More questions than answers on apportionment in Nebraska workers comp.

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Instead of pension benefits or 401k balances, many workers accumulate work injuries. But does compensation for a prior injury rule out compensation for a subsequent injury? After a recent state Supreme Court decision, some workers in Nebraska could be subjected to that outcome.

In Picard v. P&C Group 1, the Nebraska Supreme Court held that an employee who was compensated for permanent disability for a two wrist injury in 2012 could not be compensated for a permanent disability for a lower back injury in 2015 since they had returned to work in at higher pay/

Apportionment or not?

To workers’ compensation lawyers this is apportionment.  Apportionment is attributing permanent disability for a current injury to a prior injury. However, the Nebraska Supreme Court specifically held Nebraska does not apportion injuries and is a full responsibility state. 

But the court held that plaintiff had already been compensated for permanent disability for their two-hand injury. So as a result. they could not be compensated for their lower back injury. This decision reversed a trial court decision holding the plaintiff had a 75 percent loss of earning power for the wrist injury in 2012 and a 50 percent loss of earning power for the 2015 injury.

The court relied on the fact that the defendant had placed plaintiff in an easier job after the 2012 injury and that plaintiff continued to do their job after the 2015 injury. The court also pointed out that plaintiff was earning more after the 2012 injury and more than they were after in the 2015. These facts lead the court to hold plaintiff had not suffered a loss of earning power for the 2015 injury.

SMH

The decision left many workers’ compensation lawyers in Nebraska shaking their heads. First, the 2012 injury and the 2015 injury involved restrictions to different body parts. There were two separate sources of disability. But the court reversed the trial courts decision to award benefits to for the second injury.

Secondly, the decision appeared to ignore established definitions of loss of earning power. Sure the plaintiff was earning the same (or more) wage after the 2015 injury as before, but that back injury would likely disable the employee in the broader job market. The injury would also likely prevent them from working at some jobs within the plant. That’s why the vocational counselor found the plaintiff had a loss of earning power. The court ignored that and just found that the plaintiff had higher wages than they did before the accident, so they had no loss of earning power.

I’m also disturbed by the argument that plaintiff was earning higher wages post-accident. I hear this argument all the time from employers when I have cases when employees are still employed. True, wages go up in a nominal sense, but so does the cost of living. A worker who receives a cost of living raise doesn’t really increase their earnings.

This decision further ignored several other precedents set by the court when dealing with compensated and non-compensated injuries. It also ignored combining pre-existing conditions and injuries with a current work injury that results in a higher disability for an injured worker. 

What Picard doesn’t change

To be clear, the Picard decision only applies to permanent disability. Injured workers can still receive medical benefits and temporary disability benefits if they were injured previously. The Picard decision also only applies to so-called “non-scheduled” injuries. Workers who previously had a “scheduled injury” can be paid for another scheduled injury or for a new non-scheduled injury. Workers who previously had a scheduled injury can be paid for non-scheduled injuries. Scheduled injuries are paid based on the damage done to the body. In contrast, non-scheduled injuries are paid based on how the injury effects your ability to earn wages.

The offices of Rehm, Bennett, Moore & Rehm, which also sponsors the Trucker Lawyers website, are located in Lincoln and Omaha, Nebraska. Five attorneys represent plaintiffs in workers’ compensation, personal injury, employment and Social Security disability claims. The firm’s lawyers have combined experience of more than 95 years of practice representing injured workers and truck drivers in Nebraska, Iowa and other states with Nebraska and Iowa jurisdiction. The lawyers regularly represent hurt truck drivers and often sue Crete Carrier Corporation, K&B Trucking, Werner Enterprises, UPS, and FedEx. Lawyers in the firm hold licenses in Nebraska and Iowa and are active in groups such as the College of Workers’ Compensation Lawyers, Workers' Injury Law & Advocacy Group (WILG), American Association for Justice (AAJ), the Nebraska Association of Trial Attorneys (NATA), and the American Board of Trial Advocates (ABOTA). We have the knowledge, experience and toughness to win rightful compensation for people who have been injured or mistreated.

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