Fourth Quarter 2017
By: Stephen P. Murray
Question: Under Nebraska law, can an impairment rating be submitted into evidence and how effective are the ratings in mitigating permanency exposure?
Short Answer: Yes, an impairment rating can be submitted into evidence in Nebraska, and they are effective in mitigating permanency, so long as an employee has not suffered a permanent loss-of-earning as a result of a body-as-a-whole injury.
Discussion: In Nebraska, there are two types of permanent injuries recognized by the Court: 1) scheduled injuries and 2) body-as-a-whole injuries. These two different types of injuries are valued in different ways. For scheduled injuries, which include injuries to the arm/shoulder, leg, foot, hand, ankle, fingers or toes; the Nebraska Legislature places a cap on the number of weeks an employee can receive permanent partial disability (“PPD”) benefits. PPD benefits are determined statutorily based on permanent impairment ratings submitted as evidence before the Court. As such, impairment ratings are a large determination of permanent exposure in a case that involves a scheduled injury. Nebraska courts tend to favor impairment ratings that were determined using the AMA Guides Fifth Edition, however an impairment rating based on any edition of the AMA Guides may be submitted to the Court for consideration.
For body-as-a-whole injuries, which include injuries to the back, neck, and head; permanency is determined by measuring the loss of earning power suffered as a result of the injury. See, Neb. Rev. Stat. 48-121(2). Earning power is not synonymous with wages, but includes the following criteria:
1) eligibility to procure employment generally;
2) ability to hold a job obtained;
3) capacity to perform the tasks of the work; as well as
4) the ability of the worker to earn wages in the employment in which he or she is engaged or for which he or she is fitted.
For these types of injuries, impairment ratings submitted as evidence are much less effective in mitigating permanent exposure.
Practice Tip: When there is a scheduled injury, it is vital to have a favorable impairment rating submitted into evidence to mitigate permanency. Unlike many states, shoulder injuries are not body-as-a-whole injuries in Nebraska and therefore are only eligible for a maximum of 225 weeks of PPD benefits regardless of his or her loss-of-earning capacity as a result. Nebraska judges tend to favor ratings given under the AMA Guides Fifth Edition, not the Sixth Edition, though statutorily a physician can use either edition to come to a permanency conclusion.