Visoso v. Cargill Meat Solutions

272 	285 NEBRASKA REPORTS
knowingly, and voluntarily admits that he does not contest
the allegations being made against him. The court accepts
respondent’s voluntary surrender of his license to practice
law, finds that respondent should be disbarred, and hereby
orders him disbarred from the practice of law in the State of
Nebraska, effective immediately. Respondent shall forthwith
comply with all terms of Neb. Ct. R. § 3-316 of the discipli-
nary rules, and upon failure to do so, he shall be subject to
punishment for contempt of this court. Accordingly, respond-
ent is directed to pay costs and expenses in accordance with
Neb. Rev. Stat. §§ 7-114 and 7-115 (Reissue 2012) and Neb.
Ct. R. §§ 3-310(P) and 3-323 of the disciplinary rules within
60 days after an order imposing costs and expenses, if any, is
entered by the court.
Judgment of disbarment.
odilon Visoso, also known as adam rodriguez,
appellant, V. Cargill meat solutions, appellee.
826 N.W.2d 845
Filed February 22, 2013. 	No. S-12-038.
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. ____: ____. With respect to questions of law in workers’ compensation cases, an
appellate court is obligated to make its own determination.
3. ____: ____. On appellate review of a workers’ compensation award, the trial
judge’s factual findings have the effect of a jury verdict and will not be disturbed
unless clearly wrong.
4. Workers’ Compensation: Proof. In a proceeding to modify a prior workers’
compensation award, the employer has the burden of establishing a decrease of
incapacity and the employee has the burden of establishing an increase.
5. Workers’ Compensation. Temporary disability benefits should be paid only to
the time when it becomes apparent that the employee will get no better or no
worse because of the injury.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:39 AM CST

VISOSO V. CARGILL MEAT SOLUTIONS 	273
Cite as 285 Neb. 272
6. ____. Temporary disability benefits are discontinued at the point of maximum
medical improvement, because a disability cannot be both temporary and perma-
nent at the same time.
7. Workers’ Compensation: Words and Phrases. An undocumented employee
is an “employee” or “worker” who is covered under the Nebraska Workers’
Compensation Act.
8. Workers’ Compensation. The Workers’ Compensation Court cannot order voca-
tional retraining without determining that the worker’s postinjury physical restric-
tions and vocational impediments prevent the worker from complying with all of
the lower work priorities in Neb. Rev. Stat. § 48-162.01(3) (Reissue 2010).
9. ____. If an injured employee is ineligible for the lower work priorities in Neb.
Rev. Stat. § 48-162.01(3) (Reissue 2010) because the employee cannot be legally
placed with the same employer or a new employer, then the compensation court
cannot order retraining for a new career.
10. ____. Unlike vocational retraining benefits, there are no prioritized goals that
must be satisfied before a court can award indemnity for an employee’s loss of
earning capacity.
11. 	____. Both before and after an employee’s maximum medical improvement,
an employee’s disability as a basis for compensation under Neb. Rev. Stat.
§ 48-121(1) and (2) (Reissue 2010) is determined by the employee’s diminution
of employability or impairment of earning power or earning capacity.
12. ____. An employee’s impairment of earning capacity does not depend on a find-
ing that the employee cannot be placed in a job with the same employer or in a
job with a different employer.
13. ____. An employee’s illegal residence or work status does not bar an award of
indemnity for permanent loss of earning capacity.
14. ____. For purposes of workers’ compensation, the risk of hiring an undocumented
alien falls on the employer to cover the associated costs if that worker is injured
during the scope of employment.
15. ____. The Nebraska Workers’ Compensation Act is designed to compensate an
injured worker for two distinct losses resulting from a work-related injury or
occupational disease: the loss of earning capacity based on the concept of dis-
ability and medical and other costs associated with the injury or disease.
16. ____. Because the purpose of the Nebraska Workers’ Compensation Act is to
compensate injured workers for injuries regardless of immigration status, the act
can be applied to all workers, whether legally hired or not.
17. ____. If a workers’ compensation claimant in good faith relocates to a new com-
munity, the new community may serve as the hub community from which to
assess the claimant’s loss of earning power.
18. ____. The first step in identifying the relevant labor market for assessing a work-
er’s loss of earning power is to determine whether the hub community is where
the injury occurred, or where the claimant resided when the injury occurred, or
where the claimant resided at the time of the hearing.
19. ____. The Nebraska Workers’ Compensation Act should be construed to accom-
plish its beneficent purposes.

274 	285 NEBRASKA REPORTS
20. ____. If sufficient credible data exists for a determination of an undocumented
worker’s loss of earning capacity in his or her community of origin and the
worker has moved for legitimate purposes, and not to increase workers’ compen-
sation benefits, then the community of origin may serve as the hub community.
21. ____. A workers’ compensation award cannot be based on possibility or specula-
tion, and if an inference favorable to the claimant can be reached only on the
basis thereof, then the claimant cannot recover.
Appeal from the Workers’ Compensation Court: ronald
l. brown, Judge. Affirmed in part, and in part reversed and
remanded for further proceedings.
Ryan C. Holsten, of Atwood, Holsten, Brown & Deaver Law
Firm, P.C., L.L.O., for appellant.
Caroline M. Westerhold and Colin A. Mues, of Baylor,
Evnen, Curtiss, Grimit & Witt, L.L.P., for appellee.
H eaViCan, C.J., wrigHt, C onnolly, stepHan, mCC ormaCk,
and miller-lerman, JJ.
wrigHt, J.
NATURE OF CASE
In 2006, Odilon Visoso, an undocumented worker, was
injured in the course and scope of his employment with Cargill
Meat Solutions (Cargill). Following a trial in 2008, he was
awarded temporary total disability benefits.
In 	2011, 	Cargill 	petitioned 	the 	Nebraska 	Workers’
Compensation Court to discontinue the temporary total dis-
ability benefits, because Visoso had reached maximum medical
improvement. While the action was pending in the compensa-
tion court, Visoso returned to Mexico, his country of origin.
Vocational rehabilitation experts who testified at the hearing
on Cargill’s petition were unable to provide credible evidence
of Visoso’s loss of earning capacity based upon prospective
employment in Mexico. The compensation court concluded
that Cargill’s obligation to pay Visoso temporary total disabil-
ity should cease because Visoso had reached maximum medi-
cal improvement. The court declined to award Visoso benefits
for his claim of permanent impairment and loss of earning
capacity. Visoso appealed.

VISOSO V. CARGILL MEAT SOLUTIONS 	275
Cite as 285 Neb. 272
SCOPE OF REVIEW
[1] A judgment, order, or award of the Workers’ Compensation
Court may be modified, reversed, or set aside only upon the
grounds that (1) the compensation court acted without or in
excess of its powers; (2) the judgment, order, or award was
procured by fraud; (3) there is not sufficient competent evi-
dence in the record to warrant the making of the order, judg-
ment, or award; or (4) the findings of fact by the compensa-
tion court do not support the order or award. Sellers v. Reefer
Systems, 283 Neb. 760, 811 N.W.2d 293 (2012).
[2] With respect to questions of law in workers’ compen-
sation cases, an appellate court is obligated to make its own
determination. Lovelace v. City of Lincoln, 283 Neb. 12, 809
N.W.2d 505 (2012).
[3] On appellate review of a workers’ compensation award,
the trial judge’s factual findings have the effect of a jury ver-
dict and will not be disturbed unless clearly wrong. Bassinger
v. 	Nebraska 	Heart 	Hosp., 	282 	Neb. 	835, 	806 	N.W.2d
395 (2011).
FACTS
Visoso, also known as Adam Rodriguez, began working
for Cargill in Schuyler, Nebraska, in March 2006. On May 9,
Visoso suffered an injury when a 200-pound quarter of beef
fell off an overhead conveyor and landed on his head. He was
initially treated with numerous noninvasive treatments but
eventually had surgery on his neck on October 4, 2007. Shortly
after his surgery, he was fired by Cargill when it discovered
he was an undocumented alien not authorized to work in the
United States.
Following a trial, the compensation court found that Visoso
sustained a compensable injury that rendered him temporarily
totally disabled and awarded him a running award of temporary
total indemnity and payment for future medical care. No deter-
mination was made regarding Visoso’s loss of earning capacity
or eligibility for permanent indemnity benefits. The Nebraska
Court of Appeals affirmed the award of temporary total dis-
ability. See Visoso v. Cargill Meat Solutions, 18 Neb. App. 202,
778 N.W.2d 504 (2009).

276 	285 NEBRASKA REPORTS
On March 8, 2011, Cargill petitioned the compensation
court for modification of the award. It stated that more than
6 months had elapsed since the entry of the award and that
Visoso had reached maximum medical improvement. Visoso
admitted that he had reached maximum medical improvement,
but denied that he experienced a decrease in incapacity and
denied that he should no longer receive temporary total disabil-
ity. The parties agreed to the appointment of Karen Stricklett
as the vocational rehabilitation counselor to provide a report of
Visoso’s loss of earning capacity, if any.
Stricklett prepared a preliminary loss of earning capac-
ity analysis regarding Visoso’s loss of earning power in the
Schuyler area. She prepared a followup report in which she
noted Visoso’s imminent return to Mexico and her attempt to
conduct a loss of earning capacity analysis for Chilpancingo,
Guerrero, Mexico, the largest city near Chichihualco, which
is the town where Visoso would be living and which is also in
Guerrero. Stricklett concluded she needed outside help to better
analyze the labor market in Mexico. Visoso moved to compel
labor market research, because Stricklett was unable to perform
such research in Chilpancingo without outside help and Cargill
refused to pay for the additional research. Visoso relocated to
Mexico in July 2011.
Following a hearing, the compensation court denied Visoso’s
motion for labor market research. It determined Chilpancingo,
together with communities within a reasonable geographic
area around it, was the “hub community” for a loss of earn-
ing capacity analysis, citing Giboo v. Certified Transmission
Rebuilders, 275 Neb. 369, 746 N.W.2d 362 (2008).
Visoso 	had 	reported 	to 	Stricklett 	that 	Chilpancingo 	is
about 11⁄2 hours north of Acapulco, Guerrero, Mexico, and 2
hours south of Mexico City. Stricklett contacted Dr. Penelope
Caragonne, who provides vocational services to clientele in
the United States, Mexico, and Latin America. Caragonne was
familiar with the Chilpancingo area, which she characterized as
being an area run by a drug cartel. Due to safety concerns, she
was not able to contact individual employers to ascertain the
availability of employment in the area. The compensation court
questioned whether adequate foundational facts or data existed

VISOSO V. CARGILL MEAT SOLUTIONS 	277
Cite as 285 Neb. 272
which would be sufficient for Stricklett to form an expert opin-
ion on Visoso’s loss of earning power.
In 	her 	final 	loss 	of 	earning 	capacity 	analysis, 	dated
September 16, 2011, Stricklett used three separate scenar-
ios. Her first two analyses involved the Schuyler/Columbus/
Fremont 	area 	in 	Nebraska, 	the 	restrictions 	outlined 	by
Visoso’s treating physician, and the restrictions required by
an independent doctor retained in the case. Finally, Stricklett
attempted to perform an analysis for the Chilpancingo area.
However, she did not “feel capable of providing a loss of
earning capacity estimate taking into account [Visoso’s] cur-
rent labor market area.” She did not think that any opinion
she provided could “be expressed with a reasonable degree of
vocational certainty.”
Visoso retained Helen Long as a vocational rehabilitation
expert. She computed Visoso’s ability to work and earn wages
in Nebraska and concluded that he sustained a 100-percent
loss of his earning capacity in Schuyler. Next, she performed
an analysis based on Visoso’s move to Chichihualco. She con-
cluded that regardless of his location, Visoso was “permanently
and totally disabled” and had sustained a 100-percent loss of
earning power.
At the hearing on Cargill’s “Petition for Modification of
Award,” the parties stipulated that Visoso achieved maximum
medical improvement on February 25, 2009. They did not
agree on a change in the extent of his disability. Pursuant to the
compensation court’s July 14, 2011, order, Chilpancingo was
used as the hub community for purposes of determining loss of
earning capacity.
In its order of December 22, 2011, the compensation
court concluded that Visoso had reached maximum medical
improvement and that any physical restrictions thereafter
were permanent, although the degree or extent of his perma-
nent physical restrictions remained in dispute. Based on the
evidence presented, the court found that Visoso was no longer
temporarily totally disabled and had experienced a material
and substantial decrease of physical incapacity. It concluded
that Cargill, the moving party, had the burden of proof to
terminate the temporary total disability payments, but that

278 	285 NEBRASKA REPORTS
Visoso retained the burden to establish entitlement to perma-
nent indemnity.
It found that Visoso moved from Schuyler to Chichihualco
in good faith and not to manipulate his loss of earning power.
It concluded that Chichihualco was the appropriate hub com-
munity and that Chilpancingo was within a reasonable geo-
graphic distance around the hub community. The agreed-upon
vocational rehabilitation counselor, Stricklett, was not able to
provide a credible report on loss of earning power, because
she could not find sufficient evidence for the hub commu-
nity. Therefore, the court found that the evidence was insuf-
ficient to quantify Visoso’s loss of earning power to award
permanent indemnity and that Cargill had no further liability
to Visoso. It terminated Visoso’s payments for temporary
total disability.
Visoso timely appealed, and we moved the case to our
docket pursuant to our authority to regulate the dockets of the
appellate courts of this state. See Neb. Rev. Stat. § 24-1106(3)
(Reissue 2008).
ASSIGNMENTS OF ERROR
Visoso assigns that the Workers’ Compensation Court erred
by (1) finding that Cargill met its burden of proof for modi-
fication of the award pursuant to Neb. Rev. Stat. § 48-141
(Reissue 2010) and (2) finding that Visoso was not entitled to
permanent disability benefits corresponding to his loss of earn-
ing capacity.
ANALYSIS
termination of temporary
disability
The first question is who had the burden of proof on Cargill’s
motion to terminate the temporary total disability payments to
Visoso. Visoso contends that Cargill had the burden to prove
Visoso’s decrease in disability and his degree of permanent
loss of earning capacity. Cargill argues that it had to prove only
that Visoso had reached maximum medical improvement, and
that therefore, the running award of temporary total disability
benefits should cease.

VISOSO V. CARGILL MEAT SOLUTIONS 	279
Cite as 285 Neb. 272
As the party seeking modification, Cargill had the burden
to prove the allegations in its petition to modify the running
award of temporary total disability benefits to Visoso. See,
§ 48-141; U S West Communications v. Taborski, 253 Neb.
770, 572 N.W.2d 81 (1998). Cargill petitioned the compensa-
tion court for an order terminating temporary total disabil-
ity payments because Visoso had reached maximum medical
improvement. It alleged that Visoso reached maximum medical
improvement on February 25, 2009; that Visoso was no longer
temporarily totally disabled; and that his indemnity benefits on
that basis should cease. Visoso admitted that he had reached
maximum medical improvement, but he did not agree that there
was a change in his disability.
Visoso argues that because Cargill sought the modifica-
tion of his temporary total disability benefits, it also had the
burden to show a decrease in his disability. He asserts that
because his loss of earning power could not be ascertained, it
was plain error to grant Cargill’s application for modification.
We disagree.
Visoso relies upon Bronzynski v. Model Electric, 14 Neb.
App. 355, 707 N.W.2d 46 (2005). Bronzynski involved an
application to modify a prior award of permanent partial
disability benefits, wherein the employee must demonstrate
an increase in his existing disability. The employee showed
a change in impairment but failed to satisfy his burden of
proof, because he did not also demonstrate that he sustained
an increase in disability. Bronzynski does not apply, because
Visoso has no prior award of permanent disability benefits.
Had Cargill sought to reduce an award of permanent benefits,
then it would have had the burden to show that Visoso had a
decrease of impairment which caused a decrease in Visoso’s
loss of earning capacity.
[4] Section 48-141 provides, in pertinent part, that “at any
time after six months from the date of the agreement or award,
an application [to modify the award] may be made by either
party on the ground of increase or decrease of incapacity.”
The employee has the burden of proving that his injury caused
permanent impairment of his body as a whole as a predicate to
an award for permanent disability, i.e., loss of earning capacity.

280 	285 NEBRASKA REPORTS
See Green v. Drivers Mgmt., Inc., 263 Neb. 197, 639 N.W.2d 94
(2002). In a proceeding to modify a prior award, the employer
has the burden of establishing a decrease of incapacity and the
employee has the burden of establishing an increase. U S West
Communications, supra.
[5,6] Cargill was not required to address permanent dis-
ability payments. Temporary disability benefits should be paid
only to the time when it becomes apparent that the employee
will get no better or no worse because of the injury. Rodriguez
v. Hirschbach Motor Lines, 270 Neb. 757, 707 N.W.2d 232
(2005). Simply stated, when an injured employee has reached
maximum medical improvement, any remaining disability is,
as a matter of law, permanent. Id. Temporary disability benefits
are discontinued at the point of maximum medical improve-
ment, because a disability cannot be both temporary and per-
manent at the same time. See id. Temporary payments do
not continue after maximum medical improvement has been
reached by the employee. Because Cargill established that
Visoso reached maximum medical improvement, Cargill satis-
fied its burden of proof that Visoso’s temporary total disability
payments should cease.
indemnity for permanent
impairment
The question is what, if any, permanent disability payments
Cargill should pay to Visoso. Permanent disability is an essen-
tial element of an employee’s claim in workers’ compensation,
and therefore, the burden rests with the employee to prove the
elements of his or her compensation claim. See Green, supra.
After reaching maximum medical improvement, Visoso has the
burden of proving that his injury caused permanent impairment
of his body as a whole and that this permanent impairment
resulted in a loss of earning capacity.
determining loss of
earning power
In Moyera v. Quality Pork Internat., 284 Neb. 963, 825
N.W.2d 	409 	(2013), 	the 	primary 	issue 	was 	whether 	the
employee, an undocumented alien, was entitled to indemnity

VISOSO V. CARGILL MEAT SOLUTIONS 	281
Cite as 285 Neb. 272
benefits. We held that the Nebraska Workers’ Compensation
Act (Act) applied to undocumented aliens working for a
covered 	employer 	in 	Nebraska 	and 	that 	such 	employees
were entitled to permanent indemnity benefits for work-
related injuries.
[7] Cargill does not contest that Visoso is a covered
employee under the Act. In Visoso v. Cargill Meat Solutions,
18 Neb. App. 202, 778 N.W.2d 504 (2009), the Court of
Appeals concluded that an undocumented employee is an
“employee” or “worker” who is covered under the Act. In
Moyera, supra, the employer claimed the trial judge erred as a
matter of law in awarding the employee, Ricardo Moyera, ben-
efits for permanent loss of earning capacity, because Moyera
was an illegal alien who had no plans to return to his native
country and had taken no action to become a legal resident of
the United States. The employer claimed that temporary dis-
ability benefits were different from permanent disability ben-
efits, because temporary benefits are limited to an employee’s
healing period. It claimed that benefits for permanent loss of
earning power should be barred for the same reason that voca-
tional rehabilitation benefits are not allowed—because they
depend upon an employee’s ability to obtain lawful employ-
ment in the United States.
Moyera held that the Act covered undocumented aliens
and that our decision in Ortiz v. Cement Products, 270 Neb.
787, 708 N.W.2d 610 (2005), did not preclude an award of
benefits to an undocumented alien for permanent disability.
The employer argued that Moyera, like the undocumented
employee in Ortiz, had no plans to return to his home country
or to become a legal resident of the United States. Therefore,
the employer claimed that Moyera had no earning capacity
to lose because he had no legal right to be employed in the
United States.
[8-10] We clarified why in the case of an undocumented
alien vocational rehabilitation benefits are distinguishable from
permanent disability benefits. The Workers’ Compensation
Court cannot order vocational retraining without determining
that the worker’s postinjury physical restrictions and vocational
impediments prevent the worker from complying with all of

282 	285 NEBRASKA REPORTS
the lower work priorities in Neb. Rev. Stat. § 48-162.01(3)
(Reissue 2010). See Moyera, supra. If an injured employee is
ineligible for the statute’s lower work priorities because the
employee cannot be legally placed with the same employer
or a new employer, then the compensation court cannot order
retraining for a new career. See id. But unlike vocational
retraining benefits, there are no prioritized goals that must be
satisfied before a court can award indemnity for an employee’s
loss of earning capacity. Id.
[11-13] Both before and after an employee’s maximum
medical improvement, an employee’s disability as a basis
for compensation under Neb. Rev. Stat. § 48-121(1) and (2)
(Reissue 2010) is determined by the employee’s diminution
of employability or impairment of earning power or earning
capacity. Moyera v. Quality Pork Internat., 284 Neb. 963,
825 N.W.2d 409 (2013). An employee’s impairment of earn-
ing capacity does 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. Id. Therefore, an employee’s illegal
residence or work status does not bar an award of indemnity
for permanent loss of earning capacity. See id.
[14] For purposes of workers’ compensation, the risk of hir-
ing an undocumented alien falls on the employer to cover the
associated costs if that worker is injured during the scope of
employment. See 3 Arthur Larson & Lex K. Larson, Larson’s
Workers’ Compensation Law § 66.03[4][a] at 66-21 (2011)
(“with a few exceptions, illegal aliens are treated as cov-
ered employees”; under that “general workers’ compensa-
tion scheme, the employer is generally responsible for paying
indemnity to an injured worker as long as he or she is unable
to return to work”). See, also, Moyera, supra.
[15,16] Such coverage conforms with the purpose of the
Act: “The [A]ct is designed to compensate an injured worker
for two distinct losses resulting from a work-related injury or
occupational disease: the loss of earning capacity based on
the concept of disability and medical and other costs associ-
ated with the injury or disease.” Foote v. O’Neill Packing,
262 Neb. 467, 474, 632 N.W.2d 313, 320 (2001). Because
the purpose is to compensate injured workers for injuries

VISOSO V. CARGILL MEAT SOLUTIONS 	283
Cite as 285 Neb. 272
regardless of immigration status, the Act can be applied to all
workers, whether legally hired or not.
In the case at bar, Cargill petitioned the compensation
court to make a determination that Visoso had reached maxi-
mum medical improvement. Visoso returned to Mexico, his
country of origin, while the matter was pending. Because
the court determined Visoso’s move was made in good faith
and not for an improper motive, the court attempted to deter-
mine his loss of earning capacity based on evidence obtained
in Mexico.
The trial proceeded on the basis that Visoso was eligible
to pursue his claim for loss of earning power benefits. The
compensation court’s denial of benefits was not based upon
Visoso’s status as an undocumented worker. But it denied
benefits because it concluded there was no reliable evidence
regarding Mexico labor markets from which to base a determi-
nation of loss of earning power. Whether Visoso was eligible
to recover a permanent award for loss of earning capacity was
not decided by the court because of a lack of credible evidence
for which to base a determination of Visoso’s loss of earn-
ing capacity.
Having concluded that Visoso is eligible for workers’ com-
pensation benefits, both temporary and permanent, we examine
the location upon which to base those benefits: the place where
the injury occurred or the place where Visoso now resides.
Visoso moved to Chichihualco in July 2011, and the com-
pensation court determined that Chichihualco, together with
Chilpancingo, the largest city in the area and the state capital,
would serve as the hub community for calculation of Visoso’s
loss of earning power. Chilpancingo is 45 to 60 minutes from
Chichihualco and the only large community within 50 miles.
The area is rural and mountainous, high in crime, and con-
trolled by a drug cartel.
Although Stricklett, the agreed-upon vocational rehabilita-
tion expert, attempted to find data to perform an analysis of
loss of earning capacity in Chilpancingo, she was ultimately
unable to do so. She could not perform a permanent loss of
earning power analysis due to a lack of reliable foundational
information customarily used to make the assessment. Long,

284 	285 NEBRASKA REPORTS
Visoso’s rebuttal expert, experienced similar problems. Neither
expert had previously attempted to perform a loss of earning
power analysis in Mexico, so neither had the base of knowl-
edge they had in Nebraska. They both had to rely on Internet
resources that could not be verified, and neither attempted to
contact employers in Mexico by telephone.
Based on the lack of sufficient information and reliable data,
the compensation court determined there was no foundation to
render an opinion regarding loss of earning power for the hub
community of Chilpancingo. We agree; however, this does not
end the analysis of Visoso’s loss of earning capacity.
[17] This court has addressed which community to use as
the hub community when an injured employee relocates to a
new location for a legitimate purpose. See Giboo v. Certified
Transmission Rebuilders, 275 Neb. 369, 746 N.W.2d 362
(2008). We have recognized that either the community where
the injury occurred or the community where the employee
has moved can serve as the hub community to establish loss
of earning power. If a claimant in good faith relocates to a
new community, the new community may serve as the hub
community from which to assess the claimant’s loss of earn-
ing power. See Money v. Tyrrell Flowers, 275 Neb. 602, 748
N.W.2d 49 (2008).
[18] In Money, the employee moved from the Lincoln,
Nebraska, area to the smaller community of Table Rock,
Nebraska. The employer claimed that the employee should
have to prove loss of earning capacity in both the Lincoln and
Table Rock areas. We stated that “the first step in identify-
ing the relevant labor market for assessing a worker’s loss
of earning power is to determine whether the hub is where
the injury occurred, or where the claimant resided when the
injury occurred, or where the claimant resided at the time of
the hearing.” Id. at 611, 748 N.W.2d at 59. We concluded that
because the employee’s move was for a legitimate purpose as
determined by the compensation court, her hub community was
Table Rock and not Lincoln.
In Giboo, supra, we confronted the question of what mar-
ket to use to measure earning capacity when an employee,
after suffering an injury while living and working in one

VISOSO V. CARGILL MEAT SOLUTIONS 	285
Cite as 285 Neb. 272
community, relocates to a new community with fewer employ-
ment opportunities. The employer urged the court to adopt
a rule that would include both the market where the injury
occurred and any new market where the employee relocates
as hub communities. Having surveyed the various approaches
other jurisdictions used to identify the hub community, we
concluded that the best rule was one which regarded the
employee’s new community as the hub community, provided
that the move was made for legitimate reasons. This was the
hub community used by the court in the case at bar.
Giboo did not address whether the place of the injury could
be used as the hub community if no reliable data was available
regarding the place where the employee has moved.
Courts and commentators uniformly agree that a “labor
market” does not refer to a single community, but encom-
passes employment opportunities within a reasonable geo-
graphic area. It would seem, therefore, that the first step
in identifying a labor market is to identify “the hub from
which the spokes of a ‘reasonable geographic area’ radi-
ate, whether it [is] from the place the injury occurred, the
place the claimant resided at the time the injury occurred,
or the place the claimant resides at the time of [the work-
ers’ compensation] hearing.”
Id. at 375, 746 N.W.2d at 368. Giboo required the employee to
show loss of earning capacity based only on the new location
where the employee lived at the time of the hearing. However,
we did not conclude that such location would be the only loca-
tion allowed to show loss of earning capacity.
[19] The Act is designed to compensate an injured worker
for the loss of earning capacity caused by the injury. Powell
v. Estate Gardeners, 275 Neb. 287, 745 N.W.2d 917 (2008).
As a general rule, the Act should be construed to accomplish
its beneficent purposes. Becerra v. United Parcel Service,
284 Neb. 414, 822 N.W.2d 327 (2012). Undocumented work-
ers are eligible for permanent total disability payments, and
a vocational specialist can 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 voca-
tional impediments. See Moyera v. Quality Pork Internat., 284

286 	285 NEBRASKA REPORTS
Neb. 963, 825 N.W.2d 409 (2013). When an undocumented
worker in good faith returns to his or her country of origin, the
workers’ compensation court in assessing the worker’s perma-
nent impairment of earning capacity should initially determine
which location is the proper hub community.
[20] If sufficient credible data exists for a determination of
the loss of earning capacity in the community of origin and the
undocumented worker has moved for legitimate purposes, and
not to increase workers’ compensation benefits, then the com-
munity of origin may serve as the hub community. See, Money
v. Tyrrell Flowers, 275 Neb. 602, 748 N.W.2d 49 (2008);
Giboo v. Certified Transmission Rebuilders, 275 Neb. 369, 746
N.W.2d 362 (2008).
If the undocumented worker has returned to the worker’s
country of origin but no reliable data is available in his place
of origin, the place where the injury occurred can be consid-
ered for the purpose of a determination of impairment of earn-
ing capacity.
Visoso was unable to present competent evidence regarding
his percentage of loss of earning capacity because there was
no credible evidence upon which to base a determination. In
order to achieve the purposes of the Act, the compensation
court should have allowed Visoso the opportunity to attempt to
prove permanent loss of earning capacity using the data from
the place where the injury occurred. Because neither vocational
expert was able to provide sufficient credible evidence for a
determination of Visoso’s loss of earning capacity in Mexico,
the court should have permitted Visoso to use the place of
injury for such determination, if any. Failure to do so frustrated
the purpose of the Act.
We do not require an employee to prove loss of earn-
ing capacity in two locations and have allowed an injured
employee to show loss of earning capacity in the location
to which the employee moved. See Giboo, supra. The oppo-
site situation should also apply. If there is a lack of reli-
able and competent data available regarding Chilpancingo,
Visoso should be allowed to use Schuyler, where the injury
occurred, for purposes of asserting his claim for perma-
nent indemnity.

VISOSO V. CARGILL MEAT SOLUTIONS 	287
Cite as 285 Neb. 272
Some states have passed legislation to address compensa-
tion claims of undocumented aliens who reside outside the
United States. The Court of Appeals of New York has noted
that New York’s Workers’ Compensation Law § 17 pro-
vided, in pertinent part, that “‘[c]ompensation . . . to aliens
not residents or about to become nonresidents of the United
States or Canada, shall be the same in amount as provided
for residents.’” Ramroop v. Flexo-Craft Printing, Inc., 11
N.Y.3d 160, 168, 896 N.E.2d 69, 72, 866 N.Y.S.2d 586, 589
(2008) (emphasis omitted). The court stated, “[S]ection 17 is
concerned solely with the treatment of aliens (not just undocu-
mented aliens) who reside, or are about to reside, somewhere
other than the United States or Canada.” Id. The statute was
meant to ensure that an alien’s relocation outside the United
States would not result in diminished compensation to the
alien. Id.
In Republic Waste Services, Ltd. v. Martinez, 335 S.W.3d 401
(Tex. App. 2011), the Court of Appeals of Texas, in a wrongful
death proceeding, allowed a jury to use Texas wages, rather
than El Salvador wages, to determine loss of future earnings to
a deceased worker. The deceased worker was an immigrant liv-
ing and working illegally in Texas. He was killed in the scope
of his employment, and his wife sought death benefits. The
court concluded that the loss of future earnings of the immi-
grant was to be determined based on the income the immigrant
was making at his job in the United States, rather than wages
he would have made had he returned to El Salvador. Martinez
was a wrongful death proceeding, but the reasoning of the
court is analogous because data regarding wages did not exist
in Visoso’s country of origin.
In Moyera v. Quality Pork Internat., 284 Neb. 963, 825
N.W.2d 409 (2013), we allowed permanent indemnity even
though the undocumented worker remained in the United
States. We rejected the employer’s argument that Moyera was
not entitled to benefits for permanent indemnity because of
his illegal residency. Because the Act made no distinction
between legal and illegal aliens, we concluded it should be
broadly construed to accomplish its beneficent purpose. Both
before and after an employee has reached maximum medical

288 	285 NEBRASKA REPORTS
improvement, an employee’s disability as a basis for compensa-
tion under § 48-121(1) and (2) is determined by the employee’s
diminution in employability or impairment of earning power or
earning capacity. Moyera, supra. An employee’s illegal resi-
dence or work status does not bar an award of indemnity for
permanent total loss of earning capacity. Id.
Other states have held that undocumented employees are
covered by their state’s workers’ compensation statutes. See
Moyera, supra. In Economy Packing v. Illinois Workers’ Comp.,
387 Ill. App. 3d 283, 901 N.E.2d 915, 327 Ill. Dec. 182 (2008),
the court held that an injured undocumented worker who was
totally and permanently disabled was eligible for permanent
total disability payments even if the worker was an undocu-
mented alien who remained illegally in the United States. The
court allowed evidence of loss of earning capacity from the
place where the injury occurred.
Visoso moved from Schuyler to Chichihualco during the time
his workers’ compensation action was pending. And because
of such move, neither vocational expert was able to provide
evidence helpful to the compensation court regarding Visoso’s
loss of earning power in Mexico. Stricklett admitted she could
not perform a permanent loss of earning power analysis. Long
was also unable to offer reliable foundational information. Had
Visoso remained in the United States, Schuyler would have
been used as the hub community.
[21] Although the compensation court suspected that Visoso
had some permanent disability, in the absence of a credible
permanent loss of earning power evaluation from a profes-
sional vocational rehabilitation counselor, the court was left
to guess or speculate the amount of permanent indemnity. A
workers’ compensation award cannot be based on possibility
or speculation, and if an inference favorable to the claimant
can be reached only on the basis thereof, then the claimant
cannot recover. Paulsen v. State, 249 Neb. 112, 541 N.W.2d
636 (1996).
However, there was evidence that both experts were able to
give a credible evaluation of Visoso’s loss of earning capacity
if the place of Visoso’s injury was considered. Stricklett had
performed at least two analyses using the Schuyler area as the

VISOSO V. CARGILL MEAT SOLUTIONS 	289
Cite as 285 Neb. 272
hub community. Allowing Visoso the opportunity to prove his
loss of earning capacity based on the data of the community
where the injury occurred achieves the goal of the Act to com-
pensate employees for on-the-job injuries.
Allowing an undocumented worker to establish loss of
earning capacity based on data in the community where the
injury occurred reduces the incentive to hire undocumented
workers so as to avoid paying workers’ compensation ben-
efits. If an employer were able to end its obligation to the
impaired worker because no reliable data existed in the
undocumented worker’s country of origin, employers would
be encouraged to hire undocumented workers to avoid pay-
ing workers’ compensation benefits. This would result in an
employment situation of hire, fire, report, deport, and forget
the employee. This type of result conflicts with the purposes
of the Act.
If an undocumented worker returns to his or her country of
origin in good faith and there is sufficient and credible data to
establish proper foundation for a loss of earning capacity anal-
ysis, then the community of origin may be considered as the
hub community. Because no data existed for Visoso’s hub com-
munity in Mexico, then the place where the injury occurred,
Schuyler, should serve as the hub community.
There was evidence in the record that both experts were
able to make a credible determination of loss of earning power
using Schuyler as the hub community. Because of the lack of
credible data from Visoso’s hub community in Mexico, the
compensation court should have considered Visoso’s loss of
earning capacity based on Schuyler as the hub community.
Allowing such community to be considered would permit
Visoso to attempt to meet his burden to establish permanent
disability benefits.
CONCLUSION
Cargill petitioned to end payment of temporary total disabil-
ity. It had the burden of proof in establishing that Visoso had
reached maximum medical improvement. The compensation
court correctly determined that Cargill sustained its burden,
and we affirm the court’s conclusion on that issue.

290 	285 NEBRASKA REPORTS
Visoso retained the burden to prove his permanent disabil-
ity and the impairment of his earning capacity. Visoso had
returned to his country of origin, and the compensation court
concluded there was no credible evidence which could be
used to determine his loss of earning capacity in his new com-
munity. When no credible data exists for the community to
which the employee has relocated, the community where the
injury occurred can serve as the hub community. Therefore,
we remand the cause to the Workers’ Compensation Court
to allow Visoso to attempt to establish permanent impair-
ment and loss of earning capacity using Schuyler as the
hub community.
affirmed in part, and in part reVersed and
remanded for furtHer proCeedings.
Cassel, J., not participating.
larry blaser et al., appellees, V.
C ounty of madison, nebraska, a
politiCal subdiVision, appellant.
826 N.W.2d 554
Filed February 22, 2013. 	No. S-12-558.
1. Political Subdivisions Tort Claims Act: Appeal and Error. In actions brought
under the Political Subdivisions Tort Claims Act, an appellate court will not dis-
turb the factual findings of the trial court unless they are clearly wrong.
2. Negligence. The question whether a legal duty exists for actionable negligence is
a question of law dependent on the facts in a particular situation.
3. Judgments: Appeal and Error. When reviewing a question of law, an appel-
late court resolves the question independently of the conclusion reached by the
trial court.
4. Negligence: Appeal and Error. Whether a defendant breaches a duty is a ques-
tion of fact for the fact finder, which an appellate court reviews for clear error.
5. Statutes. Statutory interpretation presents a question of law.
6. Judges: Recusal: Waiver. A party is said to have waived his or her right to
obtain a judge’s disqualification when the alleged basis for the disqualification
has been known to the party for some time, but the objection is raised well after
the judge has participated in the proceedings.
7. Appeal and Error: Words and Phrases. Plain error is error uncomplained of at
trial and is plainly evident from the record and of such a nature that to leave it