Failure to rebut rehab counselor's report boosts driver's claim

In Nebraska, a worker can be classified as totally disabled if he is injured to the extent that he cannot perform services other than those which are so limited that the market for the services is nonexistent.

Case name: Dulaney v. Drivers Management, LLC, No. A-11-489 (Neb. Ct. App. 02/28/12).

Ruling: The Nebraska Court of Appeals held that a driver was entitled to permanent total disability benefits.

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What it means: In Nebraska, a worker can be classified as totally disabled if he is injured to the extent that he cannot perform services other than those which are so limited that the market for the services is nonexistent.

Summary: A tractor-trailer driver was driving when a strong gust of wind struck the side of his truck, causing it to slide off the road and jackknife between a fence and the service road. He sustained injuries to his cervical spine, a possible closed-head injury, and various bumps, bruises, and abrasions. He underwent surgery to his neck and elbows. He said that the weather was dangerous on the day of the accident, but he was instructed by his employer to "take a load or be fired." He continued to suffer from pain and had psychological problems. He sought benefits. The Nebraska Court of Appeals held that he was permanently and totally disabled.

The driver said that he had difficulty sitting for more than three hours because of pain. He also explained that after time, he became exhausted and slept for long periods of time. He also becomes very explosive and angry. He did not think he could work as a reliable employee.

The medical testimony was conflicted as to whether he suffered a permanent impairment. However, the evidence supported a conclusion that he sustained a permanent disability to the whole measured as a 100 percent loss of earning power.

Also, a court-appointed vocational rehabilitation counselor concluded that the driver sustained a 98 percent loss of occupations for which he had transferrable skills after his injury. The counselor opined that his occupational loss was due to his personality changes after the injury, physical limitations, and his need to work alone. The employer did not submit a rebuttal.

Read more at the WorkersComp Forum homepage.

April 19, 2012

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