Pursuant to Neb. Rev. Stat. §48-121(3), if an employee sustains a loss or loss of use of more than one scheduled member or parts of more than one scheduled member, and the loss or loss of use results in at least a 30% loss of earning capacity (LOEC), the compensation court can determine the employee’s LOEC and award benefits accordingly, rather than awarding benefits based on the schedule. On May 9, 2014, the Nebraska Supreme Court made it easier for Plaintiffs to establish LOEC by finding that Plaintiffs do not need to offer expert evidence of permanent restrictions to their scheduled members in order to be entitled to an assessment of LOEC.
In Rodgers v. Nebraska State Fair, 288 Neb. 92 (2014), Rodgers sustained injuries to both knees arising out of and in the course of his employment with the Nebraska State Fair. Rodgers offered evidence that he sustained a 40% impairment to his right knee and was permanently restricted from climbing, squatting, kneeling, and prolonged walking and standing due to the right knee injury. He also offered evidence that he sustained a 2% impairment to his left knee, but was not assigned any permanent physical restrictions for the left knee injury. The Workers’ Compensation Court concluded that in order to perform a loss of earning capacity calculation under Neb. Rev. Stat. §48-121(3), there must be an expert opinion of permanent physical restrictions as to each injured scheduled member, and therefore found that Rodgers was not entitled to an assessment of LOEC.
The Nebraska Supreme Court reversed the Workers’ Compensation Court’s award, finding that “the appropriate place to scrutinize restrictions… under §48-121(3) is at the point of the loss of earnings capacity analysis.” The Court noted that it has “frequently observed that earning power is not synonymous with either wages or loss of physical function.” Thus, the Court further noted, “we cannot say that the absence of expert proof of functional loss prevents the performance of a loss of earning capacity calculation.” In other words, Plaintiffs do not need to prove permanent restrictions to their scheduled members to be entitled to an assessment of LOEC.
It is reasonable to conclude from the Rodgers opinion that permanent loss or loss of use
in the form of a permanent impairment to each extremity from an expert is still required. To
recover based upon Neb. Rev. Stat. §48-121(3), the employee still has to show that benefits
payable per the schedule do not adequately compensate the employee and that the accident
resulted in a loss of earning power of 30% or more. For more information on how this case affects employers, please contact a Nebraska Workers’ Compensation Attorney at (402) 475-1075.