Recent Case Law

Nebraska Workers' Compensation Decisions of Note

 

Swanson v. Park Place Automotive, 267 Neb. 133, 672 NW2d 405 (December 19, 2003)

 
Facts:  Plaintiff suffered a work accident and injury on May 21, 1999.  At trial, the opinion of plaintiff's treating physician was offered to establish a causal connection between the accident and plaintiff's injury.  Based on the doctor's opinion, the trial court awarded TTD benefits and present and future medical expenses.  However, because the doctor did not assign the plaintiff a permanent functional impairment rating, the trial court did not award any permanent partial disability benefits or vocational rehabilitation benefits.  Review Panel reversed the findings of the trial court on this issue. Both parties appealed.

 
Issue:  Whether the plaintiff was entitled to a loss of earning power and vocational rehabilitation benefits despite having not been assigned a permanent functional impairment rating.

 
Rule:  A physician ordered permanent physical restriction, based on medically established permanent impairment of a body function, establishes a permanent medical impairment for purposes of determining loss of earning capacity.  The Court found that the ruling in Green (see below) does not suggest that a permanent functional impairment rating is a necessary prerequisite to an award of indemnity or vocational rehabilitation services in loss of earning power cases.  

 
**Previous ruling in Green v. Drivers Mgmt., Inc., 263 Neb. 197, 206, 639 N.W.2d 94, 103 (2002):

"Without a finding of permanent medical impairment, there can be no permanent restrictions.  Without impairment or restrictions, there can be no disability or labor market access loss."

 
Holding/Reasoning:  The doctor's opinion established that plaintiff was permanently injured and subject to permanent restrictions.  Court held that these permanent restrictions led to a loss of earning capacity analysis in the range of 15 percent.  Court held that the trial courts finding that there was no evidence of medical impairment because there was no functional impairment rating, was based on an incorrect application of law.  The Court concluded that the Review Panel correctly held that the trial court's findings on this issue should be reversed and remanded for a redetermination.