Friday, May 02, 2008
Nebraska Supreme Court finds a way around the law of the case doctrine on an appeal following remand. The Nebraska Supreme Court excepts law of the case doctrine and reconsiders worker compensation review panel's decision on injured worker's first trial that the worker compensation court judge should consider both the labor markets where the worker was injured and where she presently lived when evaluating the workers lost earning capacity. Money v. Tyrrell Flowers, S-07-681, 275 Neb. 602. At first trial judge found found the plaintiff had permanent and total disability because after her injury she moved to a small town that had few jobs. The worker compensation review panel reversed, requiring the trial judge to consider both the large and small towns' job markets. On retrial the trial judge found permanent total disability because the plaintiff was an "odd lot worker." The review panel then affirmed the trial court's odd lot worker ruling. Nebraska Supreme Court affirms, ruling that even if the the law of the case doctrine would have limited the trial court on retrial to considering the plaintiff's disability in the two labor markets, the Nebraska Supreme Court's intervening Giboo v. Certified Transmission Rebuilders 746 N.W.2d 362 (2008) decision merited excepting the first review panel's law of the case decision.