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In re Appeal of CNA Insurance Company9/17/2002
perform light duty work, but was medically restricted from lifting anything over twenty pounds and from engaging in certain movements such as twisting. Id. On appeal, the employer argued that the court erred when it made a finding of lost earning capacity without the testimony of a vocational expert. Id. at 81. The Court of Appeals of Nebraska disagreed, stating that loss of earning power is a question of fact, and that the court did not need expert testimony to decide loss of earning capacity when the record showed clearly that the worker: 1) was placed on work restrictions; 2) had been diagnosed with various impairment ratings; and 3) had a high school education and his work experience was limited to manual labor positions. Id. at 83.
We find Haney, as well as cases from other jurisdictions, to be instructive, and agree that the board generally does not need to rely upon expert testimony when deciding questions of diminished earning capacity. Unlike issues involving medical causation, the determination of whether a claimant's disability has caused a diminished earning capacity can be based upon non-expert testimony, including the testimony of the claimant. See Haney, 521 N.W.2d at 81; Corcoran v. Foster Auto GMC, Inc., 746 S.W.2d at 458. Nonetheless, there may be instances where expert testimony is necessary to support a decision regarding a worker's earning capacity. Unlike the situation in Haney, there may be times when, due to a claimant's job skills and education, the determination as to whether he or she can compete in the open labor market is beyond the ken of the CAB. Thus, in some circumstances lay testimony may be insufficient to support the board's findings. We disagree with CNA, however, that expert testimony is needed simply because a worker continues to work without medical restrictions following an injury .
Because the board did not address whether the claimant can compete in the open labor market, we do not decide in the first instance whether a vocational or employment expert is necessary in this case. Accordingly, we vacate the board's decision and remand for further proceedings consistent with this opinion.
Vacated and remanded.
BROCK, C.J., and NADEAU and DUGGAN, JJ., concurred.
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