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Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
MELTON v. CITY OF HOLDREGE
Cite as 309 Neb. 385
Benjamin Melton, appellant, v.
City of Holdrege, appellee.
___ N.W.2d ___
Filed May 28, 2021. No. S-20-721.
1. Workers’ Compensation: Appeal and Error. A judgment, order, or
award of the 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, the factual findings made by the trial
judge of the Workers’ Compensation Court have the effect of a jury ver-
dict 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. Neb. Rev. Stat. § 48-121(3) (Reissue 2010)
generally provides the manner by which a worker is compensated for the
loss or loss of use of a scheduled member.
5. Damages. As a general rule, a party may not have double recovery for a
single injury.
6. Workers’ Compensation: Attorney Fees: Penalties and Forfeitures:
Time. Neb. Rev. Stat. § 48-125 (Cum. Supp. 2020) authorizes a
50-percent penalty payment for waiting time involving delinquent pay-
ment of compensation and an attorney fee, where there is no reasonable
controversy regarding an employee’s claim for workers’ compensation.
7. Workers’ Compensation: Attorney Fees: Words and Phrases. A “rea-
sonable controversy” exists (1) if there is a question of law previously
unanswered by the Supreme Court, which question must be answered
to determine a right or liability for disposition of a claim under the
Nebraska Workers’ Compensation Act, or (2) if the properly adduced
evidence would support reasonable but opposite conclusions by the
compensation court about an aspect of an employee’s claim, which
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Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
MELTON v. CITY OF HOLDREGE
Cite as 309 Neb. 385
conclusions affect allowance or rejection of an employee’s claim, in
whole or in part.
8. Workers’ Compensation: Words and Phrases. Whether a reasonable
controversy exists under Neb. Rev. Stat. § 48-125 (Cum. Supp. 2020) is
a question of fact.
9. Workers’ Compensation. Whether an injured worker is entitled to
vocational rehabilitation is ordinarily a question of fact to be determined
by the compensation court.
10. ____. A workers’ compensation award cannot be based on mere possibil-
ity or speculation.
Appeal from the Workers’ Compensation Court: Dirk V.
Block, Judge. Affirmed.
Todd D. Bennett, of Rehm, Bennett, Moore & Rehm, P.C.,
L.L.O., for appellant.
David A. Dudley and Micah C. Hawker Boehnke, of Baylor
Evnen, L.L.P., for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Funke, Papik,
and Freudenberg, JJ.
Cassel, J.
I. INTRODUCTION
Benjamin Melton sought workers’ compensation benefits
after an injury resulted in a below-the-knee amputation of his
leg. The trial court awarded compensation for a loss of foot and
a partial loss of leg function. On appeal, Melton challenges the
court’s determination of his loss and its decision to not award
a penalty regarding permanent loss of his foot or vocational
rehabilitation. Because the court’s factual findings were not
clearly wrong and we find no error of law, we affirm.
II. BACKGROUND
1. Injury and Disability Payments
The City of Holdrege (City) employed Melton as a journey
man lineman. In October 2011, Melton sustained a work-
related injury resulting in an amputation of his left leg a few
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Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
MELTON v. CITY OF HOLDREGE
Cite as 309 Neb. 385
inches below the knee. In December, he was fitted for a pros-
thesis, but attaining a good fit was a recurring problem. In
March 2012, Melton returned to his position with the City. He
was able to perform at least some aspects of his job. Melton
did not feel that he could perform his lineman duties without
the prosthesis, having tried to do so. While performing his job
duties, he encountered issues with the use of his prosthesis,
such as shrinking, swelling, sweating, and obtaining a good
fit. In 2014, Melton underwent a “stump revision” surgery that
helped him obtain a better fit with his prosthetic leg, though he
still encountered pain and discomfort.
From the date of the accident until Melton’s return to work,
the City paid 23 weeks of temporary total disability benefits.
Between March 14, 2012, and March 12, 2016, the City paid
temporary partial disability benefits for 833⁄ 7 weeks. In May
2017, Melton provided the City with a record from his physi-
cian stating that he had reached maximum medical improve-
ment (MMI) and the City paid permanent partial disability
benefits based on a 100-percent loss of Melton’s foot and an
additional 5-percent loss to his leg. There is no dispute that the
City paid all medical expenses under the fee schedule and all
temporary disability benefits.
2. Petition and Trial
In May 2017, Melton filed a petition seeking workers’ com-
pensation benefits. He requested temporary and permanent dis-
ability benefits, payment of medical expenses, and vocational
rehabilitation benefits. He also asked for waiting-time penal-
ties, attorney fees, and interest.
Three years later, the workers’ compensation court con-
ducted a trial. The evidence established that in 2018, Melton
secured a new position as a corrosion technician with a dif-
ferent employer. He remained in that employment at the time
of trial. Melton testified that he continues to suffer pain in his
knee, that his knee is weak, and that he does not have much use
of his leg without employing a prosthetic device. He cannot
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Nebraska Supreme Court Advance Sheets
309 Nebraska Reports
MELTON v. CITY OF HOLDREGE
Cite as 309 Neb. 385
stand for long periods of time or bear weight on the left leg
without the prosthetic device. He testified that he would not
even try to perform his job duties without his prosthesis.
The court received conflicting evidence concerning an
impairment rating for Melton. In an April 2017 record, a doctor
determined that Melton’s total combined whole person impair-
ment was 40 percent and the “WP Impairment Converted to
Lower Extremity” was 32 percent. On the other hand, a differ-
ent doctor opined within a reasonable degree of medical cer-
tainty that Melton’s correct impairment rating was a 70-percent
permanent partial impairment of his left lower extremity.
The evidence regarding MMI differed, also. A February
2012 medical record stated, “Plan for MMI at one year post
injury.” In an April 2017 record, a doctor stated that Melton
had “reached a medically stable point in time.”
3. Award
The court awarded Melton future medical care and perma-
nent disability benefits. It rejected Melton’s argument that he
was entitled to an award for the loss of each toe on his left
foot in addition to the loss of that foot. Interpreting Neb. Rev.
Stat. § 48-121(3) (Reissue 2010), the court determined that
Melton’s amputation below the knee entitled him to statutory
benefits for 150 weeks. The court found credible Melton’s tes-
timony regarding his limitations and retained use of his leg. It
concluded that Melton had not lost all functional use of his left
leg, but that “his loss of thigh strength and atrophy combined
with his knee pain have reduced the function of his leg beyond
the loss of his foot.” The court found that Melton suffered a
20-percent loss of function to his leg, entitling him to 43 weeks
of disability benefits. Thus, the court awarded a combined total
of 193 weeks of compensation.
The court recognized the parties’ disagreement as to when
the City should have begun making periodic permanent dis-
ability payments for the amputation of Melton’s left foot.
It looked for an explanation concerning the City’s delay in
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309 Nebraska Reports
MELTON v. CITY OF HOLDREGE
Cite as 309 Neb. 385
paying for the loss of Melton’s foot and stated that “[t]he dif-
fering dates of MMI by [Dr. Dennis] McGowan (2012) and
[Dr. Bryan] Scheer (2017), when combined with the unan-
swered question of when [the City] received McGowan’s opin-
ion, create a factual controversy, if having a medical opinion
is required.” The court declared that whether MMI must be
proved by expert medical opinion was an unanswered question
of law, but it concluded that an expert medical opinion was not
required where temporary disability benefits are discontinued
before MMI. The court found, as a matter of law, that in an
uncontested case involving the amputation of a hand, arm,
foot, or leg, payment for permanent disability for the amputa-
tion should begin immediately at the discontinuance of tempo-
rary disability benefits or MMI, whichever occurs first. Based
on that finding, the court determined that Melton’s entitlement
to payment for the amputation of his foot began on June 17,
2012, when he returned to full-time work and his temporary
disability benefits were discontinued.
The court denied Melton’s requests for a waiting-time pen-
alty and vocational rehabilitation. In declining to award a
penalty, the court found that “a reasonable controversy exists
regarding an unanswered question of law” as to whether the
discontinuance of temporary disability payments triggers pay-
ment of permanent disability payments in a case involving
an amputation. Because Melton had secured substantial gain-
ful employment, the court denied his request for vocational
rehabilitation.
Melton filed a timely appeal, which we moved to our
docket. 1
III. ASSIGNMENTS OF ERROR
Melton assigns that the court erred in (1) failing to evaluate
his loss and the loss of use of his leg without the assistance
of his prosthetic device in determining impairment; (2) failing
1
See Neb. Rev. Stat. § 24-1106(3) (Cum. Supp. 2020).
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309 Nebraska Reports
MELTON v. CITY OF HOLDREGE
Cite as 309 Neb. 385
to award him for the total loss of use of his leg; (3) failing to
award him consecutive disability benefits for the total loss of
all his toes, his foot, and use of his leg pursuant to § 48-121(3);
(4) failing to award waiting-time penalties, attorney fees, and
interest for late payment associated with the total loss of his
foot; and (5) failing to find that he was entitled to an award of
vocational rehabilitation services for satisfying criteria of Neb.
Rev. Stat. § 48-162.01(3) (Reissue 2010) despite no further
services being requested or necessary at the time of trial.
IV. STANDARD OF REVIEW
[1] A judgment, order, or award of the 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
[2] On appellate review, the factual findings made by the
trial judge of the Workers’ Compensation Court have the
effect of a jury verdict and will not be disturbed unless
clearly wrong. 3
[3] An appellate court is obligated in workers’ compensation
cases to make its own determinations as to questions of law. 4
V. ANALYSIS
1. Determination of Loss
Melton challenges three aspects of the court’s determination
of his loss. First, he argues that in determining his impairment,
the court failed to evaluate loss of use of his left leg with-
out the prosthesis attached. Second, Melton contends that the
2
Rogers v. Jack’s Supper Club, 308 Neb. 107, 953 N.W.2d 9 (2021).
3
Parks v. Hy-Vee, 307 Neb. 927, 951 N.W.2d 504 (2020).
4
Rogers v. Jack’s Supper Club, supra note 2.
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MELTON v. CITY OF HOLDREGE
Cite as 309 Neb. 385
court should have awarded him compensation for the total loss
of use of his leg. Third, Melton claims that the court erred in
failing to award him consecutive disability benefits for a total
loss of all his toes, his foot, and use of his left leg. Before
addressing these challenges, we review statutory language cen-
tral to our analysis.
[4] Section 48-121(3) generally provides the manner by
which a worker is compensated for the loss or loss of use of
a scheduled member. 5 Loss of a foot or leg are examples of
scheduled member injuries. Under § 48-121(3), compensa-
tion for the loss of a foot lasts for 150 weeks while compen-
sation for loss of a leg extends for 215 weeks. The statute
specifies that “amputation between the knee and the ankle
shall be considered as the equivalent of the loss of a foot,”
while “amputation at or above the knee shall be considered as
the loss of a leg.” 6 Under § 48-121(3), Melton’s amputation is
considered a loss of a foot.
Section 48-121(3) also touches on loss of use of a scheduled
member. A permanent total loss of the use of a leg is consid-
ered as the equivalent of the loss of such leg. 7 For a permanent
partial loss of the use or function of a leg, “the compensation
shall bear such relation to the amounts named in such subdivi-
sion as the disabilities bear to those produced by the injuries
named therein.” 8 We now turn to Melton’s arguments.
(a) Consideration of Prosthesis
Melton argues that the court erred by determining the loss of
use of his left leg with the prosthetic device rather than without
the use of a prosthesis. We disagree that it did so.
The court’s award recognized Melton’s limitations and use
of a prosthesis. It acknowledged Melton’s testimony that he
5
Smith v. Mark Chrisman Trucking, 285 Neb. 826, 829 N.W.2d 717 (2013).
6
§ 48-121(3).
7
See id.
8
Id.
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309 Nebraska Reports
MELTON v. CITY OF HOLDREGE
Cite as 309 Neb. 385
would have no functional use of his leg without the prosthe-
sis and that the function of his leg was reduced by his loss of
thigh strength, atrophy, and knee pain. But the court found that
Melton “has not lost all functional use of his left leg.”
The court’s factual finding is not clearly wrong. The court
explained, “The retained strength and function in the knee and
thigh, although reduced, enable [Melton] to walk, climb steps,
navigate uneven terrain, and generally support the use of the
prosthesis below the knee.” This comports with Melton’s tes-
timony regarding what he could do without his prosthesis: he
could “pick up [his left] leg . . . waist high,” crawl up stairs,
climb ladders (although Melton qualified that doing so would
be “tough” and not “very safe”), and navigate uneven terrain
by “crawl[ing] or scoot[ing] or slid[ing].” Because the court
did not determine Melton’s loss based on use of his prosthesis,
this assignment of error lacks merit.
(b) Total Loss of Use of Leg
Melton next argues that the court should have awarded him
for a total loss of use of his left leg. He claims that without the
prosthesis, his leg is a useless object for all practical intents and
purposes. But Melton’s left leg was not useless—he remained
able to bend his knee and support weight on the residual limb.
As discussed above, the court’s finding that Melton had not
lost all functional use of his leg was not clearly wrong.
Melton relies on a Pennsylvania test mentioned by the
Nebraska Court of Appeals in one of its decisions. In Jacob
v. Columbia Ins. Group, 9 an employee suffered such extensive
injuries to his left hand that doctors considered amputating
it, but were ultimately able to save part of it. The Court of
Appeals found Pennsylvania’s “‘practical intents and purposes’
test” to be persuasive on the question of whether the employee
suffered such disability to his hand that the hand served no
real purpose. 10 The Court of Appeals found as a matter of
9
Jacob v. Columbia Ins. Group, 2 Neb. App. 473, 511 N.W.2d 211 (1994).
10
Id. at 487, 511 N.W.2d at 219.
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309 Nebraska Reports
MELTON v. CITY OF HOLDREGE
Cite as 309 Neb. 385
law that the employee’s left hand was useless and that he suf-
fered a 100-percent disability to his hand.
Using that test, Melton argues that he has sustained a
100-percent loss of use of his left leg for all practical intents
and purposes. However, the court’s finding that Melton retained
enough strength in his left leg to use the prosthetic device is
supported by the record. We cannot find that Melton’s left leg
was useless.
Melton next contends that the effects of his amputation
were not usual, logical, and expected. Long ago, in consider-
ing whether an employee who sustained an injury to his thumb
should also be compensated on the basis of an injury to the
hand, we observed that injuries to the thumb and to the hand
were separate scheduled injuries under § 48-121(3) and that we
had “consistently held that where the effect of an injury to a
finger only is the usual and natural one, compensation cannot
be allowed for loss of use of the hand.” 11 In Jacob, the Court
of Appeals applied the principle for loss of or injury to any of
the scheduled members listed in § 48-121(3), stating that “so
long as the injury is only to a lesser member, the scheduled
compensation for loss of or injury to that member controls,
unless there is an unusual and unexpected result to the greater
members.” 12 Here, the trial court found that Melton suffered
an additional 20-percent loss of function in his leg that went
beyond what would have otherwise been expected after ampu-
tation of his left leg below the knee. We find no clear error in
this regard.
(c) Failure to Make Consecutive Awards
Melton further argues that the court erred in failing to award
him consecutive amounts of disability benefits for the loss
11
Herold v. Constructors, Inc., 201 Neb. 697, 701, 271 N.W.2d 542, 544
(1978).
12
Jacob v. Columbia Ins. Group, supra note 9, 2 Neb. App. at 484, 511
N.W.2d at 217.
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309 Nebraska Reports
MELTON v. CITY OF HOLDREGE
Cite as 309 Neb. 385
of his five toes, the loss of his left foot, and the total loss of his
left leg. He relies on the following statutory language:
In any case in which there is a loss or loss of use
of more than one member or parts of more than one
member set forth in this subdivision, but not amounting
to total and permanent disability, compensation benefits
shall be paid for the loss or loss of use of each such
member or part thereof, with the periods of benefits to run
consecutively. 13
[5] Melton’s argument is refuted by statutory language found
in the same paragraph. As we mentioned above, § 48-121(3)
explicitly states that a below-the-knee amputation is the equiv-
alent of a loss of a foot. It is obvious that such a loss would
include a loss of the toes on the foot, but the Legislature lim-
ited the loss to the foot. This is in line with the general rule
that a party may not have double recovery for a single injury. 14
For the reasons discussed above, the trial court’s find-
ing that Melton did not suffer a total loss of use of his leg
was not clearly wrong. The court appropriately compensated
Melton for the functional loss of his leg that was not already
accounted for in the compensation for the loss of his foot.
Being mindful that double recovery is disallowed and that loss
of a leg is compensated for 215 weeks, the court was careful to
award loss of use benefits for the leg that when coupled with
the 150-week award for loss of a foot, would not exceed 215
weeks. We affirm the court’s award of a combined total of 193
weeks of compensation.
2. Penalty, Interest, and Attorney Fees
Melton argues that the court erred by failing to award a
waiting-time penalty, interest, and attorney fees with respect
to late payment of permanent disability benefits for the loss of
13
§ 48-121(3).
14
See D’Quaix v. Chadron State College, 272 Neb. 859, 725 N.W.2d 558
(2007).
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MELTON v. CITY OF HOLDREGE
Cite as 309 Neb. 385
his foot. He does not quarrel with the trial court’s conclusion
regarding when permanent disability benefits become due for
an amputation. Rather, he challenges only the court’s factual
finding that a reasonable controversy existed.
Here, the parties’ disagreement centered on when the City
should have made payments for the permanent loss of Melton’s
foot. Melton argued that payment was due when his entitle-
ment to temporary disability ceased. On the other hand, the
City asserted that permanency benefits should be paid only
after MMI has been reached and that it timely paid such
benefits within 30 days of being provided proof that Melton
had reached MMI. The City contends that this disagreement
amounted to a reasonable controversy.
[6,7] Neb. Rev. Stat. § 48-125 (Cum. Supp. 2020) authorizes
a 50-percent penalty payment for waiting time involving delin-
quent payment of compensation and an attorney fee, where
there is no reasonable controversy regarding an employee’s
claim for workers’ compensation. 15 A “reasonable controversy”
exists (1) if there is a question of law previously unanswered
by the Supreme Court, which question must be answered to
determine a right or liability for disposition of a claim under
the Nebraska Workers’ Compensation Act, or (2) if the prop-
erly adduced evidence would support reasonable but opposite
conclusions by the compensation court about an aspect of an
employee’s claim, which conclusions affect allowance or rejec-
tion of an employee’s claim, in whole or in part. 16
[8] Whether a reasonable controversy exists under § 48-125
is a question of fact. 17 The compensation court determined
that a reasonable controversy existed due to “an unanswered
question of law” regarding the timing of permanent disabil-
ity payments. Our case law is clear that temporary disability
benefits are discontinued at the point of MMI and that when
15
Picard v. P & C Group 1, 306 Neb. 292, 945 N.W.2d 183 (2020).
16
See id.
17
Id.
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MELTON v. CITY OF HOLDREGE
Cite as 309 Neb. 385
an injured employee reaches MMI, any remaining disability is
permanent. 18 We have also declared that MMI is not reached
until all of the injuries resulting from an accident have reached
maximum medical healing and that our law does not provide
for partial MMI. 19 In this case, the City last paid tempo-
rary partial disability benefits in March 2016, which suggests
Melton had reached MMI. That Melton had reached MMI was
made clear in a May 2017 letter in which Melton’s counsel
informed the City that “Melton is now at MMI for the remain-
ing impairment for the injury to his knee and leg.” Ten days
later, the City mailed a check for the 100-percent loss of a foot.
In finding a reasonable controversy, the court explained that
“[o]ur appellate courts have not ruled that the discontinuance
of temporary disability payments triggers payment of perma-
nent disability payments in a case involving an amputation.”
We agree that this was an unanswered question. Accordingly,
we find no clear error in the compensation court’s finding that
a reasonable controversy existed.
3. Vocational Rehabilitation
Finally, Melton faults the court for not awarding vocational
rehabilitation benefits. He emphasizes the importance of his
prosthesis and of coworkers’ assistance in his ability to return
to work. Melton argues that the court was “required to enter an
award of vocational services as [he] has satisfied criteria a, b,
c and d as set forth in [§] 48-162.01.” 20 Melton misconstrues
the statute.
Under § 48-162.01(3), an employee who, due to an injury,
“is unable to perform suitable work for which he or she
has previous training or experience, . . . is entitled to such
18
See Gardner v. International Paper Destr. & Recycl., 291 Neb. 415, 865
N.W.2d 371 (2015).
19
See Rodriguez v. Hirschbach Motor Lines, 270 Neb. 757, 707 N.W.2d 232
(2005).
20
Brief for appellant at 30.
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MELTON v. CITY OF HOLDREGE
Cite as 309 Neb. 385
vocational rehabilitation services, including job placement and
training, as may be reasonably necessary to restore him or her
to suitable employment.” The statute sets forth priorities to “be
used in developing and evaluating a vocational rehabilitation
plan.” 21 The priorities are contained in a list from (a) to (e),
which are listed in order from lower priority to higher priority.
Section 48-162.01(3) specifies that no higher priority may be
used unless the lower priorities would be unlikely to result in
suitable employment for the injured employee.
[9] Whether an injured worker is entitled to vocational
rehabilitation is ordinarily a question of fact to be determined
by the compensation court. 22 In declining to award vocational
rehabilitation, the court relied on Melton’s testimony that he
had secured, and was capable of performing, substantial gain-
ful employment. Although Melton believed he would need
vocational rehabilitation if he became unable to continue his
present employment, the court stated that it could not engage
in speculation or give advisory opinions.
[10] We find no clear error in the court’s decision to deny
vocational rehabilitation benefits. The evidence establishes that
Melton is able to perform suitable work for which he has previ-
ous training or experience. He testified that he felt comfortable
with his ability to continue performing the essential functions
of his job. Although Melton desired an award of vocational
rehabilitation in case he needed services in the future, a work-
ers’ compensation award cannot be based on mere possibility
or speculation. 23
To the extent Melton is arguing he should be entitled to
vocational rehabilitation based on a future loss of his existing
employment but without an increase in his disability, this argu-
ment invites us to provide an advisory opinion. We decline to
do so.
21
§ 48-162.01(3).
22
Bower v. Eaton Corp., 301 Neb. 311, 918 N.W.2d 249 (2018).
23
See id.
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MELTON v. CITY OF HOLDREGE
Cite as 309 Neb. 385
VI. CONCLUSION
We find no clear error in the court’s determination that
Melton did not suffer a total loss of his leg, but, rather, suffered
a 20-percent loss of function to his leg that went beyond what
would have been otherwise expected following amputation
of his leg below the knee. We cannot say that the court was
clearly wrong in finding the existence of a reasonable contro-
versy regarding timing of payments for the loss of Melton’s
foot. Finally, because Melton was performing suitable work
for which he had previous training or experience, the court did
not err in denying vocational rehabilitation benefits. We affirm
the judgment.
Affirmed.
Stacy, J., not participating.