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IN THE NEBRASKA COURT OF APPEALS

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

(Memorandum Web Opinion)

FONT V. JBS USA

NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION

AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).

IVETTE CLEMENTE FONT, APPELLEE AND CROSS-APPELLEE,

V.

JBS USA, L.L.C., APPELLANT, AND STATE OF NEBRASKA WORKERS’

COMPENSATION TRUST FUND, APPELLEE AND CROSS-APPELLANT.

Filed March 30, 2021. No. A-20-025.

Appeal from the Workers’ Compensation Court: J. MICHAEL FITZGERALD, Judge. 

Affirmed.

Charles L. Kuper, of Larson, Kuper & Wenninghoff, P.C., L.L.O., for appellant.

Lee S. Louden and Joseph A. Huckleberry, of Law Office of Lee S. Louden, P.C., L.L.O., 

for appellee Font.

Douglas J. Peterson, Attorney General, and Amanda M. Phillips for appellee State of 

Nebraska Workers’ Compensation Trust Fund.

BISHOP, ARTERBURN, and WELCH, Judges.

BISHOP, Judge.

I. INTRODUCTION

JBS USA, L.L.C. (JBS), appeals, and the State of Nebraska Workers’ Compensation Trust 

Fund (Trust Fund) cross-appeals, the Workers’ Compensation Court’s order entered on December 

23, 2019, awarding vocational rehabilitation services to Ivette Clemente Font. We affirm.
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II. BACKGROUND

1. NOVEMBER 28, 2016, INJURY

Font, also referred to as Clemente in the record, began working for JBS in July 2016. When 

she applied to JBS, she represented that she was capable of doing “medium work,” meaning work 

that required her to push or pull or lift up to 26 to 50 pounds occasionally. She began working in 

the “intestine department.” On November 28, while performing her job of “reach[ing] out and 

grab[bing] the stomach of the [cow carcass as it came down a conveyor line], pull[ing] it [towards 

her] with her left hand and cutting it with her right,” she “felt a pop and heard a crack in her right 

shoulder and neck.” Upon medical examination immediately following her injury, Font was 

provided temporary work restrictions. Thereafter, she saw several doctors and underwent physical 

therapy under the primary complaint of severe pain in her right shoulder. Throughout this period, 

Font reported additional pain in her neck, back, and left shoulder, however the examining doctors 

believed this pain to be independent of the injury on November 28. On April 3, 2017, Font 

underwent a right shoulder arthroscopy with subacromial decompression and partial clavicle 

excision; she still reported pain and limited range of motion in her right shoulder thereafter.

Following her recovery from surgery, Font returned to work for JBS in a less strenuous 

capacity on May 16, 2017, working as a “bagger” with restrictions of using her left arm. Font filed 

a petition in the Workers’ Compensation Court on June 30 for the injuries she sustained on 

November 28, 2016. She was subsequently laid off in August 2017 because “they couldn’t find a 

low restriction job for [her].”

On October 31, 2017, the compensation court entered an order on the issue of whether a 

vocational rehabilitation counselor should be appointed. The court noted Font’s right shoulder 

injury had been assigned a 5-percent impairment rating at that time, and also noted Font’s 

complaints of neck and left shoulder pain. The compensation court concluded, “A vocational 

rehabilitation counselor should be appointed to begin the assessment and/or evaluation to 

determine what, if any, vocational rehabilitation services [Font] is entitled to.” It further stated:

In any assessment or evaluation the counselor has an interview with the injured 

employee, researches medical records, including past medical records and/or treatment. 

The vocational rehabilitation counselor also obtains a history of [Font’s] prior employment 

and the requirements of that employment. Additionally, a vocational counselor reviews the 

injured employee’s academic qualifications to determine if the employee has the 

qualifications to proceed with training and perform positions in the employee’s particular 

labor market. That may require testing. All of the above must occur before a vocational 

rehabilitation plan can be prepared. For this reason, this basic evaluation should proceed 

forthwith so that once [Font] reaches maximum medical improvement, a recommendation 

may be made on [Font’s] options for future employment, and the preparation of a 

vocational rehabilitation plan. . . .

All of the above can be accomplished prior to the preparation of a plan, therefore, 

the evaluation and/or assessment should begin now and a plan prepared later.

[Font] has a 5 percent permanent impairment and has not returned to work. The 

vocational rehabilitation process should begin.
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The compensation court ordered that a vocational rehabilitation counselor be appointed to perform 

the initial steps to prepare a rehabilitation plan.

A functional capacity evaluation (FCE) measuring Font’s employment limitations was 

conducted on November 28, 2017. She was called back to work at JBS in January 2018, and she 

was given “new restrictions of being sedentary or seated” and she started a new job in the laundry 

department organizing or pairing gloves. JBS then terminated her post in March; Font was told 

that if her restrictions changed in the future and they could be accommodated, then she “might 

have a job with them again.” Font never returned to work at JBS.

2. MARCH 1, 2019, INITIAL AWARD

Trial was held on July 10, 2018. Font, age 47 at the time of trial, testified with the help of 

an interpreter. Her medical records and the reports and opinions of the doctors who examined her 

case were entered into evidence. Preceding the commencement of trial testimony, Font’s attorney 

informed the court that in accordance with the October 31, 2017, order, Amanda Ruhland was 

appointed as the vocational rehabilitation counselor to perform an initial evaluation, “[b]ut because 

the parties could not agree on what the permanent restrictions are, no vocational plan has been 

prepared or submitted to the Court.” The compensation court noted that

there is a disagreement on the shoulder as to if there are any restrictions or not. There is 

that disagreement, and it’s the shoulder itself. Because that makes a difference on whether 

or not I send her out to a plan . . . if she needs one. So, make that record. And I’ll listen 

closely. But I’m having a problem with the restrictions or no restrictions. I may ask for 

some help on that.

The record reflects that the compensation court was aware there was disagreement between the 

parties on the issue of whether Font had any permanent restrictions. We now briefly summarize 

the evidence adduced at trial and the findings of the Workers’ Compensation Court pertinent to 

the issues raised on appeal.

Font testified that she had a “lot of pain” in her right shoulder at the time of trial and that 

she could not reach above her head without right shoulder pain. She indicated that her right 

shoulder bothered her when lifting things and that she could only lift under 5 pounds. Pushing and 

pulling with her right arm also was painful. Font claimed that based on her right shoulder and neck 

pain, she did not feel she could perform any of the jobs she held before she worked at JBS.

The compensation court issued its initial award on March 1, 2019. The court noted that the 

parties agreed Font was employed by JBS when the injury occurred on November 28, 2016, and 

that her average weekly wage was $678.33; the court accepted the agreement.

Upon consideration of Font’s testimony and the medical records and reports entered into 

evidence, the compensation court found that Font “injured her right shoulder, had surgery, and has 

an 11 percent loss of use of her right arm” as a result of the accident on November 28, 2016. 

Despite the earlier acknowledgement that permanent restrictions were at issue, the court did not 

make a finding as to permanent restrictions regarding Font’s right shoulder.

The compensation court additionally found that Font “suffer[ed] a neck sprain which 

healed, and for which requires no additional treatment at this time, that is the responsibility of 

[JBS].” The court noted that “[t]oo many examinations found no complaints of neck pain and full 
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range of motion.” The court determined that Font was “entitled to $452.22 per week for temporary 

benefits during the period of April 3, 2017[,] through May 15, 2017, and 24.75 weeks of permanent 

benefits for an 11 percent impairment of the right upper extremity.” The court ordered that Font 

was entitled to future medical care for her right shoulder injury. The award also provided that Font 

was “entitled to a vocational rehabilitation evaluation[,]” and gave her 45 days “to contact the 

vocational rehabilitation section of the Court[.]” Referring back to that determination, it ordered 

that Font was “entitled to vocational rehabilitation services as more specifically set forth above.”

The court credited JBS for all benefits paid until the date of trial and awarded Font $950 in attorney 

fees. Neither party appealed the compensation court’s award.

3. MAY 21, 2019, ORDER REGARDING VOCATIONAL REHABILITATION

Font thereafter filed a motion to compel vocational rehabilitation on May 8, 2019, claiming 

that following the compensation court’s March 1 award, she notified the court’s vocational section 

on March 5 that she wanted vocational services. There had been correspondence between the 

parties and the vocational rehabilitation counselor, Ruhland, where Ruhland informed the parties 

she could not “move forward with the development of a VR Plan without agreed upon restrictions 

or specified restrictions set forth by a judge.”

In response to the motion, the compensation court issued an order on May 21, 2019, which 

was directed to Ruhland. At the outset, the order provided that “[t]he main purpose of vocational 

rehabilitation is to enable the injured employee to return to work at a full time position which pays 

as much, if not more, than the employee earned at the time of injury.” The court provided an 

inexhaustive list of factors to be considered in formulating an appropriate vocational rehabilitation 

plan, including, how the employee presents herself; education and/or intellectual capacity; ability 

to communicate and/or follow instructions; ability to read, write, speak, and understand English; 

ability to do what she did at the time of the accident; loss of use of any bodily function; employee’s 

statement about what she believes she can or cannot do; and positions in the local economy for 

which the employee is qualified for and/or can be retrained to perform. The court then stated that 

“[w]hile restrictions from doctors and other healthcare providers are to be considered, restrictions 

are not the sole factor in determining an appropriate vocational rehabilitation plan. Restrictions are 

only one of a myriad of factors to be considered by the vocational rehabilitation counselor, only 

some of which are set forth above.”

Subsequently, a vocational rehabilitation plan was developed using the restrictions set forth 

in the FCE offered at trial, even though those restrictions had not been adopted by the 

compensation court in its March 2019 award. Because the March award contained no finding of 

permanent restrictions, JBS requested a plan based on no restrictions. However, no such plan was 

developed.

The drafted plan called for Font to pursue an Associate of Applied Science Degree in 

Business Technology following completion of ESL coursework and attaining a GED. This plan 

was denied by the Vocational Rehabilitation Section in September 2019. Because vocational 

rehabilitation services were in dispute, the Trust Fund was added as a defendant in November.
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4. DECEMBER 23, 2019, ORDER APPROVING VOCATIONAL REHABILITATION PLAN

The compensation court held a hearing on December 13, 2019, concerning the adoption 

of the proposed vocational rehabilitation plan. At that hearing, the court stated, 

“Restrictions -- restrictions may or may not be considered on a loss of earning power but I also 

ruled that [Font] is entitled to voc rehab because she’s not back at her old job and probably can’t 

do it -- can’t do her old job.” In that same hearing, the court asked Ruhland the following line of 

questions:

Q [Court]. If someone has a loss of the arm, do they have any restrictions?

A [Ruhland]. I have no idea. That’s not my area of expertise.

Q. Well, let’s assume they don’t --

A. Assume someone --

Q. -- because there is no arm to use?

A. Yeah.

Q. All right. So if you would have a loss of use of the arm, a partial loss of the use, 

that would limit your ability to use the arm, wouldn’t it?

A. It would.

Q. And one could have that loss of use without restrictions?

A. They could.

Q. But they couldn’t do what they did before because they have a loss of use?

A. True.

The court later remarked that “you’re all hung up on restrictions but obviously if a doctor says a 

person has 11 percent loss of use, is that arm as good as it was before?” The court stressed that at 

the initial trial, Font did not testify about restrictions. It further noted,

[Font] testified about the inability of what she could do. That’s a loss of use. A loss of use 

is not necessarily a restriction and that’s the problem I see here. Everybody says this loss 

of use is a restriction. If you don’t have a restriction but you can’t use your arm anymore 

because you have a loss of use.

The court again later stated, “[Font] doesn’t have any restrictions, she only has loss of use.” Font 

subsequently testified, as she did at the initial trial, that her right shoulder is painful and she cannot 

lift her arm past her chest and it hurts when she lifts something with her right arm below chest 

level.

The compensation court entered an order on December 23, 2019, adopting the proposed 

plan with amendments. The court found again that Font had “an impairment resulting in an 11 

percent loss of use of her right arm” and that such a loss of use entitled her to vocational 

rehabilitation services. The court expressly found that “[w]hile [F]ont has no formal restrictions, 

that does not deny her the right to vocational rehabilitation benefits[,]” and [v]ocational 

rehabilitation benefits usually result in an evaluation and preparation of a plan.” The court added, 

“While the vocational rehabilitation plan may be more difficult to prepare because there are no 

restrictions, [Font] remains entitled to the preparation of and approval of a plan, because of a loss 

of use of an arm.” In support of its decision, the court cited to Green v. Drivers Mgmt., Inc., 263 
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Neb. 197, 639 N.W.2d 94 (2002), for the proposition that “an employee is entitled to vocational 

rehabilitation benefits as a result of an injury which results in impairment or restrictions.” The 

court explained, “When one has a loss of use of a member resulting in the member not being able 

to function as it used to and limiting the use of that member to engage in employment activities, 

then one has an impairment and is entitled to vocational rehabilitation services.”

The plan adopted by the compensation court entailed completion of ESL coursework and 

job placement for part-time employment, requiring Font to “participate in the plan to find part-time 

employment and . . . make a reasonable effort to find part-time employment” as she was 

completing the ESL courses. Following completion of the ESL coursework, Font would take a test 

to determine if obtaining a GED would be necessary for her to attend classes at Central Community 

College. The nature and scope of her education at Central Community College would depend on 

either agreement between the parties or further hearing by the compensation court upon application 

of either party.

JBS appealed, and the Trust Fund cross-appealed, the compensation court’s December 23, 

2019, order approving the vocational rehabilitation plan, as amended.

III. ASSIGNMENTS OF ERROR

JBS claims the compensation court erred (1) “as a matter of law and fact by providing for 

vocational rehabilitation services[,]” and (2) adopting the vocational rehabilitation plan developed 

by the court-appointed vocational rehabilitation counselor.

The Trust Fund contends on cross-appeal that (1) the compensation court erred by 

disregarding the first part of the two-part test for eligibility of vocational rehabilitation benefits, 

(2) the compensation court’s March 2019 award and December order violated Rule 11 of the 

Nebraska Workers’ Compensation Court Rules of Procedure, and (3) the compensation court erred 

in shifting the responsibility of making factual findings regarding disability to the court-appointed 

vocational rehabilitation counselor.

IV. STANDARDS OF REVIEW

Before reaching the legal issues presented for review, it is the power and duty of an 

appellate court to determine whether it has jurisdiction over the matter before it, irrespective of 

whether the issue is raised by the parties. Loyd v. Family Dollar Stores of Neb., 304 Neb. 883, 937 

N.W.2d 487 (2020). A jurisdictional issue that does not involve a factual dispute presents a 

question of law, which an appellate court independently decides. Id.

Pursuant to Neb. Rev. Stat. § 48-185 (Cum. Supp. 2018), an appellate court may modify, 

reverse, or set aside a Workers’ Compensation Court decision only when (1) the compensation 

court acted without or in excess of its powers; (2) the judgment, order, or award was procured by 

fraud; (3) there is 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. Aboytes-Mosqueda v. LFA Inc., 306 Neb. 277, 944 N.W.2d 765 (2020).

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. Id. In testing the sufficiency of the evidence to support the findings of fact in a workers’

compensation case, an appellate court considers the evidence in the light most favorable to the 
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successful party, every controverted fact must be resolved in favor of the successful party, and the 

appellate court gives the successful party the benefit of every inference reasonably deducible from 

the evidence. Id.

As the trier of fact, the Workers’ Compensation Court is the sole judge of the credibility of 

witnesses and the weight to be given their testimony. Id.

V. ANALYSIS

1. APPELLATE JURISDICTION

Before reaching the legal issues presented for review, it is the power and duty of an 

appellate court to determine whether it has jurisdiction over the matter before it, irrespective of 

whether the issue is raised by the parties. Loyd v. Family Dollar Stores of Neb., supra. JBS’ first 

assigned error claims that the compensation court erred as a matter of law and fact by providing 

Font with vocational rehabilitation services. Font argues that this court does not have jurisdiction 

over this assigned error because JBS failed to appeal the March 1, 2019, award which found that 

Font was entitled to such services. Because the March award was a final, appealable order, Font 

contends that JBS waived its right to contest Font’s entitlement to such services by failing to timely 

appeal the initial award.

We agree with Font that the March 2019 award was a final, appealable order, from which 

no one appealed. However, we disagree with Font’s suggestion that the finality of that award 

precludes an appeal of the vocational rehabilitation plan subsequently submitted and approved by 

the compensation court in December 2019, which is at the heart of JBS’ appeal and the Trust 

Fund’s cross-appeal.

There are three types of final orders which may be reviewed on appeal, one of which is an 

order that affects a substantial right made during a special proceeding. Id. Because workers’

compensation proceedings are special proceedings, the issue is whether the court’s order is final. 

Id.

In a special proceeding, an order is final and appealable if it affects a substantial right of 

the aggrieved party. Id. An order affects a substantial right if it affects the subject matter of the 

litigation, such as diminishing a claim or defense that was available to the appellant prior to the 

order from which he or she is appealing. See id. 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. Jacobitz v. Aurora 

Co-op, 287 Neb. 97, 841 N.W.2d 377 (2013).

The compensation court’s March 2019 award stated that Font was entitled to temporary 

and permanent benefits, future medical care for her right shoulder injury, vocational rehabilitation 

services, and a reasonable attorney fee. With respect to the vocational rehabilitation services, the 

compensation court ordered that Font was “entitled to a vocational rehabilitation evaluation.” The 

court additionally ordered JBS to pay unpaid medical bills and Font’s mileage and gave credit to 

JBS for all payments previously made to Font. Neither party appealed. Even JBS acknowledges 

that no appeal was taken from that award and “it became binding on both parties[.]” Brief for 

appellant at 15. JBS further acknowledges that the March 2019 award “addressed all the issues 

raised and did not reserve any issues for later determination.” Id. at 14.
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We also note that when a compensation court determines that the injured party is entitled 

to vocational rehabilitation services, that determination becomes final and appealable even though 

a vocational rehabilitation plan has not yet been developed. See Rodriguez v. Monfort, Inc., 262 

Neb. 800, 635 N.W.2d 439 (2001) (compensation court awarded employee permanent impairments 

for right and left upper extremities and ordered employer to pay medical and indemnity benefits, 

as well as awarded vocational rehabilitation services based on employee suffering pain in present 

job; entitlement to vocational rehabilitation services affirmed).

We do not read JBS’ first assigned error as contesting the fact that the March 2019 award 

was a final order which granted Font the right to obtain a vocational rehabilitation evaluation; 

rather, JBS is arguing that the court’s failure to make a finding on permanent restrictions in that 

order “amounts to a denial of Font’s contention she suffered permanent restrictions.” Brief for 

appellant at 14. JBS then argues, “Without permanent restrictions, Font can return to all pre-injury 

employment and is not entitled to vocational rehabilitation services[.]” Id. at 16. In other words, 

JBS does not contest Font’s right to have a vocational rehabilitation evaluation; rather, it is arguing 

that because of the finality of the March 2019 award which failed to establish any permanent 

restrictions, that factor should preclude Font from receiving the vocational rehabilitation services 

proposed in Ruhland’s plan because those services are premised upon Font having permanent 

restrictions.

Similarly, the Trust Fund contends that the March 2019 order did not order vocational 

rehabilitation services; rather, “[i]t ordered a vocational rehabilitation evaluation.” Brief for 

appellee Trust Fund at 2. The Trust Fund argues that no appeal was taken from the March 2019 

order because “there was no error made by ordering an evaluation.” Id. (emphasis in original). 

Like JBS, the Trust Fund’s argument centers largely on the notion that the resulting vocational 

rehabilitation plan was “premised on FCE restrictions the compensation court considered and 

failed to order,” and “[t]he compensation court’s failure to adopt the FCE restrictions in its March 

1, 2019 [order] is conclusive on the parties.” Id.

Accordingly, neither JBS nor the Trust Fund dispute that the March 2019 order was final 

and appealable and that no appeal was taken from that order. Their challenges on appeal do not 

relate to Font’s right to be further evaluated by the vocational rehabilitation counselor, Ruhland, 

who was appointed at the direction of the compensation court back in its October 31, 2017, order; 

rather, they challenge the compensation court’s adoption of the vocational rehabilitation plan for 

various reasons, as will be discussed further below.

We conclude that the March 2019 initial award was a final, appealable order, which 

awarded to Font the right to be evaluated for purposes of determining her eligibility for vocational 

rehabilitation services or benefits, and if so, the nature and extent of those services or benefits. The 

lack of an appeal from the March 2019 order does not preclude JBS and the Trust Fund from 

appealing the subsequent December order which approved Ruhland’s proposed vocational 

rehabilitation plan, as amended. The December order was timely appealed. We next address the 

assignments of error challenging that order.

2. ISSUE OF NO PERMANENT RESTRICTIONS

As just discussed, JBS’ first assignment of error is not challenging the fact that the 

compensation court’s initial award in March 2019 permitted a vocational rehabilitation evaluation. 
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Rather, JBS complains that the compensation court’s adoption of Ruhland’s vocational 

rehabilitation plan, as amended by the court, was clearly wrong and not supported by the record 

because the plan was based upon permanent restrictions that the compensation court did not adopt 

as part of its findings. Specifically, JBS points out that although the FCE restrictions relied upon 

by Ruhland were referenced in the March 2019 award, so were the opinions of Dr. Dugas, who 

concluded Font did not have any permanent restrictions. A vocational rehabilitation plan 

developed using restrictions contained in an FCE not stipulated to by the parties or adopted by the 

court is understandably concerning. However, as we will discuss next, we conclude the lack of 

articulated permanent restrictions by the court and Ruhland’s reliance on the FCE’s restrictions do 

not preclude Font’s entitlement to vocational rehabilitation services.

As we previously observed, the record reflects that the compensation court was aware there 

was disagreement between the parties on the issue of whether Font had any permanent restrictions.

Just prior to the commencement of trial testimony, Font’s attorney informed the court that in 

accordance with the court’s October 31, 2017, order, Ruhland was appointed as the vocational 

rehabilitation counselor to perform an initial evaluation, “[b]ut because the parties could not agree 

on what the permanent restrictions are, no vocational plan has been prepared or submitted to the 

Court.” The compensation court recognized there was a disagreement “on the shoulder as to if 

there are any restrictions or not[,]” and “that makes a difference on whether or not I send her out 

to a plan . . . if she needs one.”

The compensation court ultimately concluded in its initial March 2019 award that Font was 

entitled to a vocational rehabilitation evaluation; thus, implicit in that determination is its 

conclusion that Font was unable to perform suitable work for which she had previous training or 

experience. See Neb. Rev. Stat. § 48-162.01(1) (Reissue 2010) (when as result of injury, employee 

is unable to perform suitable work for which he or she has previous training or experience, he or 

she is entitled to such vocational rehabilitation services, including job placement and training, as 

may be reasonably necessary to restore him or her to suitable employment). Further, if Font was 

able to return to work, she would not have been entitled to vocational rehabilitation. See Green v. 

Drivers Mgmt., Inc., 263 Neb. 197, 206, 639 N.W.2d 94, 103 (2002) (pursuant to § 48-162.01(3), 

“if one is able to return to work, he or she is not entitled to vocational rehabilitation”). No one 

appealed from the initial award, thus indicating no dispute that Font was unable to return to work 

at that point in time. The dispute arose only when Ruhland indicated she could not develop a 

vocational rehabilitation plan without an agreement by the parties or a court order related to 

permanent restrictions.

Ruhland’s request for clarification on restrictions resulted in the May 21, 2019, order, in 

which the compensation court provided an inexhaustive list of factors to be considered in 

formulating a vocational rehabilitation plan, which included loss of bodily function. Also, at the 

hearing held December 13, the compensation court remarked that “you’re all hung up on 

restrictions but obviously if a doctor says a person has 11 percent loss of use, is that arm as good 

as it was before?” The court stressed that at the initial trial, Font did not testify about restrictions; 

rather, she testified about “the inability of what she could do. That’s a loss of use.” The court 

emphasized that “loss of use is not necessarily a restriction” and that if “you can’t use your arm 

anymore,” “you have a loss of use.” The court later reiterated, “[Font] doesn’t have any 

restrictions, she only has loss of use.” Font subsequently testified her right shoulder is painful and 
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she cannot lift her arm past her chest and it hurts when she lifts something with her right arm below 

chest level. The court focused on Font’s 11-percent permanent impairment to her right shoulder 

and its impact on Font’s loss of use of her right arm. The court acknowledged that “[w]hile the 

vocational rehabilitation plan may be more difficult to prepare because there are no restrictions, 

[Font] remains entitled to the preparation of and approval of a plan, because of a loss of use of an 

arm.”

Notably, the applicable statute does not explicitly require a determination of permanent 

restrictions. Section 48-162.01(1) states that “[o]ne of the primary purposes of the Nebraska 

Workers’ Compensation Act is restoration of the injured employee to gainful employment.” The 

statute further provides:

When as a result of the injury an employee is unable to perform suitable work for 

which he or she has previous training or experience, he or she is entitled to such vocational 

rehabilitation services, including job placement and training, as may be reasonably 

necessary to restore him or her to suitable employment. . . .

. . . . The vocational rehabilitation counselor . . . shall evaluate the employee and, 

if necessary, develop and implement a vocational rehabilitation plan. Any such plan shall 

be evaluated by a vocational rehabilitation specialist of the compensation court and 

approved by such specialist or a judge of the compensation court prior to implementation. 

In evaluating a plan the specialist shall make an independent determination as to whether 

the proposed plan is likely to result in suitable employment for the injured employee that 

is consistent with the priorities listed in this subsection. . . .

The following priorities shall be used in developing and evaluating a vocational 

rehabilitation plan. No higher priority may be utilized unless all lower priorities 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. If a 

lower priority is clearly inappropriate for the employee, the next higher priority shall be 

utilized. The priorities are, listed in order from lower to higher priority:

(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.

§ 48-162.01(3).

The statute is clear that an employee is entitled to vocational rehabilitation services as may 

be reasonably necessary to restore the employee to suitable employment when the employee is 

unable to perform suitable work for which the employee has previous training or experience. 

Further, § 48-162.01(7) states that the compensation court “may also modify a previous finding, 

order, award, or judgment relating to physical, medical, or vocational rehabilitation services as 

necessary in order to accomplish the goal of restoring the injured employee to gainful and suitable 
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employment, or as otherwise required in the interests of justice.” Thus, the ability for the court to 

establish steps in Font’s plan, subject to further stipulations or orders, is supported by the statute.

Determination as to whether an injured employee is able to perform the work for which 

that employee was previously trained is a question of fact to be determined by the trial judge, and 

that determination will not be disturbed by an appellate court unless the judge’s finding is clearly 

erroneous. Green v. Drivers Mgmt., Inc., supra. In that case, the Nebraska Supreme Court held:

Without a finding of permanent medical impairment, there can be no permanent 

restrictions. Without impairment or restrictions, there can be no disability or labor market 

access loss. Absent permanent impairment or restrictions, the worker is fully able to return 

to any employment for which he or she was fitted before the accident, including 

occupations held before the injuries occurred. As § 48-162.01(3) indicates, if one is able to 

return to work, he or she is not entitled to vocational rehabilitation.

. . . .

To hold that a worker can receive vocational rehabilitation benefits absent a finding 

that the worker is permanently impaired does not amount to a sensible reading of the 

statute. Thus the factual findings, in light of § 48-162.01 do not support a finding that [the 

employee] is entitled to vocational rehabilitation as a matter of law.

Green v. Drivers Mgmt., Inc., 263 Neb. at 206-07, 639 N.W.2d at 103-04 (emphasis supplied).

JBS argues that Green v. Drivers Mgmt., Inc., supra, supports its argument that the 

compensation court’s failure to make a finding regarding permanent restrictions precludes the 

adoption of a vocational rehabilitation plan. However, in Green, none of the employee’s physicians 

assigned a permanent impairment rating or gave permanent physical restrictions, nor did the 

compensation court make a specific finding of impairment. The compensation court nevertheless 

found the employee suffered a 50-percent loss of earning capacity as a result of the injury. On 

initial appeal to this court, we found it was clear error to assign a 50-percent permanent partial 

disability when the record contained no evidence that the employee suffered a permanent 

impairment to his body as a whole. See Green v. Drivers Mgmt., Inc., 10 Neb. App. 299, 634 

N.W.2d 22 (2001). This court also concluded that since § 48-162.01 no longer had a requirement 

that an injured worker have a permanent disability to be eligible for vocational rehabilitation 

benefits, the award of such benefits was not affected by the lack of a permanent impairment. See 

id. On further review, the Supreme Court agreed that a 50-percent permanent partial disability 

could not be established when the record did not indicate that the employee suffered a permanent 

impairment. However, the Supreme Court disagreed with this court that the employee was entitled 

to vocational rehabilitation benefits when there was no evidence the employee was permanently 

disabled.

Notably, Green v. Drivers Mgmt., Inc., 263 Neb. 197, 639 N.W.2d 94 (2002), says that the 

absence of permanent impairment or restrictions suggests an employee can return to work as 

before the accident, and under those circumstances, the employee is not entitled to vocational 

rehabilitation. In this case, although the compensation court did not articulate any findings 

regarding Font’s permanent physical restrictions, it did conclude Font had an 11-percent 

permanent impairment of the right upper extremity, which the court also characterized as “an 11 

percent loss of use of her right arm.” Therefore, the court’s failure to make a finding on specific 
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restrictions does not by itself preclude Font from receiving vocational rehabilitation services since, 

unlike the circumstances in Green, the court affirmatively concluded that Font had an 11-percent 

permanent loss of use of her right arm.

We also find some guidance in Rodgers v. Nebraska State Fair, 288 Neb. 92, 846 N.W.2d 

195 (2014). In that case, the Nebraska Supreme Court dealt with the application of Neb. Rev. Stat. 

§ 48-121(3) (Reissue 2010) to an employee who suffered injuries to both of his knees in a 

work-related accident. Section 48-121(3) provides the compensation court discretion to determine 

an employee’s loss of earning capacity in those instances where an injured person has “a loss or 

loss of use of more than one member” from the same accident and the court determines that 

compensation benefits for the scheduled members alone do not adequately compensate the 

employee for such loss or loss of use and results in at least 30-percent loss of earning capacity. In 

Rodgers, although the employee was given an impairment rating for both knees, the medical 

evidence only provided permanent physical restrictions for his right knee. A vocational 

rehabilitation counselor nevertheless determined that the employee had a 65-percent loss of 

earning capacity. The compensation court concluded it was unable to perform a loss of earning 

power calculation in the absence of expert proof of permanent restrictions relating to the left knee 

and therefore limited its award based on scheduled member benefits only. It determined that 

“‘there must be at least a functional loss of use in the form of permanent physical restrictions for 

each scheduled member’ in order to perform a loss of earning capacity calculation.” Rodgers v. 

Nebraska State Fair, 282 Neb. at 97, 846 N.W.2d at 200.

The Supreme Court reversed the compensation court, holding that “the court erred as a 

matter of law when it limited the application of the new remedy to only those cases in which an 

expert opinion existed regarding the permanent physical restrictions as to each injured member, 

an element not found in the statutory language and not essential to the performance of a loss of 

earning capacity calculation.” Id. at 100, 846 N.W.2d at 201. The Supreme Court pointed out that 

nothing in the statutory language of § 48-121(3) required expert proof of permanent physical 

restrictions as to each member. Citing to Green v. Drivers Mgmt., Inc., supra, the Supreme Court 

stated, “We have often noted the necessity, in the alternative, of proof of impairment or restrictions 

at the loss of earning analysis stage, but we have not been directed to authority which requires 

proof of both impairment and restrictions before undertaking a loss of earning capacity analysis.”

Rodgers v. Nebraska State Fair, 288 Neb. at 103, 846 N.W.2d at 203-04. The Supreme Court 

concluded that § 48-121(3) did not require expert proof of permanent physical restrictions assigned 

to each injured member in order to perform the loss of earning capacity assessment.

Although Rodgers v. Nebraska State Fair, supra, addressed the absence of permanent 

restrictions in the context of a loss of earning capacity analysis, we nevertheless find instructive 

its determination that both impairment and restrictions are not necessary to perform such an 

analysis. Although evaluating the priorities to determine a proper level of vocational rehabilitation 

is not identical to performing a loss of earning analysis, there are certainly overlapping 

considerations. See Martinez v. CMR Constr. & Roofing of Texas, 302 Neb. 618, 924 N.W.2d 326 

(2019) (loss of earning capacity factors include worker’s eligibility to procure employment 

generally, ability to earn wages, ability to hold job obtained, and capacity to perform work in job 

in which worker is engaged). Additionally, Rodgers pointed out that nothing in the statutory 

language of § 48-121(3) required expert proof of permanent physical restrictions as to a scheduled 
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member. And, as previously noted, there is no language in § 48-162.01 which requires a specific 

finding of permanent physical restrictions before vocational rehabilitation services can be 

considered.

Accordingly, the compensation court’s failure to make a finding of permanent physical 

restrictions did not preclude consideration of a vocational rehabilitation plan to determine how to 

return Font to suitable employment under § 48-162.01(3).

3. ADOPTION OF AMENDED VOCATIONAL REHABILITATION PLAN

JBS’ remaining assignment of error relates to the compensation court’s approval of a plan 

that was based on permanent restrictions that were not adopted by the court. The November 28, 

2017, FCE, upon which Ruhland relied, was entered into evidence at trial. The March 2019 award 

referenced the FCE being a “valid test” that found Font “met full sedentary into light categories”

in functional tolerance and outlined restrictions on her capacity to work. Following that FCE, Font 

was subsequently called back to work at JBS in January 2018, and she was given “new restrictions 

of being sedentary or seated” and she started a new job in the laundry department organizing or 

pairing gloves. JBS then terminated her post in March. Font was told that if her restrictions changed

in the future and they could be accommodated, then she “might have a job with them again.” Font 

never returned to work at JBS.

Notwithstanding the compensation court’s lack of findings concerning permanent or 

“formal” restrictions, inherent in the court’s finding of entitlement to vocational rehabilitation 

services and subsequent approval of the adopted vocational rehabilitation plan was the court’s 

determination that Font was “unable to perform suitable work for which she has previous training 

or experience.” See § 48-162.01(3). The record offers sufficient support for the compensation 

court’s determination that Font was not able to perform work for which she had experience or 

training. In ordering the vocational rehabilitation plan, the compensation court drew from the 

medical records and reports entered into evidence as well as Font’s self-reported limitations on 

what she could and could not do. In determining the inability of a claimant to earn wages in the 

same or a similar kind of work for which he or she was trained or was accustomed to performing, 

a trial judge in a workers’ compensation case may rely on the claimant’s testimony. See Krause v. 

Five Star Quality Care, 301 Neb. 612, 919 N.W.2d 514 (2018). During the December 2019 

hearing, Font affirmed that her capacity to lift, carry, push, and pull was substantially limited by 

the pain such activities caused in her right arm. She further testified that, following the termination 

of her employment with JBS, she had accepted two separate employment positions, but was 

quickly dismissed from each position due to the pain in her right arm preventing her from 

performing the work. She also stated that she believed that she could not perform the jobs that she 

has previously held or otherwise been trained to perform.

From this evidence, the court made several findings and statements on the record 

concerning Font’s inability to perform suitable work. As previously noted, the court found in its 

March 2019 award that Font had “an 11 percent loss of use of her right arm” as a result of her 

injury suffered on November 28, 2016. The court reiterated this impairment rating in its December 

2019 order and wrote that “[w]hen one has a loss of use of a member resulting in the member not 

being able to function as it used to and limiting the use of that member to engage in employment 

activities, then one has an impairment and is entitled to vocational rehabilitation services.” The 
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court also acknowledged that “[w]hile the vocational rehabilitation plan may be more difficult to 

prepare because there are no restrictions, [Font] remains entitled to the preparation of and approval 

of a plan, because of a loss of use of an arm.”

Although Ruhland used the restrictions contained in the FCE as the basis for the proposed 

vocational rehabilitation plan, the compensation court’s adoption of the plan, as amended, 

demonstrates the court’s agreement with the plan’s goal of Font learning English sufficiently to 

attend a community college designed to redirect her from physical labor to more clerical, 

office-based positions. The court’s determination that Font was unable to perform work for which 

she was previously trained is a question of fact which we will not disturb on appeal unless that 

finding is clearly erroneous. Green v. Drivers Mgmt., Inc., 263 Neb. 197, 639 N.W.2d 94 (2002) 

(determination that injured employee is able to perform work for which employee was previously 

trained is question of fact to be determined by trial judge, and will not be disturbed by appellate 

court unless finding is clearly erroneous).

Because the record sufficiently supports the court’s adopted vocational rehabilitation plan, 

we cannot say the court’s December 2019 order was clearly wrong.

4. TRUST FUND’S CROSS-APPEAL

(a) Font’s Ability to Return to Suitable Work

The Trust Fund assigns that the compensation court erred “by disregarding the first-part of 

the two-part test for eligibility of vocational rehabilitation benefits.” It contends that while Font 

had a permanent impairment rating to her right shoulder, she had to also demonstrate she was 

unable to return to suitable work in order to qualify for vocational rehabilitation benefits. In that 

regard, the Trust Fund claims the “compensation court failed to make factual findings regarding 

how the permanent shoulder injury impacts [Font’s] ability to get and perform suitable work.”

Brief for appellee Trust Fund on cross-appeal at 5.

While phrased differently than JBS’ assigned error regarding the lack of permanent 

restrictions precluding vocational rehabilitation services, we view the gist of the Trust Fund’s 

argument as being similar and we need not reiterate our analysis again here. To the extent the Trust 

Fund is challenging the compensation court’s initial determination that Font qualified for a 

vocational rehabilitation evaluation, and thus implicitly determining she could not work and 

required an assessment to determine how to restore her to suitable employment, the time to appeal 

that determination was within 30 days of the initial award.

(b) Rule 11

The Trust Fund argues on cross-appeal that the compensation court failed to render a 

decision complying with the requirements of Rule 11(A) of the Nebraska Workers’ Compensation 

Court Rules of Procedure. More specifically, the Trust Fund asserts that the March 2019 award 

and the December order “contradict one another” due to the court’s adoption of the amended plan 

as described above and therefore “fail to provide a reasoned decision” concerning the issues before 

the court. Brief for appellee Trust Fund on cross-appeal at 9.

Rule 11(A) provides that “[d]ecisions of the court shall provide the basis for a meaningful 

appellate review. The judge shall specify the evidence upon which the judge relies.” Rule 11 is 

designed to ensure that compensation court orders are sufficiently clear in addressing requests for 
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relief in order that an appellate court can review the evidence relied upon by the trial judge in 

support of his or her findings. Hadfield v. Nebraska Med. Ctr., 21 Neb. App. 20, 838 N.W.2d 310 

(2013).

As described above, we found no contradiction between the compensation court’s award 

and order concerning the court’s findings of no “formal restrictions” and the amended vocational 

rehabilitation plan. The court identified the medical records, reports, and opinions that it relied on 

in making its findings, and found the amended plan to be appropriate in light of its determination 

of Font’s impairment and inability to work in the same or similar capacity as before. We find the 

compensation court’s award and order provided sufficient detail to allow for meaningful appellate 

review and therefore complied with the requirements of rule 11(A).

(c) Shifting Responsibility of Making Factual Findings

The Trust Fund argues on cross-appeal that the compensation court erred by shifting the 

court’s responsibility of making factual findings regarding disability to Ruhland, the 

court-appointed vocational counselor. The Trust Fund asserts the court erroneously shifted its role 

as fact finder to Ruhland when the court adopted, with amendments, Ruhland’s plan that she 

drafted based on permanent restrictions not adopted by the court.

Regardless of Ruhland’s expertise and her role in drafting the plan offered to the 

compensation court, the court did not shift its responsibility as fact finder. As described previously, 

the parties apprised the court that Ruhland’s drafted plan was based on permanent restrictions not 

included in the court’s findings. The court, informed of this fact, deemed the amended plan 

appropriate in light of the evidence adduced at trial and the subsequent hearings. As noted 

previously, the record contains sufficient evidence concerning Font’s impairment and incapacity 

to perform suitable work for which she has training or experience to support its order. The 

compensation court, in its role as fact finder, relied upon this evidence in finding its adopted plan 

appropriate to this case. As previously stated, we find no error in the court’s December 2019 order.

VI. CONCLUSION

The compensation court’s December 23, 2019, order is affirmed in all respects.

AFFIRMED.