The Nebraska Court of Appeals Elaborates on what Evidence is Sufficient to Find Entitlement to Assessment of Loss of Earning Capacity

by | Aug 27, 2015

On August 25, 2015, the Nebraska Court of Appeals issued an opinion in Marshall v. FedEx Freight East, No. A-14-982 (Neb. Ct. App. Aug. 25, 2015). In Marshall, the claimant incurred a left hand injury which subsequently developed into complex regional pain syndrome (“CRPS”) which allegedly spread outside of claimant’s upper extremity. Upon reaching maximum medical improvement, claimant’s doctor assigned a 25% impairment rating to claimant’s left arm. Despite the fact that the claimant’s CRPS caused pain to radiate into his shoulder, neck, and right arm; no other impairment ratings were provided.

On appeal, the court’s decision centered on the determination of whether such an injury could properly be categorized as a “body-as-a-whole” injury given the lack of ratings other than to the arm. Specifically, the court focused on whether the medical evidence supported the lower court’s finding that the claimant sustained two (or more) scheduled member injuries. Although the only impairment rating provided was limited to Claimant’s left arm, the court held that there was enough medical evidence to support a finding that Claimant sustained permanent injuries to multiple scheduled members. In making this determination, the court looked to the physicians’ notes within the claimant’s medical records. These notes outlined additional injuries and loss of use to the right upper extremity (in addition to the impaired left arm). Accordingly, the court stated that “because the evidence in the record supports the compensation court’s finding that [Claimant’s] right arm as well as his left were permanently impaired by his CRPS, the court did not err in analyzing [Claimant’s] claim as a whole body injury . . . rather than a scheduled member injury”.

The court also addressed the proper procedure for asserting a tax on costs and attorney’s fees in relation to a discovery violation. According to the court, the Workers’ Compensation Court has the authority to rule on such matters, but can only do so upon a separate motion seeking discovery sanctions—allowing the parties to “separately present evidence or argument.” Because Claimant’s counsel in Marshall merely requested such sanctions in his opening statement and made no separate motion for such, the lower court did not err in denying the costs and attorney’s fees.

For questions or additional information on this topic, please contact Nebraska Workers’ Compensation attorney Paul Barta at Feel free to call us at 402.475.1075.