Recent Case Law

Nebraska Workers' Compensation Decisions of Note

 

Martinez-Najarro v. IBP, Inc., 12 Neb. App. 504, 678 NW2d 114 (April 20, 2005)

 
Facts:  Plaintiff suffered a work accident and injury in August 1999 which resulted in a 30-pound lifting restriction.  Prior to 1999, plaintiff had been issued a 34-pound lifting restriction related to a previous 1997 shoulder injury.  Plaintiff proceeded to trial for the 1999 injury, and offered a loss of earning capacity analysis which stated that his loss of earning capacity was in the range of 31-52%.  The report identified plaintiff's prior injury and restrictions but did not take them into consideration.  Based upon its review of the loss of earning capacity analysis, the court awarded plaintiff a 5% loss of earning power.  In determining this percentage, the court compared plaintiff's prior 34-pound restriction to his current 30-pound restriction.  Plaintiff appealed the trial court's findings and the Review Panel affirmed.

 
Issue:  Whether apportionment of plaintiff's loss of earning power based upon a prior scheduled member injury was appropriate.

 
Rule:  A preexisting condition cannot be considered in the determination of a claimant's loss of earning capacity.

 
Holding/Reasoning:  The court reasoned that a preexisting injury is not relevant to a compensable work-related injury and that apportionment occurs on a current award when a prior loss of earning capacity already existed.  Where apportionment is appropriated, the court detailed that apportionment occurs after the loss of earning capacity for the current injury has been determined; the amount of loss of earning capacity for which the claimant has already been compensated is deducted from the subsequent loss of earning capacity.  Based on the foregoing, the court reversed the findings of the Review Panel and remanded the case for further proceedings.