Permanent injuries in Nebraska are either to a “scheduled member” or to the “body-as-a-whole.” In general, “scheduled members” are those injuries specifically listed in § 48-121(3). Scheduled members include fingers, hands, toes, feet, knees, eyes, ears, and hearing. Permanent impairment to a single scheduled member, such as an arm, is compensated in terms of loss of function. You’ll most frequently see this loss of function expressed as a percentage of permanent impairment.
Alternatively, injuries to body parts not expressly listed in § 48-121(3) are commonly called whole-body or body-as-a-whole injuries. Most commonly, these include injuries to the back, neck, head, and psyche. For these whole-body injuries, compensation is based on the employee’s “loss of earning capacity” or “LOEC” which is also referred to as the employee’s “loss of earning power.” There is no numerical formula to determine an employee’s LOEC. It is determined by considering four factors: (1) the worker’s general eligibility to procure and (2) hold employment, (3) the worker’s capacity to perform the tasks required by the work and (4) the worker’s ability to earn wages in employment for which he or she is engaged or fitted. Sidel v. Travelers Ins. Co., 205 Neb. 541, 288 N.W.2d 482 (1980).
Pursuant to a 2007 statutory amendment, the Act also provides that if an employee suffers two or more scheduled member injuries arising out of one accident and the loss of earning capacity is at least 30 percent, the compensation court has the discretion to compensate the employee based upon the resulting loss of capacity. Neb. Rev. Stat. § 48-121(3). This is commonly called the “two scheduled member exception,” but for purposes of this post, it will be referred to succinctly as the ”exception.”
Historically, the purpose of the exception was meant to apply to bilateral injuries arising from the same accident or injuries to completely different body parts. For example, an employee who suffered bilateral knee injuries or both a hand injury in conjunction with a knee injury would be considered under the exception. That argument seemed to change in 2017 when Judge Hoffert held that an employee’s injuries to two different fingers on the same hand could also fall within the exception.
In Abdi v. JBS Holdings, 2017 WL 2437763 (Neb. Work. Comp. Ct.) Judge Hoffert first addressed whether or not a thumb and index finger qualify as multiple member injuries under the exception. To that, Judge Hoffert concluded, “The Court has carefully reviewed the subject statute and searched in vain for any applicable case law. In the end, the Court finds no prohibition against considering a thumb and finger injury as two separate member injuries as each are certainly listed as scheduled injuries under Section 48-121(3). If it were the legislature’s intent to exclude thumb and finger injuries from consideration an affirmative statement to that effect would likely have been made. Additionally, one could easily imagine a circumstance where an injured worker may lose or suffer serious injury to both thumbs in a single accident and would undoubtedly be significantly impaired as to his future earning capacity.” (emphasis added). Importantly, even Judge Hoffert seemed to recognize that the exception was most relevant to bilateral injuries.
Since Judge Hoffert’s decision, several similar cases were decided at the trial court level with differing opinions from the Judges as to whether injuries to the same extremity or limb can satisfy the “two scheduled members” exception.
The most relevant is Judge Fitzgerald’s recent decision in Espinoza v. Job Source, USA, 2022 WL 432217 (Neb. Work. Comp. Ct.). In Espinoza, Judge Fitzgerald held that a right arm and right-hand injury were not two separate injuries for purposes of the exception. As background, the employer in that case stipulated that the employee suffered both a right wrist and right elbow injury as a result of an accident on March 20, 2019. Shortly after the accident, the employee underwent a right wrist surgery. One month later, she had surgery on her right elbow. In light of the same, the employer stipulated that the employee was entitled to a 13% rating to the right upper extremity pursuant to the AMA Guidelines. This rating was a combination of a 5% rating to the elbow and a 9% impairment to the wrist. This is important because § 48-121(3) values an injury to the elbow differently than an injury to the wrist. Specifically, an injury to the elbow is worth up to 225 weeks while an injury to the wrist is worth up to 175 weeks.
Citing to the two-member exception, Judge Fitzgerald held: “A loss of use due to an injury to the wrist and the elbow in a single arm is not an injury to parts of more than one member. The arm is a single member, and any loss of use for an injury below the elbow would be included in the loss of the use of the same arm. The Court finds that an injury to the wrist and the elbow of the same arm is still an injury to a single member and does not entitle an employee to a loss of earning power.”
Espinoza is now on appeal to the Nebraska Supreme Court and is drawing attention from both sides of the workers’ compensation aisle. The Plaintiff’s bar argues that § 48-121(3) should be read to allow an employee to prove multiple injuries to the same limb to satisfy the two-member exception. However, such an argument overlooks the plain language of § 48-121(3), and the intent of the legislature from when it was passed. Indeed, when the 2007 legislative session created the two-member exception, the phrase “bilateral injuries” was consistently utilized by proponents. The example of bilateral carpal tunnel was specifically raised as a type of injury that should qualify under the exception. Other examples included entirely different limbs – a rotator cuff and a knee.
A decision from the Supreme Court will likely not be issued for several weeks, but CPW Law will continue to closely monitor the same as it will certainly impact a dispute among the trial court Judges as to when the two-member exception applies.
If you have questions about a case involved multiple scheduled member injuries, please contact any of the lawyers at CPW by phone or email. Want to ensure you don’t miss out on the next post in the CPW compendium series? Be sure to subscribe to our newsletter.