Nebraska Court of Appeals Reexamines “Residual Impairment Test”

The Nebraska Court of Appeals’ ruling in Burnett v. Tyson Fresh Meats, 21 Neb. App. 910, 845 N.W.2d 297 (2014), serves as a helpful reminder of the significance of the “residual impairment test.” The test for determining whether a disability is to a scheduled member or to the body as a whole is the location of the residual impairment, not the situs of the injury. Ideen v. American Signature Graphics, 257 Neb. 82, 595 N.W.2d 233 (1999). The statutory scheme found in Neb. Rev. Stat. §48-121 compensates impairments of the body as a whole in terms of loss of earning power or capacity, but compensates impairments of scheduled members on the basis of loss of physical function. Nordby v. Gould, Inc., 213 Neb. 372, 329 N.W.2d 118 (1983).

In Burnett v. Tyson Fresh Meats, Burnett slipped and fell on his hip while working for Tyson, causing an injury which necessitated a total hip replacement. The trial court found that due to the nature of the injury and surgery, the injury qualified as a whole body injury and not as a scheduled member injury, but also found that there was no evidence of any loss of earning capacity, so it denied an award of permanent partial disability benefits. Burnett appealed, arguing the trial court failed to apply the appropriate legal test for determining whether a disability is to a scheduled member or the body as a whole.

The Burnett Court cited Jeffers v. Pappas Trucking, 198 Neb. 379, 253 N.W.2d 30 (1977), in which an employee underwent a total hip replacement and subsequently had severe pain in his beltline and back. The Jeffers Court found that because his injury was to both the ball and socket of his hip joint – requiring a total hip replacement, and not merely a replacement of the head of the femur – and that since the pain was at his beltline and back, areas other than the site of his hip or leg injury, it compelled a whole body award. The Burnett Court also cited Ideen v. American Signature Graphics, supra, in which the trial court found that Ideen did not suffer a whole body injury as to the injury to her right arm. The Nebraska Supreme Court found that while the residual impairment test did not distinguish between leg and arm injuries and an injury to the arm could result in an impairment to the body as a whole, the evidence in Ideen’s case was conflicting and the trial court did not err in relying on one physician’s opinion over another’s in determining that Ideen did not sustain a whole body injury.

Ultimately, the Burnett Court upheld the trial court’s conclusion that Burnett’s injury was to the body as a whole. It held that “the evidence clearly indicates that Burnett injured his hip and underwent a total hip replacement, and as such, the injury was not limited to his leg and was not a scheduled member injury pursuant to §48-121(3).”

For more information about the “residual impairment test,” please contact Sara Hughes at shughes@baylorevnen.com or any of the Baylor Evnen workers’ compensation attorneys at (402) 475-1075.