NEBRASKA SUPREME COURT HOLDS MULTIPLE INJURIES ALONG A SINGLE EXTREMITY ARE A LOSS TO “MORE THAN ONE MEMBER” UNDER § 48-121(3)

In Paulina Espinoza v. Job Source, USA, Espinoza injured her right wrist and right elbow after falling at work. She alleged that, because she suffered a “loss or loss of use of more than one member or parts of more than one member,” the Workers’ Compensation Court should consider awarding her benefits based on her loss of earning capacity, as is permitted for multiple member injuries in a single accident under Neb. Rev. Stat. § 48-121(3), rather than per the schedule of benefits for her upper right extremity. The trial court disagreed and held that an employee who sustains multiple injuries along the same extremity (in Espinoza’s case, a single arm) sustains an injury to only one member.

However, on February 17, 2023, the Nebraska Supreme Court reversed the trial court decision and held that an employee with multiple injuries along the same extremity has suffered a “loss or loss of use of more than one member” for purposes of Neb. Rev. Stat. § 48-121(3). The practical effect of this holding is that as long as an employee’s injuries (a) to an upper extremity involve more than the partial loss of use of one finger, or (b) to a lower extremity involve more than the partial loss of use of one toe, the employee will be deemed, as a matter of law, to have suffered a “loss or loss of use of more than one member” for purposes of Neb. Rev. Stat. § 48-121(3).

This decision is likely to result in requests for a loss of earning capacity evaluation in many cases involving an arm or leg where the employee’s complaints involve more than just one finger or toe. Trial judges will be obligated to order an evaluation of an employee’s loss of earning capacity unless the employer or insurer can persuade a trial judge that:

a) The schedule of benefits “adequately compensates” the employee; or

b) An accident involving an upper extremity results in no more than a partial loss of use of one finger, or an accident involving a lower extremity results in no more than a partial loss of use of one toe; or

c) The loss of use will not result in at least a permanent loss of earning capacity of 30 percent.

In cases with amputations involving more than one finger or one toe, as a matter of law the employee will be deemed to have suffered a “loss or loss of use of more than one member or parts of more than one member.” Further, it is likely that trial judges in these cases will find that the remaining requirements above are met, and will order the employer or insurer to pay the costs of a loss of earning capacity evaluation.

Note that, while not every case involving claims of multiple injuries to different parts of one extremity will entitle the employee to a loss of earning capacity evaluation, or an entitlement to permanent benefits based on the employee’s loss of earning capacity, the practical effect of the decision is that average cost of resolving such cases will likely increase.

If you have questions about how this decision may affect your case, feel free to contact any of our workers’ compensation lawyers at (402) 475-1075.