Rodgers v. Nebraska State Fair ( 2014 )

Nebraska Advance Sheets
92 288 NEBRASKA REPORTS
employer clearly falls outside of the protections afforded by
these statutes. This court has repeatedly emphasized that it is
the Legislature’s function to declare the public policy of this
state.19 And the court long ago recognized that equity will not
enjoin the commission of a crime merely because the penalty
seems to be inadequate, since the relief in such case must come
from the Legislature.20 As the court said at that time, “If the
punishment provided is not sufficient, recourse should be had
to the [L]egislature, and not to the equity side of the courts.”21
It is the Legislature’s prerogative to determine whether the
extraordinary remedy of injunctive relief should be extended
in the way that ConAgra seeks. Instead of deferring to the
Legislature’s proper functioning, the majority’s decision pre-
empts the Legislature’s role.
I respectfully dissent.
Stephan, J., joins in this dissent.
19
See, e.g., In re Invol. Dissolution of Wiles Bros., 285 Neb. 920, 830
N.W.2d 474 (2013); In re Interest of Kendra M. et al., 283 Neb. 1014, 814
N.W.2d 747 (2012); Bassinger v. Nebraska Heart Hosp., 282 Neb. 835,
806 N.W.2d 395 (2011); City of Falls City v. Nebraska Mun. Power Pool,
281 Neb. 230, 795 N.W.2d 256 (2011); Bamford v. Bamford, Inc., 279
Neb. 259, 777 N.W.2d 573 (2010); R & D Properties v. Altech Constr. Co.,
279 Neb. 74, 776 N.W.2d 493 (2009); Wilke v. Woodhouse Ford, 278 Neb.
800, 774 N.W.2d 370 (2009); Davis v. Davis, 275 Neb. 944, 750 N.W.2d
696 (2008).
20
See Maltby, supra note 12.
21
Id. at 584, 188 N.W. at 178.
Charles Rodgers, appellant, v.
Nebraska State Fair, appellee.
___ N.W.2d ___
Filed May 9, 2014. No. S-13-651.
1. Workers’ Compensation: Appeal and Error. A judgment, order, or award of
the Workers’ Compensation Court may be modified, reversed, or set aside only
upon the grounds that (1) the compensation court acted without or in excess of its
powers; (2) the judgment, order, or award was procured by fraud; (3) there is not
sufficient competent evidence in the record to warrant the making of the order,
Nebraska Advance Sheets
RODGERS v. NEBRASKA STATE FAIR 93
Cite as 288 Neb. 92
judgment, or award; or (4) the findings of fact by the compensation court do not
support the order or award.
2. ____: ____. In determining whether to affirm, modify, reverse, or set aside
a judgment of the Workers’ Compensation Court, a higher appellate court
reviews the trial judge’s findings of fact, which will not be disturbed unless
clearly wrong.
3. ____: ____. Regarding questions of law, an appellate court in workers’ compen-
sation cases is obligated to make its own decisions.
4. Statutes: Appeal and Error. Statutory interpretation presents a question of law,
for which an appellate court has an obligation to reach an independent conclusion
irrespective of the determination made by the court below.
5. ____: ____. The language of a statute is to be given its plain and ordinary mean-
ing, and an appellate court will not resort to interpretation to ascertain the mean-
ing of statutory words which are plain, direct, and unambiguous.
6. ____: ____. Absent anything to the contrary, an appellate court will give statutory
language its plain and ordinary meaning.
7. ____: ____. When construing a statute, an appellate court must look to the
statute’s purpose and give to the statute a reasonable construction which best
achieves that purpose, rather than a construction which would defeat it.
8. ____: ____. The rules of statutory interpretation require an appellate court to give
effect to the entire language of a statute, and to reconcile different provisions of
the statutes so they are consistent, harmonious, and sensible.
9. Workers’ Compensation. The Nebraska Workers’ Compensation Act should be
construed to accomplish its beneficent purposes.
Appeal from the Workers’ Compensation Court: Michael K.
High, Judge. Reversed and remanded.
David M. Handley, of Dyer Law, P.C., L.L.O., for appellant.
Brynne E. Holsten, of Engles, Ketcham, Olson & Keith,
P.C., for appellee.
Heavican, C.J., Wright, Connolly, Stephan, McCormack,
Miller-Lerman, and Cassel, JJ.
Miller-Lerman, J.
NATURE OF CASE
Charles Rodgers, the appellant, suffered injuries to both of
his knees in a work-related accident on September 7, 2009. In
its award filed July 3, 2013, the Workers’ Compensation Court
concluded that in order to perform a loss of earning capac-
ity calculation under the third paragraph of Neb. Rev. Stat.
§ 48-121(3) (Reissue 2010), there must be expert opinion of
permanent physical restrictions as to each injured scheduled
Nebraska Advance Sheets
94 288 NEBRASKA REPORTS
member. Despite Rodgers’ request, the court declined to con-
sider a potential loss of earning capacity award in the absence
of such proof as to the left knee and therefore limited its award
to scheduled member benefits. Rodgers appeals. We conclude
that the compensation court erred as a matter of law when
it concluded that the absence of expert opinion of perma-
nent physical restrictions as to the left knee precluded a loss
of earning capacity calculation under the third paragraph of
§ 48-121(3). We reverse, and remand the cause for consider-
ation consistent with our opinion.
STATEMENT OF FACTS
This case stems from a work-related accident that occurred
on September 7, 2009, in which Rodgers suffered injuries
to both of his knees. The parties stipulated to certain facts,
described and adopted by the court as follows:
1. On September 7, 2009, plaintiff, . . . Rodgers, injured
his knees arising out of and in the scope and course of his
employment with the defendant, Nebraska State Fair.
2. Timely notice of the injury was given to the employer.
3. Venue is proper in the Nebraska Workers’
Compensation Court.
4. At the time of [Rodgers’] injury, [Rodgers] was
earning an average weekly wage of $480.36.
5. [Rodgers] has reached maximum medical improve-
ment for his left knee on August 5, 2010, and was
assigned a 2 percent impairment to his left lower extrem-
ity by Dr. Lawson.
6. [Rodgers] has reached maximum medical improve-
ment for his right knee on October 25, 2011, as indicated
by both Dr. Donovan and Dr. O’Neil and was assigned
a 40 percent impairment to his right lower extremity by
Dr. O’Neil.
7. The parties agree that all related medical and hospi-
tal expenses previously incurred by [Rodgers] have been
or are in the process of being paid by the [Nebraska State
Fair] pursuant to the Fee Schedule.
8. The parties agree that all future related medical
[expenses] as defined by Neb. Rev. Stat. § 48-120 for
Nebraska Advance Sheets
RODGERS v. NEBRASKA STATE FAIR 95
Cite as 288 Neb. 92
[Rodgers’] right knee will be paid by the [Nebraska State
Fair] pursuant to the Fee Schedule.
9. The parties agree that there are no penalties due.
Dr. John C. Yeakley initially treated Rodgers for his knee
injuries. Dr. Yeakley performed surgery on the left knee on
May 3, 2010. After Dr. Yeakley retired, Dr. Keith W. Lawson
assumed Rodgers’ care. In Dr. Lawson’s report dated December
12, 2011, he stated that Rodgers reached maximum medical
improvement for his left knee on August 5, 2010. Dr. Lawson
opined that Rodgers had sustained a 2-percent permanent par-
tial impairment to his left knee but assigned no permanent
physical restrictions to the left knee.
Dr. Yeakley performed surgery on the right knee on February
1, 2010. Dr. Yeakley performed a second surgery on the right
knee on November 29. Following the second surgery on the
right knee, Rodgers was diagnosed with chronic regional pain
syndrome in the right knee.
At the request of the Nebraska State Fair, Rodgers was
examined by Dr. Michael T. O’Neil for an independent medi-
cal evaluation. According to Dr. O’Neil’s September 19, 2012,
report, Rodgers had reached maximum medical improvement
for his right knee on October 25, 2011. Dr. O’Neil assigned
a 40-percent permanent partial impairment rating for the right
knee. As to permanent physical restrictions, Dr. O’Neil noted
“no prolonged walking or standing as well as [no] climbing,
squatting and kneeling.”
On January 7, 2013, the vocational counselor agreed upon
by the parties provided a loss of earning capacity analysis.
In his report, the counselor stated that he had interviewed
Rodgers and reviewed Rodgers’ medical records regarding
his knee injuries. The counselor stated: “I have been asked
to determine . . . Rodgers’ loss of earning capacity per the
parties [sic] e-mail . . . that states ‘the entitlement to [loss
of earning capacity] will be a matter of fact determined
by the trial judge.’” The vocational counselor determined
that Rodgers’ loss of earning capacity “would be approxi-
mately 65%.”
Rodgers filed his petition, including a request for loss of
earning compensation in the Workers’ Compensation Court
Nebraska Advance Sheets
96 288 NEBRASKA REPORTS
on October 9, 2012. The Nebraska State Fair filed its answer
on November 21. A hearing was held before the Workers’
Compensation Court on June 25, 2013. Rodgers offered and
the court received five exhibits, and the Nebraska State Fair
offered and the court received six exhibits. The exhibits con-
sisted primarily of Rodgers’ medical expenses, records, and
reports. Rodgers was the only witness.
On July 3, 2013, the Workers’ Compensation Court filed
an award in which it concluded that it was unable to perform
a loss of earning power calculation under the third paragraph
of § 48-121(3) in the absence of expert proof of permanent
restrictions relating to the left knee and therefore limited its
consideration of the evidence and made an award based on
scheduled member benefits. Referring to the provisions in the
third paragraph of § 48-121(3), the court stated that “the sole
issue in this case is whether or not [the third paragraph] from
Neb. Rev. Stat. § 48-121[(3)] applies so [Rodgers] is entitled
to a loss of earning power rather than the payment schedule
for scheduled member disability.”
The statutory language to which the court referred and
which is central to this appeal is found in the third paragraph of
§ 48-121(3). This paragraph was added in 2007, and provides
in its entirety:
If, in the compensation court’s discretion, compensa-
tion benefits payable for a loss or loss of use of more than
one member or parts of more than one member set forth
in this subdivision, resulting from the same accident or
illness, do not adequately compensate the employee for
such loss or loss of use and such loss or loss of use results
in at least a thirty percent loss of earning capacity, the
compensation court shall, upon request of the employee,
determine the employee’s loss of earning capacity con-
sistent with the process for such determination under
subdivision (1) or (2) of this section, and in such a case
the employee shall not be entitled to compensation under
this subdivision.
We have previously considered this amendatory language
and noted that
Nebraska Advance Sheets
RODGERS v. NEBRASKA STATE FAIR 97
Cite as 288 Neb. 92
[o]ther than the amendment at issue, the portions of
§ 48-121(3) then and now provide for compensation
based on designated amounts for scheduled member inju-
ries, but no loss of earning capacity [except as may
result from the second paragraph of § 48-121(3)]. The
amendment provides for the loss of earning capacity
at the court’s discretion where there is a loss or loss of
use of more than one member which results in at least a
30-­ ercent loss of earning capacity.
p
Smith v. Mark Chrisman Trucking, 285 Neb. 826, 830, 829
N.W.2d 717, 720 (2013).
In its award, the Workers’ Compensation Court endeav-
ored to interpret the new language of § 48-121(3). The court
focused on the introductory sentence of the new third para-
graph, which provides that the option to consider an award of
loss of earning capacity depends on the availability of compen-
sation benefits payable “for a loss or loss of use of more than
one member or parts of more than one member.” The court
concluded that “there must be at least a functional loss of use
in the form of permanent physical restrictions for each sched-
uled member” in order to perform a loss of earning capacity
calculation. The court stated that “‘a loss’ clearly relates to a
physical removal of a part of the scheduled members, that is
leg, arm, or finger, etc.” The court continued that the portion
of the phrase in the new third paragraph of § 48-121(3) that
provides “loss of use of more than one member”
means that there must [be] a permanent partial disability
in the form of permanent restrictions relating to the use
of the particular scheduled member before the rest of the
calculations set forth in the above quoted paragraph [of
§ 48-121(3)] can possibly take place and result in pay-
ment for a loss of earning power.
The court found that Rodgers had sustained a permanent
partial impairment to his right knee of 40 percent and a per-
manent partial impairment to his left knee of 2 percent. No
party challenges these findings on appeal. Notwithstanding
these findings of permanent impairment, the court nevertheless
determined that because no permanent physical restrictions
Nebraska Advance Sheets
98 288 NEBRASKA REPORTS
were specifically assigned by an expert for Rodgers’ left knee,
the court could not calculate loss of earning capacity benefits
authorized under § 48-121(3), and that Rodgers was thus lim-
ited to scheduled member compensation. The court found that
the Nebraska State Fair had paid Rodgers all the benefits to
which he was entitled, and ordered that the Nebraska State Fair
pay for all reasonable and necessary future medical costs asso-
ciated with Rodgers’ right knee. Rodgers appeals.
ASSIGNMENT OF ERROR
Rodgers claims on appeal that the Workers’ Compensation
Court erred when it concluded that the third paragraph of
§ 48-121(3) requires that there must be specific expert evi-
dence of permanent physical restrictions as to each scheduled
member in order to calculate an award of a loss of earning
capacity under this statute.
STANDARDS OF REVIEW
[1-3] A judgment, order, or award of the Workers’
Compensation Court may be modified, reversed, or set aside
only upon the grounds that (1) the compensation court acted
without or in excess of its powers; (2) the judgment, order, or
award was procured by fraud; (3) there is not sufficient compe-
tent evidence in the record to warrant the making of the order,
judgment, or award; or (4) the findings of fact by the compen-
sation court do not support the order or award. Visoso v. Cargill
Meat Solutions, 287 Neb. 439, 843 N.W.2d 597 (2014). In
determining whether to affirm, modify, reverse, or set aside a
judgment of the Workers’ Compensation Court, a higher appel-
late court reviews the trial judge’s findings of fact, which will
not be disturbed unless clearly wrong. Rader v. Speer Auto, 287
Neb. 116, 841 N.W.2d 383 (2013). Regarding questions of law,
an appellate court in workers’ compensation cases is obligated
to make its own decisions. Id.
[4] Statutory interpretation presents a question of law, for
which an appellate court has an obligation to reach an inde-
pendent conclusion irrespective of the determination made
by the court below. Hess v. State, 287 Neb. 559, 843 N.W.2d
648 (2014).
Nebraska Advance Sheets
RODGERS v. NEBRASKA STATE FAIR 99
Cite as 288 Neb. 92
ANALYSIS
At issue in this case is the interpretation of the third para-
graph of § 48-121(3), which was added to the statute by 2007
Neb. Laws, L.B. 588. As stated above, this paragraph provides:
If, in the compensation court’s discretion, compensa-
tion benefits payable for a loss or loss of use of more than
one member or parts of more than one member set forth
in this subdivision, resulting from the same accident or
illness, do not adequately compensate the employee for
such loss or loss of use and such loss or loss of use results
in at least a thirty percent loss of earning capacity, the
compensation court shall, upon request of the employee,
determine the employee’s loss of earning capacity con-
sistent with the process for such determination under
subdivision (1) or (2) of this section, and in such a case
the employee shall not be entitled to compensation under
this subdivision.
This third paragraph was first introduced as 2007 Neb.
Laws, L.B. 77, which was later inserted into L.B. 588. In Smith
v. Mark Chrisman Trucking, 285 Neb. 826, 829, 829 N.W.2d
717, 720 (2013), we stated that this amendment created a new
remedy and set forth the Introducer’s Statement of Intent for
L.B. 77, which provided:
“LB 77 relates to the Nebraska Workers’ Compensation
Act and would change disability compensation provi-
sions. Under current law, if a worker sustains an injury
to multiple members, he or she is limited to the com-
pensation provided in the schedule contained in sec-
tion 48-121 of the Nebraska Workers’ Compensation
Act. LB 77 would give to the Nebraska Workers’
Compensation Court the discretion to award a loss of
earning capacity in an appropriate case involving loss of
use of multiple members.”
In Smith, we commented that
a worker can now receive compensation for the loss of
earning capacity if, in the court’s discretion, compensa-
tion as set forth in § 48-121(3) would not adequately
compensate the worker and where there is a loss or loss
of use of more than one member resulting from the same
Nebraska Advance Sheets
100 288 NEBRASKA REPORTS
accident which results in at least a 30-percent loss of
earning capacity.
285 Neb. at 834, 829 N.W.2d at 723.
In the instant case, we examine the new language more
closely and conclude that the court erred as a matter of law
when it limited the application of the new remedy to only
those cases in which an expert opinion existed regarding the
permanent physical restrictions as to each injured member, an
element not found in the statutory language and not essential to
the performance of a loss of earning capacity calculation. We
thus find merit to Rodgers’ assignment of error claiming the
Workers’ Compensation Court erred in its interpretation, and
we reverse, and remand.
The introductory language of § 48-121 provides that this
statute contains a “schedule of compensation” for injuries.
Although the language of § 48-121 has changed over time, the
following partial summary of § 48-121 from Jeffers v. Pappas
Trucking, Inc., 198 Neb. 379, 253 N.W.2d 30 (1977), is still
appropriate. In Jeffers, we stated:
Section 48-121 . . . provides for compensation for three
categories of job-related disabilities. Subdivision (1) sets
the amount of compensation for total disability; subdivi-
sion (2) sets the amount of compensation for disability
partial in character, except in cases covered by subdivi-
sion (3); and subdivision (3) sets out “schedule” injuries
to specified parts of the body with compensation estab-
lished therefore [sic].
198 Neb. at 384, 253 N.W.2d at 33. Although we recognize
that the provisions of § 48-121 have been revised from time
to time, historically, our cases as described below have noted
that loss of earning capacity calculations were relevant to
determining an award under § 48-121(1) and (2) and, since
2007, such calculation is relevant to a potential award under
§ 48-121(3).
Turning to the current statute, the first sentence of the sec-
ond paragraph of § 48-121(3) provides:
In any case in which there is a loss or loss of use
of more than one member or parts of more than one
member set forth in this subdivision, but not amounting
Nebraska Advance Sheets
RODGERS v. NEBRASKA STATE FAIR 101
Cite as 288 Neb. 92
to total and permanent disability, compensation benefits
shall be paid for the loss or loss of use of each such
member or part thereof, with the periods of benefits to
run consecutively.
The last sentence of the second paragraph of § 48-121(3)
states that where there is “permanent partial loss of the use or
function of any of the members mentioned in” § 48-121(3),
the employee shall receive compensation benefits in the pro-
portionate amount based on the schedule set forth in the first
paragraph of § 48-121(3). The second paragraph of § 48-121(3)
thus provides for compensation where there is more than
one member involved. Rodgers was awarded benefits under
this second paragraph of § 48-121(3). The third paragraph of
§ 48-121(3), as previously noted, provides a discretionary rem-
edy consisting of a loss of earning capacity award in lieu of
scheduled member compensation where two or more members
are involved and there is a 30-percent loss of earning capac-
ity. Rodgers was denied benefits under this third paragraph of
§ 48-121(3).
[5-8] With the third paragraph of § 48-121(3) in mind, we
turn to our familiar canons of statutory construction. The lan-
guage of a statute is to be given its plain and ordinary mean-
ing, and an appellate court will not resort to interpretation
to ascertain the meaning of statutory words which are plain,
direct, and unambiguous. Robertson v. Jacobs Cattle Co., 285
Neb. 859, 830 N.W.2d 191 (2013). In other words, absent any-
thing to the contrary, an appellate court will give statutory lan-
guage its plain and ordinary meaning. Hess v. State, 287 Neb.
559, 843 N.W.2d 648 (2014). And when construing a statute,
an appellate court must look to the statute’s purpose and give
to the statute a reasonable construction which best achieves
that purpose, rather than a construction which would defeat
it. Id. The rules of statutory interpretation require an appellate
court to give effect to the entire language of a statute, and to
reconcile different provisions of the statutes so they are con-
sistent, harmonious, and sensible. ML Manager v. Jensen, 287
Neb. 171, 842 N.W.2d 566 (2014).
In its order, the court found that Rodgers was entitled to
scheduled member compensation under § 48-121(3) but not
Nebraska Advance Sheets
102 288 NEBRASKA REPORTS
entitled to consideration for a loss of earning capacity benefit
under § 48-121(3). By its ruling and award, the court implic-
itly found that Rodgers suffered a “loss of use” as to each the
left knee and the right knee for purposes of the award under
the second paragraph of § 48-121(3) but explicitly found that
he did not suffer a “loss of use” of the left knee for purposes
of the third paragraph of § 48-121(3). That is, the court found
“loss of use” of the left knee for the second paragraph but not
“loss of use” of the left knee for the third paragraph.
In its award, the court stated that in order to perform a loss
of earning power calculation “there must be at least a func-
tional loss of use in the form of permanent physical restrictions
for each scheduled member.” That is, the court concluded that
under the statute, an expert opinion regarding permanent loss
of bodily function as to each scheduled member was neces-
sary before a loss of earning power calculation could be per-
formed. Rodgers contends on appeal that “[t]he appropriate
place to scrutinize restrictions . . . under [the third paragraph
of] § 48-121(3) is at the point of the loss of earnings capac-
ity analysis” and that the Workers’ Compensation Court erred
when it required the existence of expert proof of loss of bodily
function qua permanent physical restrictions before the court
could perform a loss of earning capacity analysis. Brief for
appellant at 13. We agree with Rodgers’ contention.
Statutory interpretation presents a question of law, for
which an appellate court has an obligation to reach an inde-
pendent conclusion irrespective of the determination made by
the court below. Hess v. State, supra. We conclude as a mat-
ter of law that the compensation court incorrectly interpreted
the third paragraph of § 48-121(3). As explained below, the
court’s interpretation of the third paragraph of § 48-121(3)
by which it added an additional element, i.e., proof of func-
tional loss in the form of permanent physical restrictions
as to each member notwithstanding undisputed evidence of
permanent impairment, in order to calculate a loss of earning
power is not supported by the language of the statute, logic, or
our jurisprudence.
The plain language of the third paragraph of § 48-121(3)
guides our resolution of this case. First, the plain language
Nebraska Advance Sheets
RODGERS v. NEBRASKA STATE FAIR 103
Cite as 288 Neb. 92
of the third paragraph of § 48-121(3) does not require the
loss of bodily function proof that the court insists on. Second,
the language does require that, if the threshold requirements
are met, including a request by the employee for loss of earn-
ing capacity compensation, and in the compensation court’s
discretion the scheduled member benefits resulting from the
same accident or illness do not adequately compensate the
employee, then the compensation court shall “determine the
employee’s loss of earning capacity consistent with the proc­
ess for such determination under subdivision (1) or (2) of
this section.”
In considering the court’s additional element, i.e., requir-
ing expert proof of permanent physical restrictions as to each
member, we conclude that there is simply nothing in the plain
language of the statute that provides for or warrants adding this
extra requirement. To the extent the court believes this addi-
tional requirement is necessary to show loss of use in the third
paragraph of § 48-121(3), we note that the court did not simi-
larly encumber its finding of loss of use in the second para-
graph. It is not sensible to read “loss of use” in these adjoining
paragraphs as requiring different sets of proof. Further, the
court’s award, which is not challenged by the Nebraska State
Fair, was supported by an undisputed permanent impairment
rating as to each knee. We have often noted the necessity, in
the alternative, of proof of impairment or restrictions at the
loss of earning analysis stage, but we have not been directed to
authority which requires proof of both impairment and restric-
tions before undertaking a loss of earning capacity analysis.
See, e.g., Green v. Drivers Mgmt., Inc., 263 Neb. 197, 206,
639 N.W.2d 94, 103 (2002) (providing for alternative proofs
and stating in context of vocational rehabilitation benefits that
“[w]ithout impairment or restrictions, there can be no disability
or labor market access loss”).
In considering the court’s ruling which in effect provides
that it cannot perform a loss of earning capacity calculation
without expert loss of bodily function proof as to each mem-
ber, such conclusion is not consistent with the statute’s direc-
tive that a loss of earning capacity calculation be performed
“consistent with the process for such determination under
Nebraska Advance Sheets
104 288 NEBRASKA REPORTS
subdivision (1) or (2) [of § 48-121],” because the “process” for
such determination decidedly does not require such proof. Our
case law confirms this.
Acknowledging as we have that § 48-121 has been revised
from time to time, we have commented on the “process” and
stated that “[a]n employee’s disability as a basis for compensa-
tion under § 48-121(1) and (2) is determined by the employee’s
diminution of employability or impairment of earning power or
earning capacity, and is not necessarily determined by a phy-
sician’s evaluation and assessment of the employee’s loss of
bodily function.” Heiliger v. Walters & Heiliger Electric, Inc.,
236 Neb. 459, 470, 461 N.W.2d 565, 573 (1990). Elsewhere,
we have stated that “[i]f the injury falls under either subdivi-
sion (1) or (2) [of § 48-121], a determination must be made as
to the employee’s loss of employability or earning capacity,
and loss of bodily function is not at issue.” Jeffers v. Pappas
Trucking, Inc., 198 Neb. 379, 385, 253 N.W.2d 30, 34 (1977).
See, similarly, Kleiva v. Paradise Landscapes, 227 Neb. 80,
416 N.W.2d 21 (1987).
We have frequently observed that earning power is not
synonymous with either wages or loss of physical function.
E.g., Thom v. Lutheran Medical Center, 226 Neb. 737, 414
N.W.2d 810 (1987). Thus, although loss of physical function
may affect a worker’s ability to procure and hold employment,
contrary to the court’s conclusion in this case, we cannot say
that the absence of expert proof of functional loss prevents the
performance of a loss of earning capacity calculation. Indeed,
to the contrary, we have stated in a variety of settings that
degree of disability may be determined without expert evi-
dence and that the court may rely on a claimant’s testimony.
E.g., Frauendorfer v. Lindsay Mfg. Co., 263 Neb. 237, 639
N.W.2d 125 (2002). The compensation court’s interpretation
is not consistent with the established process for consideration
of loss of earning capacity under § 48-121(1) and (2) and is
therefore not a proper interpretation of the directive in the third
paragraph of § 48-121(3).
With the addition of the current third paragraph of
§ 48-121(3), the Legislature clearly intended to extend the
opportunity to receive benefits for loss of earning capacity
Nebraska Advance Sheets
RODGERS v. NEBRASKA STATE FAIR 105
Cite as 288 Neb. 92
to workers with multiple member injuries resulting from the
same accident or illness and for whom there is evidence of
a 30-­ ercent loss of earning capacity. In this case, the record
p
undisputedly shows that Rodgers had been assigned a 2-­ ercent
p
permanent partial impairment rating for his left knee and a
40-percent permanent partial impairment rating for his right
knee, Rodgers’ injuries resulted from the same accident, the
vocational counselor determined that Rodgers’ loss of earn-
ing capacity “would be approximately 65%,” and Rodgers
requested loss of earning compensation.
[9] As a general rule, the Nebraska Workers’ Compensation
Act should be construed to accomplish its beneficent purposes.
Visoso v. Cargill Meat Solutions, 285 Neb. 272, 826 N.W.2d
845 (2013). Reading an additional requirement of expert proof
of permanent restrictions for each injured member into the
statute, as the compensation court has done, impedes accom-
plishing the extension of the potential for workers to receive
loss of earning power benefits and is not consistent with
the “process” for determining loss of earning capacity under
§ 48-121(1) or (2).
We conclude that the third paragraph of § 48-121(3) does
not require expert proof of permanent physical restrictions
assigned to each injured member in order to perform the loss of
earning capacity assessment thereunder, and the compensation
court’s conclusion to the contrary was error.
CONCLUSION
The compensation court erred as a matter of law when it
concluded that there must be expert opinion of permanent
physical restrictions as to each injured member in order to
perform a loss of earning capacity assessment under the third
paragraph of § 48-121(3) and declined to exercise its discretion
on this basis. We therefore reverse, and remand the cause for a
decision consistent with this opinion.
R eversed and remanded.