by | Jul 13, 2020

On behalf of various clients and Nebraskans for Workers’ Compensation Equity and Fairness (“NWCEF”), Baylor Evnen prepared and filed an amicus brief, or “friend of the court” brief, in the Nebraska Supreme Court, in a case involving an issue of great importance to Nebraska employers. The Supreme Court recently released its decision in Picard vs. P&C Group, No. S-18-207 (July 2020), which reflected the arguments the Baylor Evnen team made on behalf of employers and insurers in Nebraska.

Baylor Evnen was not involved in the underlying case, in which the Court of Appeals affirmed a trial court award of 75% loss of earning capacity for an earlier injury suffered by the employee, and a 55% loss of earning capacity as a result of a second injury suffered by the employee while she was working for the same employer. The Court of Appeals held that “apportionment”—reducing an award of disability as a result of a subsequent injury based on an employee’s receipt of disability benefits from a prior injury—was not a valid defense in Nebraska because Nebraska does not have a specific apportionment statute. As such, the Court of Appeals held that it was proper to assess the loss of earning capacity from the second injury based on the legal fiction that the first injury did not exist. Because that determination would increase the costs of the system for Nebraska employers and insurers, Baylor Evnen sought and received permission from the Supreme Court to submit arguments why the Court of Appeals decision should be reversed.

Although the Supreme Court agreed with the Court of Appeals that actual apportionment does not exist in Nebraska (because Nebraska has no statute providing for it), it agreed with the arguments Baylor Evnen made that it was error for the compensation court and the Court of Appeals to disregard the employee’s loss of earning capacity from the first accident when assessing her loss of earning capacity from the second. The Supreme Court agreed, holding that the employee’s “earning power after the subsequent injury cannot be accurately assessed without considering her disability from the first injury.”

Though the decision leaves many questions unanswered, in our opinion it is favorable to employers. It seems to make clear that in successive injury cases where an employee’s entitlement to permanent disability is based on the employee’s loss of earning capacity, the trial court must take into consideration the disability the employee had from earlier injuries, and may not assess the disability from subsequent injuries as if the employee had never been injured before.

What exactly that means in any given case is unclear. We expect this decision will spawn a series of trial court decisions and eventually one or more appellate decisions, all of which will provide further guidance. But for now, it is certainly a favorable development that Nebraska employers retain a basis to argue that an employee’s permanent disability from subsequent injuries can’t be made in a vacuum, and must take into consideration that the employee had been previously injured and compensated for it. But for the holding in this decision, disability awards in successive injury cases would cost Nebraska employers more.

For questions regarding this case or Nebraska Workers’ Compensation law, please don’t hesitate to contact one of Baylor Evnen’s workers’ compensation attorneys.