 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Merrill v. Griswold's2/8/2005
apacity or his possible entitlement to benefits, given that there was no evidence in the record to show any of the following: that Merrill had sustained a loss of earning capacity, that Merrill had been assigned a permanent impairment rating, or that Merrill had permanent restrictions after his November surgery. Griswold's argues that the trial court did not need a permanent impairment rating to determine whether to award Merrill benefits, citing Swanson v. Park Place Automotive, 267 Neb. 133, 672 N.W.2d 405 (2003).
In Swanson v. Park Place Automotive, the employee, after sustaining a work-related injury , had been assigned permanent restrictions, and based on those restrictions, it was determined that the employee had sustained a 15-percent loss of earning capacity but that his physician did not assess a permanent impairment rating. The trial court did not award the employee permanent partial disability benefits and stated that it could not do so given the lack of a permanent impairment rating. The review panel reversed, concluding that the existence of permanent restrictions was sufficient for the court to award loss of earning power and vocational rehabilitation.
The employer appealed, and the Nebraska Supreme Court affirmed, making it clear that permanency could be established either by a permanent impairment rating or by other evidence regarding permanency, including evidence that the employee has permanent restrictions. In reaching this conclusion, the Nebraska Supreme Court quoted Corcoran v. Foster Auto GMC, Inc., 746 S.W.2d 452 (Tenn. 1988), in which the Supreme Court of Tennessee stated:
"We do not think that, when medical evidence establishes permanency, the failure of a medical expert to attribute a percentage of anatomical disability can justify a denial of compensation if the other evidence demonstrates that an award of benefits is appropriate. Otherwise the remedial purpose of the Workers' Compensation Act could easily be frustrated. . . ."
Swanson v. Park Place Automotive, 267 Neb. at 143, 672 N.W.2d at 414.
In contrast, in the instant case, the trial court had a valid reason to defer the issues of Merrill's possible entitlement to permanent disability benefits and Merrill's loss of earning capacity after his October 6, 2000, injury . Unlike Swanson v. Park Place Automotive, supra, the evidence herein shows that Merrill did not have permanent restrictions when he returned to work after his first surgery in November 2000. Merrill also makes it clear that he had not been able to present other evidence to establish the permanency of his injuries and that the court agreed to bifurcate the trial and try the issues of permanency at a later date. Given this record, we find that the court had a valid reason for postponing its determinations as to whether Merrill sustained permanent injury after his October 6 accident and whether Merrill sustained a loss of earning capacity as a result. Therefore, the assignment of error regarding deferred issues is without merit.
Griswold's also argues that the trial court erred in stating that a hearing could be held on Merrill's entitlement to vocational rehabilitation, because the record shows that Merrill is not entitled to vocational rehabilitation. We agree. Neb. Rev. Stat. ยง 48-162.01(3) (Cum. Supp. 2002) states in relevant part:
When as a result of the injury an employee is unable to perform suitable work for which he or she has previous training or experience, he or she is entitled to such vocational rehabilitation services, including job placement and retraining, as may be reasonably necessary to restore him or her to suitable employment.
The record shows that Mer
Page 1 2 3 4 5 6 Nebraska Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|