Location of injury used to determine loss of earning capacity
Case name: Visoso v. Cargill Meat Solutions, No. S-12-038 (Neb. 02/22/13).
Ruling: The Nebraska Supreme Court remanded the claim to allow the worker to establish a loss of earning capacity in the location where he was injured.
What it means: In Nebraska, if insufficient credible data exists for a determination of an undocumented worker's loss of earning capacity in his current location, his community of origin, the location where the injury occurred may serve as the hub community.
An undocumented worker sustained injuries in the course and scope of his employment when a 200-pound quarter of beef fell off an overhead conveyor and landed on his head. He was awarded temporary total disability benefits. The employer sought to discontinue his TTD benefits when he reached maximum medical improvement. While the action was pending, the worker returned to Mexico, his country of origin. A vocational rehabilitation counselor could not determine the worker's loss of earning capacity in the labor market area in Mexico. The Nebraska Supreme Court remanded the claim to the Workers' Compensation Court to allow the worker to attempt to establish permanent impairment and a loss of earning capacity using the place of injury as the hub community.
The court found that, because the worker reached maximum medical improvement, the employer satisfied its burden that his TTD benefits should cease. The worker had to show that his injury caused permanent impairment of the body as a whole and the permanent impairment resulted in a loss of earning capacity. The court pointed out that the employer did not contest that the worker was covered by workers' compensation. Also, his move to Mexico was made in good faith and not for an improper motive.
The court found there was no foundation to render an opinion regarding the loss of earning power for the hub community in Mexico. The court found that the place where the injury occurred should have been considered for the purpose of determining loss of earning power. The court pointed out that the vocational rehabilitation experts were able to give a credible evaluation of his loss of earning capacity if the place of injury was considered.
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May 21, 2013
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