Baylor Evnen Attorneys Obtain Favorable Nebraska Court of Appeals Decision on Issues of Credits for TPD

by | Aug 16, 2017

The Nebraska Court of Appeals recently decided the case of Jurgenson v. International Paper Company, where Baylor Evnen Attorneys, Timothy Clarke and Thomas Shires, represented the interests of International Paper Company. In the August 1, 2017 decision, the Court of Appeals entered a favorable ruling, significantly reducing the amount of benefits the trial court found the Plaintiff was entitled to, while also clarifying the rule regarding credit for weeks of Temporary Partial Disability paid in body as a whole cases.

The Plaintiff initially sustained an injury to her ankle, a scheduled member injury. The Plaintiff subsequently received a rating and was placed at MMI on June 24, 2010. Permanent partial disability benefits were paid based upon the scheduled member impairment. However, the Plaintiff continued to experience pain and was eventually diagnosed with complex regional pain syndrome. In 2014, the Plaintiff received a spinal cord stimulator. The SCS was causally related to the original work injury and the subsequent CRPS diagnosis. The plaintiff received additional restrictions associated with the SCS and the question became whether the procedure and resulting restrictions converted the original member injury to a body as a whole injury. The parties also disputed the entitlement to additional PPD and the nature and extent of the credit the defendant should receive for previous temporary disability benefits paid.

In light of Plaintiff’s CRPS and the installation of the SCS, the trial court found that Plaintiff sustained an injury to her body as a whole and was entitled to permanent benefits based on her loss of earning capacity. The trial court found that Plaintiff sustained a 50% LOEC, but also awarded a 50% temporary LOEC from 2010-2014, the period between the initial MMI and the MMI for the SCS, in addition to the periods of TTD benefits. As a result, the trial court held that Plaintiff was entitled to approximately 200 weeks of temporary partial disability benefits based on the 50% temporary LOEC, 93 weeks of TTD benefits and 207 weeks of permanent benefits based on the 50% LOEC. The 207 weeks of PPD benefits based on the 50% LOEC was based on taking a credit for the 93 weeks of TTD benefits, but not any credit for the 200 weeks of temporary partial disability.

On appeal, Defendant argued that the trial court erred by awarding temporary LOEC benefits from 2010-2014, when the evidence was clear that the Plaintiff was at MMI on 6/24/2010, four years before the implantation of the SCS. International Paper Company also argued that even if the 50% LOEC from 2010-2014 was considered temporary partial disability benefits, then Defendant should receive a credit against the 300 week period of PPD.

The Court of Appeals agreed with Defendant, finding that the court improperly designated the benefits between 2010 and 2014 as temporary partial disability when they should have been designated as permanent partial disability. However, the court also determined that the misclassification was harmless error because the defendant was entitled to a credit for the weeks of temporary partial disability against the 300 weeks of PPD. In so ruling, the court clarified employers are entitled to take a credit for the weeks of TPD paid against the weeks of PPD for body as a whole cases. Unfortunately, the case was unpublished so it is not binding on other Court cases. Nevertheless, the decision was ultimately favorable for the employer as the court confirmed that they are entitled to take a credit for 200 weeks of benefits paid prior to the final determination of loss of earning power. For questions regarding Nebraska workers compensation, please contact attorneys Tim Clarke or Tom Shires at 402-475-1075.