Doctor's opinion that injury was minor curbs claim for PTD benefits

In Nebraska, evidence that a worker could return to gainful employment in a light-duty position will prevent a finding of total disability under the odd-lot doctrine.

Case name: Loarca v. Cargill Meat Solutions Corp., No. A-12-137 (Neb. Ct. App. 08/21/12).

Ruling: The Nebraska Court of Appeals held that a worker was not permanently totally disabled and denied her request for vocational rehabilitation.

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What it means: In Nebraska, evidence that a worker could return to gainful employment in a light-duty position will prevent a finding of total disability under the odd-lot doctrine.

Summary: A worker was injured in the course and scope of her employment when she suffered an injury to her left shoulder. She was prescribed anti-inflammatory medication and physical therapy. She worked in a light-duty capacity. Later, she suffered a nonwork-related stroke and was diagnosed with a heart condition. The worker was terminated after having unexcused absences. She underwent surgery on her shoulder. The worker acknowledged that the employer paid medical bills related to her injury and sought permanent total disability benefits and vocational rehabilitation. The Nebraska Court of Appeals held that she was not permanently totally disabled and denied her request for vocational rehabilitation.

The worker's doctor presented differing opinions regarding the date she reached maximum medical improvement. The court found the doctor's final opinion was the correct date. The worker did not demonstrate how her condition changed or improved after the date of the doctor's final opinion.

The worker argued that she was permanently totally disabled under the odd-lot doctrine. The court disagreed, pointing out that her doctor specifically concluded that she was not totally disabled and that her shoulder injury was "fairly minor." The doctor said that her only permanent restriction was no prolonged overhead use of her left shoulder and she could return to work. The employer said that it could have placed her into an accommodated position. This indicated that she could have returned to gainful employment and was not permanently totally disabled.

The court found that the worker was not entitled to vocational rehabilitation benefits because the evidence indicated that she could have returned to gainful employment with the employer.

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October 15, 2012

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