Mata v. Western Valley Packing

Shanahan, J.,

concurring in part, and in part dissenting.

Although the compensation court’s decision must be reversed and this cause remanded for further proceedings, the compensation panel’s language in its “AWARD” clearly communicates an egregious error which supplies the true reason for reversal and necessity for further consideration of Angelita Mata’s claim for compensation. The compensation court’s unfortunate and undeniable mistake of law is evident from the panel’s expressions and the underlying record.

Angelita Mata’s employment history has been that of heavy manual labor, such as hoeing beet fields, spending many hours winding electrical coils, and moving products in the meatpacking plant where she sustained the disabling injury on which her compensation claim is based. As a result of her injuries, Angelita Mata is unable to stoop, stand for a protracted period, or lift any significant weight.

However, Angelita Mata’s limitations are not just physical. By stipulation, the parties have agreed that Angelita is “functionally illiterate,” even though the majority, strangely enough, has concluded that “the parties dispute the degree of Mata’s proficiency in [the English] language.” Angelita is *593unable to read a newspaper or understand a great deal of spoken English. After the accident at Western Valley Packing, Angelita enrolled in a course for basic English so that she might become “more hireable, more able to find employment.” According to her language instructor, Angelita cannot “do all the basics in the English language,” but she has been “sincere in her efforts” to learn basic English. The language course is comparable to English instruction at the first grade level and utilizes “pictures a lot” and “a lot of visual aid.” During a vocational evaluation, Angelita Mata “ [demonstrated a below average level of general learning ability.”

Dean Ventor, a vocational consultant versed in questions of “employability” for manual labor, reviewed data concerning Angelita, including all medical information, and concluded that Angelita could not return to her work at Western Valley Packing. Ventor then expressed the opinion that some forms of “sedentary unskilled work” were open to a woman of Angelita’s physical limitations, but “[w]hen you throw in [Angelita’s] inability to converse in English, a large percentage of those jobs wouldn’t work.... [TJhere wouldn’t be any jobs that she could do.” Angelita’s unemployability became an established fact “because of [her] problems with English.” When only Angelita’s physically injured condition was considered, she had sustained a 50-percent loss of earning power. However, when Angelita’s language limitation was considered in combination with her physical condition, Angelita sustained an “earning power loss” which was, in Ventor’s words, “over 90 percent, it would be near total.” Consequently, Angelita, viewed from the standpoint of her physical impairment and language limitation, was, according to Ventor, “unemployable.” As further expressed by Ventor, Angelita’s unemployability is underscored by the fact that the “major employer of unskilled sedentary labor” in the vicinity of Angelita’s home will not “hire anyone unless they have an understanding of the English language and can read the instructions that they have on the different machines that they tend as well as they want an ability to give the people instructions on jobs and make sure they understand them.”

With that background entrenched in the evidence, the *594majority ponders, puzzles, and settles into indecision about the meaning of the compensation panel’s conclusion: “In determining the extent of plaintiff’s permanent loss of earning power, the Court has disregarded and excluded the effect thereon, if any, of plaintiff’s educational and English language deficiencies.” When the compensation panel’s somewhat serpentine syntax is uncoiled, the panel actually concluded: Although Angelita Mata has deficiencies in education and English language skill, we, the compensation panel, have elected to pay no attention whatsoever to such deficiencies in deciding the extent of Angelita Mata’s loss of earning power. If the preceding language of the compensation panel was not clear enough concerning the effect of Angelita’s educational and linguistic deficiencies, the panel further spoke through its action in finding that Angelita had a “50 per cent permanent loss of earning power,” the exact percentage of loss resulting from an impairment of physical function only, and then calculating compensation benefits on the basis of the 50-percent loss of earning power. Any shadow of doubt about the panel’s factual conclusion concerning the existence and effect of Angelita Mata’s deficiencies in education and language skill vanishes in light of the panel’s statement: “The plaintiff does not appear to be a fit subject for vocational rehabilitation via formal academic classwork or training.” Therefore, although Angelita Mata’s limitations in education and English language skill disqualified her from rehabilitation which required some form of schooling, the panel chose not to consider the effect of those deficiencies in relation to Angelita Mata’s loss of earning power or unemployability which the panel found was evidentially established.

“An employee who is so injured that he can perform no services other than those which are so limited in quality, dependability, or quantity that a reasonably stable market for them does not exist, may well be classified as totally disabled.” Lee v. Minneapolis Street Railway Co., 230 Minn. 315, 320, 41 N.W.2d 433, 436 (1950).

Also, according to Professor Arthur Larson, “Compensable disability is generally defined as inability, as the result of a work-connected injury, to perform or obtain work suitable to *595claimant’s qualifications and training.” 2 A. Larson, The Law of Workmen’s Compensation § 57.22(a) at 10-129 (1989).

Hence, the test for a worker’s employability after a compensable injury is whether the worker can compete in the open and normal labor market for the worker’s services.

Among factors which must be considered in determining whether a worker is totally disabled are the worker’s mental capability, see Tilghman v. Mills, 169 Neb. 665, 100 N.W.2d 739 (1960), and the worker’s education or lack of education. See, Sherwood v. Gooch Milling & Elevator Co., 235 Neb. 26, 453 N.W.2d 461 (1990); Krijan v. Mainelli Constr. Co., 216 Neb. 186, 342 N.W.2d 662 (1984). See, also, Guyton v. Irving Jensen Co., 373 N.W.2d 101, 103 (Iowa 1985): “Industrial disability means reduced earning capacity. Bodily impairment is merely one factor in gauging industrial disability. Other factors include the worker’s age, intelligence, education, qualifications, experience, and the effect of the injury on the worker’s ability to obtain suitable work.”

Consequently, the composite worker, as a person with a compensable disability, must be considered in relation to the worker’s employability in an established competitive labor market lest there be descent to the view that a worker’s disability is gauged only in terms of mechanical malfunction in a machine, animated appliance, or automaton.

Unfortunately, the compensation court, notwithstanding its explicitly specific finding that Angelita Mata had deficiencies in education and English language skill, elected to pay no attention whatsoever to those deficiencies in Angelita Mata as a composite worker. Ordinarily, this court does not refer to the findings at the “one-judge” or initial hearing in the compensation court, but there is some reassurance garnered from the judge’s expression at the first hearing, namely: “If [one] also takes into account the plaintiff’s language limitations, her earning power loss . . . exceeds 90 per cent. It appears that the plaintiff’s language limitations are real and the Court has little difficulty in determining that the plaintiff’s earning power loss is complete.”

The compensation panel’s conclusion concerning Angelita Mata’s loss of earning power clearly expresses a judicial election *596to pay no attention to the factually established deficiencies in Angelita’s education and language skill. That election is a disregard for Nebraska law pertaining to a worker’s employability and thereby constitutes error as a matter of law. Even if the compensation panel had considered Angelita Mata’s deficiencies in education and language and concluded that her deficiencies had no effect on her employability, such factual conclusion would have been clearly erroneous and would have necessitated a reversal in any event.

Therefore, the compensation court’s decision must be reversed and Angelita Mata’s cause remanded so that the compensation court can and shall consider the effect of Angelita Mata’s deficiencies in education and English language skill in conjunction with her already established “50 per cent permanent loss of earning power.”