Melton v. City of Holdrege , 309 Neb. 385 ( 2021 )


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  • Nebraska Supreme Court Online Library
    www.nebraska.gov/apps-courts-epub/
    07/16/2021 12:08 AM CDT
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    Nebraska Supreme Court Advance Sheets
    309 Nebraska Reports
    MELTON v. CITY OF HOLDREGE
    Cite as 
    309 Neb. 385
    Benjamin Melton, appellant, v.
    City of Holdrege, appellee.
    ___ N.W.2d ___
    Filed May 28, 2021.     No. S-20-721.
    1. Workers’ Compensation: Appeal and Error. A judgment, order, or
    award of the compensation court may be modified, reversed, or set aside
    only upon the grounds that (1) the compensation court acted without or
    in excess of its powers; (2) the judgment, order, or award was procured
    by fraud; (3) there is not sufficient competent evidence in the record to
    warrant the making of the order, judgment, or award; or (4) the findings
    of fact by the compensation court do not support the order or award.
    2. ____: ____. On appellate review, the factual findings made by the trial
    judge of the Workers’ Compensation Court have the effect of a jury ver-
    dict and will not be disturbed unless clearly wrong.
    3. ____: ____. An appellate court is obligated in workers’ compensation
    cases to make its own determinations as to questions of law.
    4. Workers’ Compensation. Neb. Rev. Stat. § 48-121(3) (Reissue 2010)
    generally provides the manner by which a worker is compensated for the
    loss or loss of use of a scheduled member.
    5. Damages. As a general rule, a party may not have double recovery for a
    single injury.
    6. Workers’ Compensation: Attorney Fees: Penalties and Forfeitures:
    Time. Neb. Rev. Stat. § 48-125 (Cum. Supp. 2020) authorizes a
    50-­percent penalty payment for waiting time involving delinquent pay-
    ment of compensation and an attorney fee, where there is no reasonable
    controversy regarding an employee’s claim for workers’ compensation.
    7. Workers’ Compensation: Attorney Fees: Words and Phrases. A “rea-
    sonable controversy” exists (1) if there is a question of law previously
    unanswered by the Supreme Court, which question must be answered
    to determine a right or liability for disposition of a claim under the
    Nebraska Workers’ Compensation Act, or (2) if the properly adduced
    evidence would support reasonable but opposite conclusions by the
    compensation court about an aspect of an employee’s claim, which
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    Nebraska Supreme Court Advance Sheets
    309 Nebraska Reports
    MELTON v. CITY OF HOLDREGE
    Cite as 
    309 Neb. 385
    conclusions affect allowance or rejection of an employee’s claim, in
    whole or in part.
    8. Workers’ Compensation: Words and Phrases. Whether a reasonable
    controversy exists under Neb. Rev. Stat. § 48-125 (Cum. Supp. 2020) is
    a question of fact.
    9. Workers’ Compensation. Whether an injured worker is entitled to
    vocational rehabilitation is ordinarily a question of fact to be determined
    by the compensation court.
    10. ____. A workers’ compensation award cannot be based on mere possibil-
    ity or speculation.
    Appeal from the Workers’ Compensation Court: Dirk V.
    Block, Judge. Affirmed.
    Todd D. Bennett, of Rehm, Bennett, Moore & Rehm, P.C.,
    L.L.O., for appellant.
    David A. Dudley and Micah C. Hawker Boehnke, of Baylor
    Evnen, L.L.P., for appellee.
    Heavican, C.J., Miller-Lerman, Cassel, Funke, Papik,
    and Freudenberg, JJ.
    Cassel, J.
    I. INTRODUCTION
    Benjamin Melton sought workers’ compensation benefits
    after an injury resulted in a below-the-knee amputation of his
    leg. The trial court awarded compensation for a loss of foot and
    a partial loss of leg function. On appeal, Melton challenges the
    court’s determination of his loss and its decision to not award
    a penalty regarding permanent loss of his foot or vocational
    rehabilitation. Because the court’s factual findings were not
    clearly wrong and we find no error of law, we affirm.
    II. BACKGROUND
    1. Injury and Disability Payments
    The City of Holdrege (City) employed Melton as a journey­
    man lineman. In October 2011, Melton sustained a work-
    related injury resulting in an amputation of his left leg a few
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    Nebraska Supreme Court Advance Sheets
    309 Nebraska Reports
    MELTON v. CITY OF HOLDREGE
    Cite as 
    309 Neb. 385
    inches below the knee. In December, he was fitted for a pros-
    thesis, but attaining a good fit was a recurring problem. In
    March 2012, Melton returned to his position with the City. He
    was able to perform at least some aspects of his job. Melton
    did not feel that he could perform his lineman duties without
    the prosthesis, having tried to do so. While performing his job
    duties, he encountered issues with the use of his prosthesis,
    such as shrinking, swelling, sweating, and obtaining a good
    fit. In 2014, Melton underwent a “stump revision” surgery that
    helped him obtain a better fit with his prosthetic leg, though he
    still encountered pain and discomfort.
    From the date of the accident until Melton’s return to work,
    the City paid 23 weeks of temporary total disability benefits.
    Between March 14, 2012, and March 12, 2016, the City paid
    temporary partial disability benefits for 833⁄ 7 weeks. In May
    2017, Melton provided the City with a record from his physi-
    cian stating that he had reached maximum medical improve-
    ment (MMI) and the City paid permanent partial disability
    benefits based on a 100-percent loss of Melton’s foot and an
    additional 5-percent loss to his leg. There is no dispute that the
    City paid all medical expenses under the fee schedule and all
    temporary disability benefits.
    2. Petition and Trial
    In May 2017, Melton filed a petition seeking workers’ com-
    pensation benefits. He requested temporary and permanent dis-
    ability benefits, payment of medical expenses, and vocational
    rehabilitation benefits. He also asked for waiting-time penal-
    ties, attorney fees, and interest.
    Three years later, the workers’ compensation court con-
    ducted a trial. The evidence established that in 2018, Melton
    secured a new position as a corrosion technician with a dif-
    ferent employer. He remained in that employment at the time
    of trial. Melton testified that he continues to suffer pain in his
    knee, that his knee is weak, and that he does not have much use
    of his leg without employing a prosthetic device. He cannot
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    MELTON v. CITY OF HOLDREGE
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    309 Neb. 385
    stand for long periods of time or bear weight on the left leg
    without the prosthetic device. He testified that he would not
    even try to perform his job duties without his prosthesis.
    The court received conflicting evidence concerning an
    impairment rating for Melton. In an April 2017 record, a doctor
    determined that Melton’s total combined whole person impair-
    ment was 40 percent and the “WP Impairment Con­verted to
    Lower Extremity” was 32 percent. On the other hand, a differ-
    ent doctor opined within a reasonable degree of medical cer-
    tainty that Melton’s correct impairment rating was a 70-percent
    permanent partial impairment of his left lower extremity.
    The evidence regarding MMI differed, also. A February
    2012 medical record stated, “Plan for MMI at one year post
    injury.” In an April 2017 record, a doctor stated that Melton
    had “reached a medically stable point in time.”
    3. Award
    The court awarded Melton future medical care and perma-
    nent disability benefits. It rejected Melton’s argument that he
    was entitled to an award for the loss of each toe on his left
    foot in addition to the loss of that foot. Interpreting Neb. Rev.
    Stat. § 48-121(3) (Reissue 2010), the court determined that
    Melton’s amputation below the knee entitled him to statutory
    benefits for 150 weeks. The court found credible Melton’s tes-
    timony regarding his limitations and retained use of his leg. It
    concluded that Melton had not lost all functional use of his left
    leg, but that “his loss of thigh strength and atrophy combined
    with his knee pain have reduced the function of his leg beyond
    the loss of his foot.” The court found that Melton suffered a
    20-percent loss of function to his leg, entitling him to 43 weeks
    of disability benefits. Thus, the court awarded a combined total
    of 193 weeks of compensation.
    The court recognized the parties’ disagreement as to when
    the City should have begun making periodic permanent dis-
    ability payments for the amputation of Melton’s left foot.
    It looked for an explanation concerning the City’s delay in
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    MELTON v. CITY OF HOLDREGE
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    309 Neb. 385
    paying for the loss of Melton’s foot and stated that “[t]he dif-
    fering dates of MMI by [Dr. Dennis] McGowan (2012) and
    [Dr. Bryan] Scheer (2017), when combined with the unan-
    swered question of when [the City] received McGowan’s opin-
    ion, create a factual controversy, if having a medical opinion
    is required.” The court declared that whether MMI must be
    proved by expert medical opinion was an unanswered question
    of law, but it concluded that an expert medical opinion was not
    required where temporary disability benefits are discontinued
    before MMI. The court found, as a matter of law, that in an
    uncontested case involving the amputation of a hand, arm,
    foot, or leg, payment for permanent disability for the amputa-
    tion should begin immediately at the discontinuance of tempo-
    rary disability benefits or MMI, whichever occurs first. Based
    on that finding, the court determined that Melton’s entitlement
    to payment for the amputation of his foot began on June 17,
    2012, when he returned to full-time work and his temporary
    disability benefits were discontinued.
    The court denied Melton’s requests for a waiting-time pen-
    alty and vocational rehabilitation. In declining to award a
    penalty, the court found that “a reasonable controversy exists
    regarding an unanswered question of law” as to whether the
    discontinuance of temporary disability payments triggers pay-
    ment of permanent disability payments in a case involving
    an amputation. Because Melton had secured substantial gain-
    ful employment, the court denied his request for vocational
    rehabilitation.
    Melton filed a timely appeal, which we moved to our
    docket. 1
    III. ASSIGNMENTS OF ERROR
    Melton assigns that the court erred in (1) failing to evaluate
    his loss and the loss of use of his leg without the assistance
    of his prosthetic device in determining impairment; (2) failing
    1
    See Neb. Rev. Stat. § 24-1106(3) (Cum. Supp. 2020).
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    MELTON v. CITY OF HOLDREGE
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    309 Neb. 385
    to award him for the total loss of use of his leg; (3) failing to
    award him consecutive disability benefits for the total loss of
    all his toes, his foot, and use of his leg pursuant to § 48-121(3);
    (4) failing to award waiting-time penalties, attorney fees, and
    interest for late payment associated with the total loss of his
    foot; and (5) failing to find that he was entitled to an award of
    vocational rehabilitation services for satisfying criteria of Neb.
    Rev. Stat. § 48-162.01(3) (Reissue 2010) despite no further
    services being requested or necessary at the time of trial.
    IV. STANDARD OF REVIEW
    [1] A judgment, order, or award of the compensation court
    may be modified, reversed, or set aside only upon the grounds
    that (1) the compensation court acted without or in excess of
    its powers; (2) the judgment, order, or award was procured
    by fraud; (3) there is not sufficient competent evidence in the
    record to warrant the making of the order, judgment, or award;
    or (4) the findings of fact by the compensation court do not
    support the order or award. 2
    [2] On appellate review, the factual findings made by the
    trial judge of the Workers’ Compensation Court have the
    effect of a jury verdict and will not be disturbed unless
    clearly wrong. 3
    [3] An appellate court is obligated in workers’ compensation
    cases to make its own determinations as to questions of law. 4
    V. ANALYSIS
    1. Determination of Loss
    Melton challenges three aspects of the court’s determination
    of his loss. First, he argues that in determining his impairment,
    the court failed to evaluate loss of use of his left leg with-
    out the prosthesis attached. Second, Melton contends that the
    2
    Rogers v. Jack’s Supper Club, 
    308 Neb. 107
    , 
    953 N.W.2d 9
     (2021).
    3
    Parks v. Hy-Vee, 
    307 Neb. 927
    , 
    951 N.W.2d 504
     (2020).
    4
    Rogers v. Jack’s Supper Club, 
    supra note 2
    .
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    MELTON v. CITY OF HOLDREGE
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    309 Neb. 385
    court should have awarded him compensation for the total loss
    of use of his leg. Third, Melton claims that the court erred in
    failing to award him consecutive disability benefits for a total
    loss of all his toes, his foot, and use of his left leg. Before
    addressing these challenges, we review statutory language cen-
    tral to our analysis.
    [4] Section 48-121(3) generally provides the manner by
    which a worker is compensated for the loss or loss of use of
    a scheduled member. 5 Loss of a foot or leg are examples of
    scheduled member injuries. Under § 48-121(3), compensa-
    tion for the loss of a foot lasts for 150 weeks while compen-
    sation for loss of a leg extends for 215 weeks. The statute
    specifies that “amputation between the knee and the ankle
    shall be considered as the equivalent of the loss of a foot,”
    while “amputation at or above the knee shall be considered as
    the loss of a leg.” 6 Under § 48-121(3), Melton’s amputation is
    considered a loss of a foot.
    Section 48-121(3) also touches on loss of use of a scheduled
    member. A permanent total loss of the use of a leg is consid-
    ered as the equivalent of the loss of such leg. 7 For a permanent
    partial loss of the use or function of a leg, “the compensation
    shall bear such relation to the amounts named in such subdivi-
    sion as the disabilities bear to those produced by the injuries
    named therein.” 8 We now turn to Melton’s arguments.
    (a) Consideration of Prosthesis
    Melton argues that the court erred by determining the loss of
    use of his left leg with the prosthetic device rather than without
    the use of a prosthesis. We disagree that it did so.
    The court’s award recognized Melton’s limitations and use
    of a prosthesis. It acknowledged Melton’s testimony that he
    5
    Smith v. Mark Chrisman Trucking, 
    285 Neb. 826
    , 
    829 N.W.2d 717
     (2013).
    6
    § 48-121(3).
    7
    See id.
    8
    Id.
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    MELTON v. CITY OF HOLDREGE
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    would have no functional use of his leg without the prosthe-
    sis and that the function of his leg was reduced by his loss of
    thigh strength, atrophy, and knee pain. But the court found that
    Melton “has not lost all functional use of his left leg.”
    The court’s factual finding is not clearly wrong. The court
    explained, “The retained strength and function in the knee and
    thigh, although reduced, enable [Melton] to walk, climb steps,
    navigate uneven terrain, and generally support the use of the
    prosthesis below the knee.” This comports with Melton’s tes-
    timony regarding what he could do without his prosthesis: he
    could “pick up [his left] leg . . . waist high,” crawl up stairs,
    climb ladders (although Melton qualified that doing so would
    be “tough” and not “very safe”), and navigate uneven terrain
    by “crawl[ing] or scoot[ing] or slid[ing].” Because the court
    did not determine Melton’s loss based on use of his prosthesis,
    this assignment of error lacks merit.
    (b) Total Loss of Use of Leg
    Melton next argues that the court should have awarded him
    for a total loss of use of his left leg. He claims that without the
    prosthesis, his leg is a useless object for all practical intents and
    purposes. But Melton’s left leg was not useless—he remained
    able to bend his knee and support weight on the residual limb.
    As discussed above, the court’s finding that Melton had not
    lost all functional use of his leg was not clearly wrong.
    Melton relies on a Pennsylvania test mentioned by the
    Nebraska Court of Appeals in one of its decisions. In Jacob
    v. Columbia Ins. Group, 9 an employee suffered such extensive
    injuries to his left hand that doctors considered amputating
    it, but were ultimately able to save part of it. The Court of
    Appeals found Pennsylvania’s “‘practical intents and purposes’
    test” to be persuasive on the question of whether the employee
    suffered such disability to his hand that the hand served no
    real purpose. 10 The Court of Appeals found as a matter of
    9
    Jacob v. Columbia Ins. Group, 
    2 Neb. App. 473
    , 
    511 N.W.2d 211
     (1994).
    10
    
    Id. at 487,
     
    511 N.W.2d at 219
    .
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    law that the employee’s left hand was useless and that he suf-
    fered a 100-percent disability to his hand.
    Using that test, Melton argues that he has sustained a
    100-percent loss of use of his left leg for all practical intents
    and purposes. However, the court’s finding that Melton retained
    enough strength in his left leg to use the prosthetic device is
    supported by the record. We cannot find that Melton’s left leg
    was useless.
    Melton next contends that the effects of his amputation
    were not usual, logical, and expected. Long ago, in consider-
    ing whether an employee who sustained an injury to his thumb
    should also be compensated on the basis of an injury to the
    hand, we observed that injuries to the thumb and to the hand
    were separate scheduled injuries under § 48-121(3) and that we
    had “consistently held that where the effect of an injury to a
    finger only is the usual and natural one, compensation cannot
    be allowed for loss of use of the hand.” 11 In Jacob, the Court
    of Appeals applied the principle for loss of or injury to any of
    the scheduled members listed in § 48-121(3), stating that “so
    long as the injury is only to a lesser member, the scheduled
    compensation for loss of or injury to that member controls,
    unless there is an unusual and unexpected result to the greater
    members.” 12 Here, the trial court found that Melton suffered
    an additional 20-percent loss of function in his leg that went
    beyond what would have otherwise been expected after ampu-
    tation of his left leg below the knee. We find no clear error in
    this regard.
    (c) Failure to Make Consecutive Awards
    Melton further argues that the court erred in failing to award
    him consecutive amounts of disability benefits for the loss
    11
    Herold v. Constructors, Inc., 
    201 Neb. 697
    , 701, 
    271 N.W.2d 542
    , 544
    (1978).
    12
    Jacob v. Columbia Ins. Group, 
    supra note 9,
     
    2 Neb. App. at 484,
     
    511 N.W.2d at 217
    .
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    of his five toes, the loss of his left foot, and the total loss of his
    left leg. He relies on the following statutory language:
    In any case in which there is a loss or loss of use
    of more than one member or parts of more than one
    member set forth in this subdivision, but not amounting
    to total and permanent disability, compensation benefits
    shall be paid for the loss or loss of use of each such
    member or part thereof, with the periods of benefits to run
    consecutively. 13
    [5] Melton’s argument is refuted by statutory language found
    in the same paragraph. As we mentioned above, § 48-121(3)
    explicitly states that a below-the-knee amputation is the equiv-
    alent of a loss of a foot. It is obvious that such a loss would
    include a loss of the toes on the foot, but the Legislature lim-
    ited the loss to the foot. This is in line with the general rule
    that a party may not have double recovery for a single injury. 14
    For the reasons discussed above, the trial court’s find-
    ing that Melton did not suffer a total loss of use of his leg
    was not clearly wrong. The court appropriately compensated
    Melton for the functional loss of his leg that was not already
    accounted for in the compensation for the loss of his foot.
    Being mindful that double recovery is disallowed and that loss
    of a leg is compensated for 215 weeks, the court was careful to
    award loss of use benefits for the leg that when coupled with
    the 150-week award for loss of a foot, would not exceed 215
    weeks. We affirm the court’s award of a combined total of 193
    weeks of compensation.
    2. Penalty, Interest, and Attorney Fees
    Melton argues that the court erred by failing to award a
    waiting-time penalty, interest, and attorney fees with respect
    to late payment of permanent disability benefits for the loss of
    13
    § 48-121(3).
    14
    See D’Quaix v. Chadron State College, 
    272 Neb. 859
    , 
    725 N.W.2d 558
    (2007).
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    his foot. He does not quarrel with the trial court’s conclusion
    regarding when permanent disability benefits become due for
    an amputation. Rather, he challenges only the court’s factual
    finding that a reasonable controversy existed.
    Here, the parties’ disagreement centered on when the City
    should have made payments for the permanent loss of Melton’s
    foot. Melton argued that payment was due when his entitle-
    ment to temporary disability ceased. On the other hand, the
    City asserted that permanency benefits should be paid only
    after MMI has been reached and that it timely paid such
    benefits within 30 days of being provided proof that Melton
    had reached MMI. The City contends that this disagreement
    amounted to a reasonable controversy.
    [6,7] Neb. Rev. Stat. § 48-125 (Cum. Supp. 2020) authorizes
    a 50-percent penalty payment for waiting time involving delin-
    quent payment of compensation and an attorney fee, where
    there is no reasonable controversy regarding an employee’s
    claim for workers’ compensation. 15 A “reasonable controversy”
    exists (1) if there is a question of law previously unanswered
    by the Supreme Court, which question must be answered to
    determine a right or liability for disposition of a claim under
    the Nebraska Workers’ Compensation Act, or (2) if the prop-
    erly adduced evidence would support reasonable but opposite
    conclusions by the compensation court about an aspect of an
    employee’s claim, which conclusions affect allowance or rejec-
    tion of an employee’s claim, in whole or in part. 16
    [8] Whether a reasonable controversy exists under § 48-125
    is a question of fact. 17 The compensation court determined
    that a reasonable controversy existed due to “an unanswered
    question of law” regarding the timing of permanent disabil-
    ity payments. Our case law is clear that temporary disability
    benefits are discontinued at the point of MMI and that when
    15
    Picard v. P & C Group 1, 
    306 Neb. 292
    , 
    945 N.W.2d 183
     (2020).
    16
    See 
    id. 17
    Id.
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    an injured employee reaches MMI, any remaining disability is
    permanent. 18 We have also declared that MMI is not reached
    until all of the injuries resulting from an accident have reached
    maximum medical healing and that our law does not provide
    for partial MMI. 19 In this case, the City last paid tempo-
    rary partial disability benefits in March 2016, which suggests
    Melton had reached MMI. That Melton had reached MMI was
    made clear in a May 2017 letter in which Melton’s counsel
    informed the City that “Melton is now at MMI for the remain-
    ing impairment for the injury to his knee and leg.” Ten days
    later, the City mailed a check for the 100-percent loss of a foot.
    In finding a reasonable controversy, the court explained that
    “[o]ur appellate courts have not ruled that the discontinuance
    of temporary disability payments triggers payment of perma-
    nent disability payments in a case involving an amputation.”
    We agree that this was an unanswered question. Accordingly,
    we find no clear error in the compensation court’s finding that
    a reasonable controversy existed.
    3. Vocational Rehabilitation
    Finally, Melton faults the court for not awarding vocational
    rehabilitation benefits. He emphasizes the importance of his
    prosthesis and of coworkers’ assistance in his ability to return
    to work. Melton argues that the court was “required to enter an
    award of vocational services as [he] has satisfied criteria a, b,
    c and d as set forth in [§] 48-162.01.” 20 Melton misconstrues
    the statute.
    Under § 48-162.01(3), an employee who, due to an injury,
    “is unable to perform suitable work for which he or she
    has previous training or experience, . . . is entitled to such
    18
    See Gardner v. International Paper Destr. & Recycl., 
    291 Neb. 415
    , 
    865 N.W.2d 371
     (2015).
    19
    See Rodriguez v. Hirschbach Motor Lines, 
    270 Neb. 757
    , 
    707 N.W.2d 232
    (2005).
    20
    Brief for appellant at 30.
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    vocational rehabilitation services, including job placement and
    training, as may be reasonably necessary to restore him or her
    to suitable employment.” The statute sets forth priorities to “be
    used in developing and evaluating a vocational rehabilitation
    plan.” 21 The priorities are contained in a list from (a) to (e),
    which are listed in order from lower priority to higher priority.
    Section 48-162.01(3) specifies that no higher priority may be
    used unless the lower priorities would be unlikely to result in
    suitable employment for the injured employee.
    [9] Whether an injured worker is entitled to vocational
    rehabilitation is ordinarily a question of fact to be determined
    by the compensation court. 22 In declining to award vocational
    rehabilitation, the court relied on Melton’s testimony that he
    had secured, and was capable of performing, substantial gain-
    ful employment. Although Melton believed he would need
    vocational rehabilitation if he became unable to continue his
    present employment, the court stated that it could not engage
    in speculation or give advisory opinions.
    [10] We find no clear error in the court’s decision to deny
    vocational rehabilitation benefits. The evidence establishes that
    Melton is able to perform suitable work for which he has previ-
    ous training or experience. He testified that he felt comfortable
    with his ability to continue performing the essential functions
    of his job. Although Melton desired an award of vocational
    rehabilitation in case he needed services in the future, a work-
    ers’ compensation award cannot be based on mere possibility
    or speculation. 23
    To the extent Melton is arguing he should be entitled to
    vocational rehabilitation based on a future loss of his existing
    employment but without an increase in his disability, this argu-
    ment invites us to provide an advisory opinion. We decline to
    do so.
    21
    § 48-162.01(3).
    22
    Bower v. Eaton Corp., 
    301 Neb. 311
    , 
    918 N.W.2d 249
     (2018).
    23
    See 
    id.
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    VI. CONCLUSION
    We find no clear error in the court’s determination that
    Melton did not suffer a total loss of his leg, but, rather, suffered
    a 20-percent loss of function to his leg that went beyond what
    would have been otherwise expected following amputation
    of his leg below the knee. We cannot say that the court was
    clearly wrong in finding the existence of a reasonable contro-
    versy regarding timing of payments for the loss of Melton’s
    foot. Finally, because Melton was performing suitable work
    for which he had previous training or experience, the court did
    not err in denying vocational rehabilitation benefits. We affirm
    the judgment.
    Affirmed.
    Stacy, J., not participating.