
In July 2010, a physical therapist performed a functional
capacity evaluation of Moyera. The test results put Moyera
in the sedentary work category, with a 10-pound maximum
lift limit. The therapist noted that Moyera used a cane and
walked with a limp. On August 6, Jensen opined that Moyera
had reached his maximum medical improvement as of that
date. He concluded that Moyera had sustained a permanent
20-percent whole body impairment, which restricted him to
sedentary work.
In 	October 	2010, 	a 	rehabilitation 	consultant, 	Karen
Stricklett, performed a loss of earning capacity analysis for
Moyera. She concluded that Moyera did not possess trans-
ferable skills that would qualify him for sedentary jobs in
the Omaha labor market. Because of his permanent restric-
tions and his inability to speak English, she concluded that
he was not competitively employable and had experienced a
100-percent loss of earning capacity.
QPI then produced counteropinions from a different physi-
cal therapist and physician. Its physical therapist performed
another 	functional 	capacity 	evaluation. 	He 	believed 	that
Moyera could stand for 30 to 40 minutes before needing to
sit and that he could stand or walk for 4 to 5 hours in an
8-hour day. He stated that Moyera could perform work in the
medium physical demand category. QPI’s physician concluded
that while Moyera still had pain in his foot, it was ongoing
pain from his healed fractures, and that he no longer had any
symptoms associated with the nerve disorder. She concluded
that Moyera had a 3-percent impairment to his right foot and
that his gait derangement should not be considered in combina-
tion with more specific impairment ratings for making a whole
body impairment determination.
After Stricklett received these opinions, she issued a sup-
plemental analysis of Moyera’s loss of earning capacity. She
stated in the report that the personnel manager had told her
that Moyera could perform a meat-trimming job that provided

968 	284 NEBRASKA REPORTS
flexibility to stand or sit. But the new information did not
change her opinion that Moyera would need to learn to com-
municate in English before he would qualify for jobs that
would be physically appropriate for his physical impairment
and not require prolonged standing or walking.
At his trial in March 2011, Moyera reported that because
his foot would swell, he could no longer walk very far or for
very long. He stated that if he supports himself on his foot for
more than 15 minutes, he still feels strong pain traveling from
the bottom of his foot to his back. He described the pain as a
“stabbing” or “kicking” pain in his lumbar area and stated that
it felt as if someone were pulling on his leg. He has to wear
a larger shoe equipped with a plastic bottom on his right foot,
and he uses a cane to walk. When he sits, the pain is limited to
his foot, but he still has to elevate it about every 15 minutes.
He continues to take pain medication.
On cross-examination, he admitted that “David Gutierrez”
was not his real name and that he was not a legal resident.
When he was asked whether he had plans to become a legal
resident, he responded, through an interpreter, “Right now I’m
not working, and if I could, I will do it.”
1. triAl JudGe’s AwArd
The trial judge relied on Jensen’s opinion of Moyera’s
physical impairments. And he relied on Stricklett’s opinion
of Moyera’s employability. The judge found that Moyera had
sustained a permanent total loss of earning power. He awarded
Moyera future medical care for treatment of his injury and
secondary gait disturbance. He rejected QPI’s argument that
Moyera was not entitled to benefits for loss of earning capacity
because of his illegal residency status. The judge noted that in
the Act, the Legislature had excluded certain domestic servants
and agricultural employees from coverage and could have
also excluded illegal aliens if that had been its intent. Instead,
the judge noted that the definition of an employee includes
“aliens” and does not distinguish between legal and illegal
aliens. He awarded Moyera indemnity for permanent total loss
of earning power.

MOYERA v. QUALITY PORK INTERNAT. 	969
Cite as 284 Neb. 963
2. review pAnel’s JudGment
QPI appealed to the review panel. The panel stated that there
are multiple cases in other jurisdictions to support either party’s
position, but that it was not necessary to choose between those
cases. It concluded that in Visoso v. Cargill Meat Solutions,2
the Nebraska Court of Appeals had already determined that
an alien, whether legal or illegal, is covered by the Act and
entitled to disability benefits. The panel rejected QPI’s argu-
ment that the trial judge erred in finding that Moyera sustained
a whole body impairment because an altered gait is not suf-
ficient to establish such impairment. The panel stated that the
evidence showed Moyera’s altered gait caused him to have
strong pain in his lower back and pain in his hips. It affirmed
the award.
III. ASSIGNMENTS OF ERROR
QPI assigns, condensed and reordered, that the review panel
erred in affirming the award for the following reasons:
(1) The trial judge erred as a matter of law in award-
ing Moyera benefits for permanent loss of earning capacity
when he is an illegal alien who had no plans to return to his
native country and had taken no action to become a legal resi-
dent; and
(2) no competent evidence existed to support the trial judge’s
finding that Moyera had sustained a whole body impairment
instead of an injury to a scheduled member.
IV. 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 pro-
cured by fraud; (3) there is not sufficient competent evidence
in the record to warrant the making of the order, judgment, or
2 Visoso v. Cargill Meat Solutions, 18 Neb. App. 202, 778 N.W.2d 504
(2009).

970 	284 NEBRASKA REPORTS
award; or (4) the findings of fact by the compensation court do
not support the order or award.3
[2-4] On appellate review of a workers’ compensation
award, the trial judge’s factual findings have the effect of a
jury verdict, and we will not disturb those findings unless they
are clearly wrong.4 But we independently review questions of
law decided by a lower court.5 Statutory interpretation presents
a question of law.6
V. ANALYSIS
1. disAbility benefits A re AvAilAble
to undocumented employees
QPI contends that Moyera is not entitled to disability ben-
efits because he is an illegal alien. It relies on Ortiz v. Cement
Products,7 in which we held that the claimant, who was an ille-
gal alien, was not entitled to vocational rehabilitation benefits.
QPI recognizes that in Visoso,8 the Court of Appeals held that
aliens working illegally in the United States are covered by the
Act and are entitled to its benefits. And it does not dispute that
undocumented employees are entitled to medical payments and
temporary total disability benefits (TTD benefits), the award
of which was upheld in Visoso. But it contends that temporary
disability benefits are different from permanent disability ben-
efits because temporary benefits are limited to an employee’s
healing period. In contrast, QPI contends that benefits for per-
manent loss of earning power should be barred—the same as
vocational rehabilitation benefits—because they depend upon
an employee’s ability to obtain lawful employment in the
United States.
3 Becerra v. United Parcel Service, ante p. 414, 822 N.W.2d 327 (2012).
4 See Bassinger v. Nebraska Heart Hosp., 282 Neb. 835, 806 N.W.2d 395
(2011).
5 Spitz v. T.O. Haas Tire Co., 283 Neb. 811, 815 N.W.2d 524 (2012).
6 Bassinger, supra note 4.
7 Ortiz v. Cement Products, 270 Neb. 787, 708 N.W.2d 610 (2005).
8 Visoso, supra note 2.

MOYERA v. QUALITY PORK INTERNAT. 	971
Cite as 284 Neb. 963
(a) The Act Covers Illegal Aliens
Because we have not decided the coverage issue,9 we first
clarify that we agree with the Court of Appeals that the Act
covers illegal aliens.
[5-7] The Act provides benefits for employees who are
injured on the job, and we broadly construe the Act to accom-
plish this beneficent purpose.10 Absent a statutory indication
to the contrary, we give words in a statute their ordinary
meaning.11 And we will not look beyond a statute to deter-
mine the legislative intent when the words are plain, direct,
or unambiguous.12
Section 48-115(2) defines employees, or workers, who are
covered by the Act. It includes “[e]very person in the service
of an employer who is engaged in any trade, occupation, busi-
ness, or profession as described in section 48-106 under any
contract of hire, expressed or implied, oral or written, includ-
ing aliens and also including minors.” (Emphasis supplied.)
Section 48-106(1) provides that the Act applies to the follow-
ing employers: the State, state agencies, and “every resident
employer in this state and nonresident employer performing
work in this state who employs one or more employees in
the regular trade, business, profession, or vocation of such
employer.” Section 48-106(2) excludes specified employees in
some occupations from coverage under the Act, but it does not
exclude illegal aliens.
[8] As the Court of Appeals concluded, the word “alien”
ordinarily means a foreign-born resident who has not been
naturalized in the host country and is still a subject or citizen
of the foreign country.13 So we agree that the ordinary meaning
of “aliens” is broad enough to include both legal and illegal
9 See Ortiz, supra note 7.
10 See Bassinger, supra note 4.
11 In re Interest of Erick M., ante p. 340, 820 N.W.2d 639 (2012).
12 Id.
13 See, Visoso, supra note 2, quoting Black’s Law Dictionary (9th ed. 2009);
Webster’s Encyclopedic Unabridged Dictionary of the English Language
37 (1994).

972 	284 NEBRASKA REPORTS
aliens, with or without work authorization.14 Moreover, “[i]f it
was the intent of the Nebraska Legislature to exclude illegal
aliens from the definition of covered employees or work-
ers, it could have easily included a modifier doing so in the
statute, but the Legislature did not, and has not, done so.”15
Additionally, we note the Legislature has explicitly excluded
some aliens from eligibility for unemployment benefits.16 This
exclusion illustrates that the Legislature would have excluded
illegal aliens from the Act’s coverage if that had been its intent.
We conclude that under the ordinary meaning of the terms
used, the Act applies to undocumented employees under a con-
tract of hire with a covered employer in this state.
(b) Ortiz Does Not Preclude an
Award of PTD Benefits
As noted, QPI relies on our decision in Ortiz17 to argue
that Moyera is not entitled to benefits for permanent total
loss of earning capacity. In Ortiz, we assumed without decid-
ing that the Act covered illegal aliens but affirmed the review
panel’s determination that the undocumented employee was
not entitled to vocational rehabilitation benefits. Like Moyera,
the injured employee in Ortiz was an illegal alien from Mexico
who could not speak English. He sought disability benefits,
medical payments, and vocational rehabilitation benefits.
The trial judge awarded the employee benefits, including
vocational rehabilitation, despite his illegal status. The judge
found that the employer did not have any jobs for the employee
within his physical restrictions and that he was unable to
perform the work required by other employers or that other
employers paid inadequate wages compared to his previous
wages. Although the employee could not be legally employed
in the United States, the judge concluded that he was entitled
to vocational rehabilitation because his limitations would also
14 See id., citing Economy Packing v. Illinois Workers’ Comp., 387 Ill. App.
3d 283, 901 N.E.2d 915, 327 Ill. Dec. 182 (2008).
15 Id. at 209, 778 N.W.2d at 511.
16 See Neb. Rev. Stat. § 48-628(10) (Reissue 2010).
17 Ortiz, supra note 7.

MOYERA v. QUALITY PORK INTERNAT. 	973
Cite as 284 Neb. 963
prevent him from doing work in Mexico for which he had
experience. In this context, the term “vocational rehabilitation”
meant retraining.18 The review panel reversed only that part of
the award granting the employee vocational retraining.
In deciding the availability of vocational retraining, we
stated that under § 48-162.01(3),
an employee is entitled to vocational rehabilitation serv-
ices when he or she is unable to perform suitable work
for which he or she has previous training or experience.
The purpose of vocational rehabilitation under work-
ers’ compensation is to restore an injured employee
to suitable gainful employment. See § 48-162.01(3);
Rodriguez v. Monfort, Inc., 262 Neb. 800, 635 N.W.2d
439 (2001). In order to effectuate this purpose, the
employee must be eligible and willing to return to some
form of employment.
At trial, [the employee] 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 [the employee] vocational rehabilitation serv-
ices in light of his avowed intent to remain an unautho-
rized worker in this country would be contrary to the
statutory purpose of returning [him] to suitable employ-
ment. Therefore, we hold that based upon the facts of this
case, [the employee] is not entitled to vocational rehabili-
tation services.19
QPI argues that Moyera, like the undocumented employee in
Ortiz, had no plans at trial to return to his home country or to
become a legal resident of the United States. Thus, QPI argues
that Moyera has no earning capacity to lose because he has no
legal right to be employed in the United States.
We recognize that an award of PTD benefits and an award
of vocational retraining benefits are closely related. We have
stated 	that 	vocational 	rehabilitation 	benefits 	are 	properly
awarded when an injured employee cannot return to the work
18 See § 48-162.01(3).
19 Ortiz, supra note 7, 270 Neb. at 790-91, 708 N.W.2d at 613.

974 	284 NEBRASKA REPORTS
for which he or she has previous training or experience.20 But
we take this opportunity to clarify why the award of vocational
rehabilitation in Ortiz is distinguishable from the PTD benefits
awarded here.
Under § 48-162.01(3), an award of vocational retraining
depends on whether the employee cannot satisfy the lower
work priorities:
No higher priority may be utilized unless all lower priori-
ties have been determined by the vocational rehabilitation
counselor and a vocational rehabilitation specialist or
judge of the compensation court to be unlikely to result
in suitable employment for the injured employee that is
consistent with the priorities listed in this subsection.
[9] Under § 48-162.01(3), we have held that the Workers’
Compensation Court cannot order vocational retraining without
determining that a worker’s postinjury physical restrictions and
vocational impediments prevent the worker from complying
with all of the statute’s lower work priorities.21 The statutory
work priorities are set out in the following order:
(a) Return to the previous job with the same employer;
(b) Modification of the previous job with the same
employer;
(c) A new job with the same employer;
(d) A job with a new employer; or
(e) A period of formal training which is designed to
lead to employment in another career field.22
So before awarding vocational retraining, a trial judge must
determine that the worker’s postinjury restrictions and voca-
tional impediments preclude all four of the lower work priori-
ties—in order from (a) to (d). If an injured employee is ineli-
gible for the four lower priorities because the employee cannot
be legally placed with the same employer or a new employer,
then a workers’ compensation judge cannot order retraining for
a new career.
20 See, e.g., Becerra, supra note 3.
21 See Stacy v. Great Lakes Agri Mktg., 276 Neb. 236, 753 N.W.2d 785
(2008).
22 § 48-162.01(3).

MOYERA v. QUALITY PORK INTERNAT. 	975
Cite as 284 Neb. 963
In Ortiz, we did not discuss whether the worker’s postinjury
restrictions and vocational impediments alone would have
precluded him from being placed with his former employer
or a new employer (as required by the lower work priorities),
and we do not comment on the availability of retraining ben-
efits in that circumstance. We recognize that our emphasis in
Ortiz on the worker’s intent to stay in the United States could
be read to mean that an undocumented employee is entitled
to receive vocational retraining only if the employee plans to
return to his home country. But under § 48-162.01(3), when
an undocumented worker could have been placed with an
employer but for his illegal status, it is irrelevant whether
the employee plans to stay in the United States or return to
his home country. In either circumstance—staying or leav-
ing—his illegal work status precludes him from satisfying the
lower work priorities. So the employee would be ineligible
for retraining.
Thus, the statutory work priorities under § 48-162.01(3)
constrained our holding in Ortiz. But unlike vocational retrain-
ing benefits, there are no prioritized goals that must be satisfied
before a court can award indemnity for an employee’s total loss
of earning capacity.
In characterizing disability benefits, we have stated that
“‘[t]emporary’ and ‘permanent’ refer to the duration of dis-
ability, while ‘total’ and ‘partial’ refer to the degree or extent
of the diminished employability or loss of earning capacity.”23
The primary distinction between temporary total disability and
permanent total disability is that the latter rests on a determina-
tion that the employee has reached the point when his or her
medical condition will not further improve.24
But both before and after an employee’s maximum medi-
cal improvement, an award of total disability benefits depends
on a determination that the employee cannot perform the
work for which he or she was trained or accustomed to per-
forming or cannot perform other work which a person of the
23 Rodriguez v. Hirschbach Motor Lines, 270 Neb. 757, 761, 707 N.W.2d
232, 237 (2005).
24 See id.

976 	284 NEBRASKA REPORTS
same mentality and attainments could perform.25 And both
before and after an employee’s maximum medical improve-
ment, an employee’s disability as a basis for compensation
under § 48-121(1) and (2) is determined by the employee’s
diminution of employability or impairment of earning power
or earning capacity.26 These determinations do not depend on
a finding that the employee cannot be placed in a job with the
same employer or in a job with a different employer.
Instead, in awarding PTD benefits, a compensation court
must generally determine only two issues: (1) that the employee
can no longer earn wages doing the same kind of work for
which he or she was trained or accustomed to performing and
(2) that the employee lacks the skills needed to perform other
work that is within the employee’s physical limitations and
for which a stable market exists.27 And as this case illustrates,
vocational specialists can assess an employee’s loss of earning
power by determining the type of work the employee would
have been qualified to do before the injury and eliminating
those occupations that are incompatible with the employee’s
postinjury restrictions. The specialist can then use market
surveys to determine the employee’s loss of access to jobs in
a labor market based on the employee’s postinjury physical
restrictions and vocational impediments.
As stated, in Visoso,28 the Court of Appeals affirmed an
award of TTD benefits, which are awarded for periods that the
worker is unable to work before reaching his or her maximum
medical improvement. But because a finding of total disability
depends on the same inquiry whether the disability is tempo-
rary or permanent,29 the difference between TTD benefits and
PTD benefits is not a valid reason for distinguishing Visoso.
Moreover, its conclusion is consistent with what many other
state courts have held. Among the numerous state courts that
25 See Frauendorfer v. Lindsay Mfg. Co., 263 Neb. 237, 639 N.W.2d 125
(2002).
26 Id.
27 See, id.; Roan Eagle v. State, 237 Neb. 961, 468 N.W.2d 382 (1991).
28 Visoso, supra note 2.
29 See Frauendorfer, supra note 25.

MOYERA v. QUALITY PORK INTERNAT. 	977
Cite as 284 Neb. 963
have held that undocumented employees are covered by their
state’s workers’ compensation statutes and entitled to disabil-
ity benefits,30 some have specifically affirmed an award of
PTD benefits.31
These courts have concluded that even if undocumented
employees cannot legally work in the United States, they could
have worked elsewhere but for their work-related injury.32 And
they have reasoned that excluding undocumented workers from
receiving disability benefits creates a financial incentive for
employers to continue hiring them, in contravention of federal
law.33 Furthermore, allowing an employer to escape liability
for the work-related injuries that its undocumented employ-
ees sustain gives the employer an unfair advantage relative to
competitors who follow the law.34
In addition to these concerns, many state courts have
held that illegal aliens can sue in tort for personal injuries
that they sustained while working for an employer in the
United States.35 In contrast, we have previously explained that
30 See, e.g., Abel Verdon Const. v. Rivera, 348 S.W.3d 749 (Ky. 2011);
Design Kitchen v. Lagos, 388 Md. 718, 882 A.2d 817 (2005); Mendoza v.
Monmouth Recycling Corp., 288 N.J. Super. 240, 672 A.2d 221 (1996);
Rajeh v. Steel City Corp., 157 Ohio App. 3d 722, 813 N.E.2d 697 (2004);
Cherokee Industries, Inc. v. Alvarez, 84 P.3d 798 (Okla. Civ. App. 2003);
Reinforced Earth Co. v. W.C.A.B., 749 A.2d 1036 (Pa. Commw. 2000);
Dominquez v. Gottschalk Bros. Roofing, No. 105985, 2012 WL 2715618
(Kan. App. June 29, 2012) (unpublished disposition listed in table of
“Decisions Without Published Opinions” at 279 P.3d 147 (Kan. App.
2012)). See, also, 3 Arthur Larson & Lex K. Larson, Larson’s Workers’
Compensation Law § 66.03 (2011); Jessica A. Moland, Illegal Aliens and
Worker’s Compensation Issues, 53 Res Gestae 19 (2010).
31 See, HDV Const. Systems, Inc. v. Aragon, 66 So. 3d 331 (Fla. App. 2011);
Economy Packing, supra note 14; Ruiz v. Belk Masonry Co., Inc., 148
N.C. App. 675, 559 S.E.2d 249 (2002).
32 See, e.g., Economy Packing, supra note 14; Mendoza, supra note 30;
Rajeh, supra note 30.
33 See, e.g., id.
34 See HDV Const. Systems, Inc., supra note 31.
35 See, Rosa v. Partners in Progress, Inc., 152 N.H. 6, 868 A.2d 994 (2005);
Mendoza, supra note 30; Commercial Standard Fire and Marine Co. v.
Galindo, 484 S.W.2d 635 (Tex. Civ. App. 1972).

978 	284 NEBRASKA REPORTS
workers’ compensation laws reflect a compromise between
employers and employees. Under the Act, employees give
up the complete compensation that they might recover under
tort law in exchange for no-fault benefits that they quickly
receive for most economic losses from work-related inju-
ries.36 So it makes little sense—and defeats the Act’s incen-
tives—to conclude that undocumented employees can fully
recover damages in tort but cannot recover workers’ compen-
sation benefits.37
[10] Finally, courts have also raised a significant policy
concern. They have concluded that workers’ compensation
laws reflect a policy choice that employers bear the costs of
their employees’ work-related injuries because they are in the
best position to avoid the risk of loss by improving workplace
safety.38 We agree that public policy weighs against allowing
employers to avoid the costs of their workplace hazards. And
we must reasonably or liberally construe a statute to achieve
the statute’s purpose, rather than construing it in a manner
that defeats the statutory purpose.39 Most important, interpret-
ing the Act to preclude PTD benefits here would be plainly
inconsistent with the Act’s coverage of illegal aliens. We hold
that an employee’s illegal residence or work status does not
bar an award of indemnity for permanent total loss of earn-
ing capacity.
2. evidence supported AwArd
of ptd benefits
QPI contends that Moyera failed to show a whole body
impairment. It argues that although Moyera’s gait derangement
was a symptom of his injury, his injury was limited to his right
foot and leg.
We have stated that a claimant is not entitled to an award
for loss of earning power when the injury is limited to a
36 Bassinger, supra note 4.
37 See Mendoza, supra note 30.
38 See, HDV Const. Systems, Inc., supra note 31; Mendoza, supra note 30;
Ruiz, supra note 31.
39 Blakely v. Lancaster County, ante p. 659, 825 N.W.2d 149 (2012).

MOYERA v. QUALITY PORK INTERNAT. 	979
Cite as 284 Neb. 963
specific body member, unless some unusual or extraordinary
condition as to other members or parts of the body develops
as the result of the injury.40 In contrast, we have stated that
the test for determining whether a disability is to a sched-
uled member or to the body as a whole is the location of the
residual impairment, not the situs of the injury.41 And we have
held that “[w]hen a whole body injury is the result of a sched-
uled member injury, the member injury should be considered
in the assessment of the whole body impairment.”42 Thus, we
have recognized that an injury to a scheduled member can
cause a whole body impairment, which entitles the employee
to indemnity for loss of earning power.43 In that circumstance,
the work-related injury has caused both the scheduled member
injury and the whole body impairment.44
Moreover, 	we 	have 	recognized 	that 	scheduled 	member
injury can result in a compensable whole body impairment
in a case with similar facts. In Madlock v. Square D Co.,45
the parties disputed whether the employee’s foot injury had
resulted in a back injury. The employee claimed that her gait
was altered because of the foot injury, resulting in a low-
back condition. In determining the employee’s loss of earn-
ing capacity, the trial judge considered the impact of her foot
injury on her back, a whole body impairment. But the judge
also awarded her a separate recovery for her scheduled mem-
ber loss because the evidence showed that the employee’s foot
injury caused her pain and restrictions distinct from her back
impairment. The review panel reversed the separate award for
the scheduled member injury, and we affirmed. We concluded
that the foot injury had caused the back injury and had already
40 Risor v. Nebraska Boiler, 277 Neb. 679, 765 N.W.2d 170 (2009).
41 Stacy, supra note 21.
42 See Bishop v. Speciality Fabricating Co., 277 Neb. 171, 178, 760 N.W.2d
352, 357-58 (2009).
43 See, Bishop, supra note 42; Stacy, supra note 21.
44 See Bishop, supra note 42.
45 Madlock v. Square D Co., 269 Neb. 675, 695 N.W.2d 412 (2005).

980 	284 NEBRASKA REPORTS
been considered in the award of disability benefits for loss of
earning capacity.
It is true that in Madlock, the parties did not dispute whether
the back injury was an unusual or extraordinary condition
resulting from the foot injury. But the more important point is
that we held both the whole body impairment and the sched-
uled member injury arose from the same accident:
[T]he whole body injury cannot be separated from the
scheduled member injury. Both arose from the same
accident. If [the employee] had not injured her foot, she
would not have sustained a back injury that was compen-
sable under Nebraska’s workers’ compensation statutes.
Under these circumstances, the trial court was required
to, and did, consider the scheduled member injury in
awarding benefits because [the employee’s] loss of earn-
ing capacity could not be fairly and accurately assessed
without such consideration.46
[11] We recognize that a tension exists between our cases
permitting benefits for a whole body impairment to rest on
whether a scheduled member injury has caused the whole
body impairment and cases denying benefits for a whole body
impairment unless a scheduled member injury resulted in some
unusual or extraordinary condition in other parts of the body.
But the modern trend in these cases has been for courts to
hold that employees are not limited to benefits for a scheduled
member injury when the effects of that injury have extended
to other parts of the employee’s body in a manner that impairs
the employee’s ability to work.47 So we now clarify that
whether an employee’s scheduled member loss has caused a
whole body impairment is properly resolved under a proximate
cause inquiry at the point of the employee’s maximum medi-
cal improvement, when the employee’s permanent impairment
is assessed.
[12,13] A proximate cause is a cause that produces a result
in a natural and continuous sequence and without which the
46 Id. at 682, 695 N.W.2d at 417-18.
47 See 4 Arthur Larson & Lex K. Larson, Larson’s Workers’ Compensation
Law § 87.02 (2011).

MOYERA v. QUALITY PORK INTERNAT. 	981
Cite as 284 Neb. 963
result would not have occurred.48 If, by the point of maximum
medical improvement, an employee has developed a whole
body impairment in addition to a scheduled member injury,
the question is whether the work-related injury proximately
caused the whole body impairment. If both injuries arose from
the same work-related injury, because the scheduled member
injury resulted in the whole body impairment in a natural and
continuous sequence of events and the whole body impairment
would not have occurred but for the work-related injury, then
the claimant is entitled to disability benefits for the whole
body impairment.49
[14,15] Whether 	an 	employee’s 	compensable 	scheduled
member injury has resulted in a whole body impairment
and loss of earning power is a question of fact.50 And the
opinion of a court-appointed vocational rehabilitation expert
regarding loss of earning power has a rebuttable presumption
of validity.51
As the review panel stated, evidence exists to support the
trial judge’s conclusion that Moyera’s gait derangement had
caused pain in his hips and his lower back. Both Jensen and
a specialist physician opined that Moyera’s disability was
not limited to his foot. In May 2010, Jensen opined that
Moyera’s hip pain resulted from the work-related injury. And
in December 2010, Jensen specifically noted that Moyera had
tenderness and limited range of motion in his lumbar spine.
Moyera testified that he experiences strong low-back pain
traveling up from his foot if he supports himself on his foot
for more than 15 minutes. The trial judge could have obvi-
ously concluded that Moyera’s back pain has contributed to his
inability to stand and walk for more than short periods. And
QPI does not contest the rehabilitation specialist’s employabil-
ity findings. The judge’s finding of total permanent disability
was not clearly wrong.
48 Manchester v. Drivers Mgmt., 278 Neb. 776, 775 N.W.2d 179 (2009).
49 See Bishop, supra note 42.
50 See Ideen v. American Signature Graphics, 257 Neb. 82, 595 N.W.2d 233
(1999).
51 See Money v. Tyrrell Flowers, 275 Neb. 602, 748 N.W.2d 49 (2008).

982 	284 NEBRASKA REPORTS
VI. CONCLUSION
We conclude that the Act covers illegal aliens under a con-
tract of hire with a covered employer in Nebraska. We also
conclude that the Act does not preclude an award of PTD ben-
efits for illegal aliens. Finally, we conclude that the trial judge
was not clearly wrong in finding that Moyera’s injury to his
foot had resulted in pain to his back that interfered with his
ability to perform the work he had previously performed. Thus,
the trial judge’s finding of permanent total disability was not
clearly wrong.
A ffirmed.
stAte of nebrAskA, Appellee, v.
williAm b. pereirA, AppellAnt.
824 N.W.2d 706
Filed January 4, 2013. 	No. S-12-438.
1. Sentences: Appeal and Error. An appellate court will not disturb a sen-
tence imposed within the statutory limits absent an abuse of discretion by the
trial court.
2. Sentences: Words and Phrases. Allocution is an unsworn statement from a
convicted defendant to the sentencing judge in which the defendant can ask for
mercy, explain his or her conduct, apologize for the crime, or say anything else
in an effort to lessen the impending sentence.
3. Verdicts: Sentences. Before a sentence is pronounced, the defendant must be
informed by the court of the verdict and asked whether he or she has anything to
say why judgment should not be passed against him or her.
4. Constitutional Law: Evidence: Sentences. A defendant must be afforded a
forum and the right to question the constitutional propriety of the information
utilized by the sentencing judge, to present countervailing information, and to
test, question, or refute the relevance of information on which the judge may rely
in determining the sentence to be imposed.
5. Sentences. Allocution is an opportunity to address the court, not to speak to
spectators in attendance.
6. ____. The time of imposition of sentence is not a public forum to be used by
either a defendant or his or her attorney for that purpose.
7. Sentences: Waiver: Appeal and Error. Generally, where no objection is made at
a sentencing hearing when a defendant is provided an opportunity to do so, any
claimed error is waived and is not preserved for appellate review.