The Nebraska Court of Appeals Expounds on what Evidence is Necessary to Find Entitlement to Temporary Total Disability (TTD) in the Absence of Medical Restrictions.

by | Nov 20, 2015

On November 10, 2015, the Nebraska Court of Appeals issued an opinion in Donnelly v. Elite Staffing Global, No. A-15-286 (Neb. Ct. App. Nov. 10, 2015). The claimant in Donnellysustained a burn to her left hand after catching a piece of freshly welded metal between her “pinky finger” and “ring finger. This accident occurred two days after beginning her position at Elite Staffing. Elite Staffing informed Donnelly the same day of the injury that they had no more work for her. Donnelly treated with her primary care physician and with a physician at a burn center. Neither physician indicated that she should be placed off work, nor did they give her any work restrictions. Donnelly testified at trial that after she learned Elite Staffing did not have any further work for her, she began searching for employment elsewhere. Donnelly provided no testimony on whether she would have been able to perform the work she had been doing at the time of her injury had Elite Staffing offered it to her. On May 28, 2013, she obtained new employment which also involved manual labor requiring dexterity of her hands. Despite this, the compensation court found that Donnelly was entitled to temporary total disability (TTD) from April 16, 2013 to May 28, 2013; a waiting-time penalty on the TTD; payment of medical bills submitted; and attorney fees of $6,000.00. On appeal, the Court reversed the compensation court’s award of TTD noting the lack of evidence that Donnelly was unable to work following her burn on April 16, 2013 and before she began work full-time with her new employer on May 28, 2013. The court also found the amount of attorney fees unreasonable and remanded with directions for determination of a reasonable amount based on specific findings at an evidentiary hearing. In reversing the TTD award, the court noted that Donnelly’s testimony regarding her symptoms and pain as a result of the accident only proved that an injury occurred, not that the injury interfered with her ability to work. Furthermore, the Court determined that the mere fact that Elite Staffing did not offer work to Donnelly following the injury was not enough to establish that her injury prevented her from working. Accordingly, the Court stated: “Given that the work Donnelly was performing at the time of her injury was temporary in nature, the fact that Elite Staffing did not offer work to Donnelly following the injury is not independently sufficient to establish that the injury prevented her from working.” As a result, the Plaintiff failed to produce sufficient evidence to entitle her to an Award of temporary benefits. For questions or additional information on this topic, please contact Nebraska Workers’ Compensation attorney Caroline M. Westerhold at or Amanda M. Phillips at