Recent Case Law

Nebraska Workers' Compensation Decisions of Note

 

Armstrong v. Watkins Concrete Block, 12 Neb. App. 792, 685 NW2d 495 (August 17, 2004)

           
Facts:   Plaintiff filed a Petition alleging he suffered a back injury on May 11, 2001 as a result of engaging in lifting activities.  At trial, plaintiff's counsel moved to "conform the pleadings to the proof" based upon the argument that there was evidence in the record to support a finding that the injury was a product of a repetitive trauma or a specific incident.  Plaintiff, however, did not present the court with a specific amendment to the pleadings and the trial court denied the motion.  The trial court then entered an order of dismissal based upon its finding that the injury was "not the product of an accident that happened on or about May 11, 2001."   Plaintiff appealed to the Review Panel and the findings of the trial court were affirmed.  Plaintiff then appealed to the Nebraska Court of Appeals.

 
Issue:  1)  Whether the trial court erred in overruling plaintiffs motion to "conform the pleadings to the proof".  2)  Whether the trial court erred in not taking into consideration whether a cumulative trauma had been proved.

 
Holding/Reasoning:  The Court reasoned that if an employee, after a work-related injury, receives wages equal to or greater than the wages received before the injury, the wages may be considered in the determination whether an employee has sustained an impairment of earning capacity.  The Court further noted that "partial disability" is defined as a worker's inability to perform all the duties that he or she could do before an accident, even though the worker can still engage in some gainful activity on the job.  The Court concluded that "[r]eason does not allow one to reconcile a 100 percent loss of earning capacity with an ability to engage in some gainful activity on the job, which ability the [plaintiff] clearly had, since she kept working for IBP at the same hourly wage, albeit in a different position, as she had preinjury."  Accordingly, the Court held that the trial court erred when it found that plaintiff had a 100 percent loss of earning power during the periods of temporary partial disability.