2 more Worker Compensation Cases in the Supremes

Two more worker compensation cases come out of the Supreme Court today; seems like a lot of worker compensation cases go up to the appellate courts for an "administrative" system with limited benefits.

Madlock v. Square D Co., 269 Neb. 675 Filed April 22, 2005. No. S-04-758: Supreme Court held that when a scheduled foot injury that results in a whole body injury , the Court must consider the scheduled member injury's effect on whole body impairment, but cannot award both scheulded member beneifts and whole body disability for the same injury. Trouble for plaintiffs however is that some even permanent scheduled member injuries have no effect on whole body loss of earning power. Quoting Zavala v. ConAgra Beef Co., the court determines whether the scheduled member injury adversely affects the worker such that loss of earning capacity cannot be fairly and accurately assessed without considering the impact of the scheduled member injury upon the worker’s employability. If the loss of earning capacity cannot be fairly and accurately assessed without such consideration, then the court is permitted to do so. Zavala v. ConAgra Beef Co., 265 Neb. 188, 655 N.W.2d 692 (2003) Neb. Rev. Stat. § 48-121 (Reissue 2004) "When a whole body injury is the result of a scheduled member injury, the member injury should be considered in the assessment of whole body impairment. the court should not enter a separate award for the member injury in addition to the award for loss of earning capacity. To allow both awards creates an impermissible double recovery." This decision seems to be a response to frequent efforts on plaintff's part to make injuries that in reality are scheduled injuries into whole body ones. However this tactic can backfire where it might have been to the plaintiff's advantage to have a scheduled and not a whole body injury.

Davis v. Goodyear Tire & Rubber Co., 269 Neb. 683 Appellate court would not challenge expert opinion on loss of earning power that provided alternate impairment ratings depending on whether employee would return to same employer. Found that all determinatios of lost earning power are somewhat speculative because they depend on evaluating future events. Neb. Rev. Stat. § 48-121 (Reissue 2004) Note, appears that Defense firm Baylor Evnen represented the plaintiff in this case. Must not be enough defense work to go around now days.

Although Federal employees injured on the job enjoy generous Federal Employee Compensation Act benefits, they have almost no chance to appeal adverse decisions to any court. Has anyone been thinking about this in Nebraska?