Supreme Court Issues Reminder that Claimant’s Testimony Alone is Sufficient to Support Extent of Disability Determination

A decision of the Nebraska Supreme Court issued on Friday serves as a reminder that a claimant’s testimony may serve as the sole basis to support an award as to the extent of the claimant’s disability for a compensable injury.  In  Tchikobava v. Albatross Express, 293 Neb. 223, ___ N.W.2d ___ (2016), the trial court refused to award temporary total disability for a 3 ½ year period because there were no medical records proving that the claimant was seeking medical care, nor medical records to verify the nature and extent of the claimant’s disability during that period.  The claimant testified that during that period he was in pain which made it difficult for him to move such that he did not try to apply for employment, and he continued seeking medical care.   The Supreme Court reversed the denial of temporary total disability benefits for the 3 ½ year period and remanded the issue back to the trial court to provide an explanation which forms the basis for its denial of temporary total disability benefits where the claimant’s testimony was that he was totally disabled during that period.  In doing so, the Supreme Court noted that “a compensation court may refuse to follow uncontradicted evidence in the record, but when it does so, its reasons for rejecting the only evidence in the record should appear—e.g., that the testimony was inherently improbable, or so inconsistent as to be incredible, that the witness was interested, or that the witness’ testimony on the point at issue was impeached by falsity in his statements on other matters. Unless some explanation is furnished for the disregard of all the uncontradicted testimony or other evidence in the record, the [compensation court] may find its award reversed as arbitrary and unsupported. This sometimes occurs when the [compensation court] denies compensation on a record that contains nothing but testimony favorable to the claimant, with no indication whether all or part of the testimony was disbelieved, and if so, why.”

Thus, this decision serves as a good reminder that even if there are no opinions from any physicians as to the limitations caused by a compensable injury, the compensation court has wide discretion to determine the extent of a claimant’s disability, and may rely on nothing other than the claimant’s testimony in reaching that decision.

If you have questions about the decision please contact Nebraska Workers’ Compensation attorney Dallas Jones (djones@baylorevnen.com) or by phone at 402-475-1075.