The decision, which is a big win for injured workers, resolved a split among the trial judges of the Nebraska Workers’ Compensation Court
In a major victory for injured workers, the Nebraska Supreme Court ruled on Friday that a worker who injured her wrist and elbow on the same arm in the same injury could be paid on a loss of earning power (LOEP) basis rather than on a scheduled member basis.
In simpler terms, the worker could be paid on how her injuries affected her ability to earn a living rather than based on the percentage of impairment or disability given to her by a doctor. The case is a boon for blue collar workers whose stock and trade is manual labor whose work options are severely limited by the inability to use one arm – particularly if it is their dominant arm.
The case is particularly helpful for non-English speaking workers whose language skills further limit their job opportunities. The case clarified a split among trial judges in the Nebraska Workers Compensation Court over whether a two member injury on the same arm could be compensated on a loss of earning power basis.
How and why the court decided the way it did
The trial judge in this case decided that plaintiff’s right wrist and right elbow injury was an injury to an arm, not two members under Neb. Rev. Stat. 48-121(3). The statute states an injury to the arm below the elbow is paid for 175 weeks and an injury to the arm at or above the elbow is paid for 225 weeks.
A worker can get LOEP benefits if the damage to multiple scheduled members leads to a loss of earning power of at least 30 percent.
The employer in this case agreed that an injury to two hands could be paid on a loss of earning power, but argued the trial court was correct in finding that damage to a wrist and elbow on the same arm were not multiple members.
The trial court and defendant relied on a Supreme Court decision argued by this firm, Melton v. City of Holdrege, to hold that injuries on the same arm shouldn’t be paid on a loss of earning power basis.
In Melton, the court rejected an argument that an amputation below the knee should also included a total loss of the leg and toes under the so-called schedule of injuries. In essence Melton wanted to stack scheduled member injuries in a way that would have exceeded the total number of weeks for the loss of a leg.
The Nebraska Supreme court easily brushed off that argument pointing out that plaintiff was claiming loss of earning power benefits and not scheduled member benefits. The court also discounted arguments that the definition of member was ambiguous and that legislative history indicated that the law only applied to injuries involving two separate arms or hands.
Finally, the court cited the beneficent purpose of the act and stated that even if the employers arguments the statute was ambiguous were correct, that ambiguity should be resolved in favor of the worker. As an employee advocate, I was happy to see the court citing to the beneficent purpose argument.
For the immediate future, it will be easier for employees to get paid on a loss of earning power basis for injuries. I had a insurance defense lawyer change his mind on agreeing to a counselor for a loss of earning power basis for a wrist/elbow injury after the decision.
These types of cases will also be valued higher. In Espinosa that plaintiff was awarded a 13 percent impairment to the arm at or above the elbow which would entitle them to 29.75 weeks. If the plaintiff had been paid on a loss of earning power basis, they would have been paid at least the equivalent of 90 weeks. (This would be decreased by any weeks of temporary disability they were paid)
In the medium term, I would expect legislation from the defense side to “fix Espinosa”. Also expect to hear lots of “flood of litigation arguments” from the defense side. I heard one of those this morning and pointed out that multiple-member cases are going to get litigated anyway as the defense bar usually attempt to frame multi-member cases as single member injuries or try to argue the two members didn’t arise in the same accident. Further many defendants fight the appointment of counselors to perform LOEP evaluations in multi-member cases which actually does create more litigation.
One reason why the defense bar fights the appointment of counselors in multi-member cases is that sometimes the motions succeed. Additionally, as the Espinosa court points out, the 30 percent LOEP hurdle is a meaningful barrier to getting loss of earning power benefit. If an employee is back in an accommodated job making a similar wage to what they were making before the accident, it can be difficult to get a judge to compensate a two-member injury on a loss of earning power basis.