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Madlock v. Square D Co.4/22/2005
he loss of wage earning capacity taking into consideration all of the injuries. Farrens Tree Surgeons, supra.
In Miller v. Lauridsen Foods, Inc., 525 N.W.2d 417, 420 (Iowa 1994), the court held: "If an employee suffers both an injury to a scheduled member and also to part of the body not included in the schedule, then the resulting injury is compensated on the basis of an unscheduled injury." See, also, Honeywell v. Allen Drilling Co., 506 N.W.2d 434 (Iowa 1993); Mortimer v. Fruehauf Corp., 502 N.W.2d 12 (Iowa 1993).
The court in Kellerman v. Food Lion, Inc., 929 S.W.2d 333, 336 (Tenn. 1996), stated: "It is the rule in Tennessee that where an injury is to more than one member, one of which is scheduled and the other of which is not scheduled, benefits are allowable on the basis of percentage of the body as a whole." See, also, Continental Ins. Companies v. Pruitt, 541 S.W.2d 594 (Tenn. 1976).
In the case at bar, the whole body injury cannot be separated from the scheduled member injury. Both arose from the same accident. If Madlock had not injured her foot, she would not have sustained a back injury that was compensable under Nebraska's workers' compensation statutes. Under these circumstances, the trial court was required to, and did, consider the scheduled member injury in awarding benefits because Madlock's loss of earning capacity could not be fairly and accurately assessed without such consideration.
Madlock's scheduled member injury was an essential factor in determination of the award for loss of earning capacity. By also awarding separate benefits for the member injury, the trial court allowed Madlock a greater recovery than that to which she was entitled. Thus, the review panel correctly determined that the trial court had erred in awarding Madlock additional benefits for the scheduled member injury.
We therefore hold that 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. Under such circumstances, the trial 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.
CONCLUSION
The judgment of the review panel is affirmed.
Affirmed.
McCormack, J., not participating.
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