In keeping with Sodoro Law Group’s commitment to excellence, we stay ahead of the curve by monitoring relevant legal developments in the jurisdictions where we practice. Recently, the Nebraska Supreme Court issued an opinion in Melton v. City of Holdrege and determined multiple issues relevant to our great workers’ compensation Clients.
In the Melton case, a worker was injured in the course and scope of his employment, resulting in the amputation of his left leg below the knee. The injured worker received temporary total disability (“TTD”) benefits from his employer until March 2016. In May 2017, the worker provided his employer with the record stating that he had reached maximum medical improvement (“MMI”), and his employer paid permanent partial disability (“PPD”) benefits based on 100% loss of the worker’s left foot, as well as an additional 5% for the worker’s loss to his left leg. Ultimately, the Workers’ Compensation Court required the employer to pay the worker for 20% loss to his left leg.
However, the worker claimed that he was entitled to even more benefits. He requested an award for his entire left leg, an award for the loss of all of his toes on his foot, and an award for waiting time penalties, attorney fees, and interest for an allegedly late payment of the PPD benefits.
Loss of Entire Left Leg Not Supported by Foot Amputation. With respect to the worker’s argument that he suffered a total loss of use of his left leg, the Nebraska Supreme Court recognized that the worker’s left leg was not totally useless. For example, the worker remained able to bend his knee and therefore support weight on his right leg. The residual function in his left leg also allowed him to crawl, scoot, and support the prosthetic device. Accordingly, the trial court’s award of an additional 20% loss of function in his left leg already compensated the worker for the additional injury beyond the amputation.
The takeaway from this determination is that the amputation of a scheduled member, such as a foot or hand, can result in an additional PPD award to the remaining parts of the limb. However, the Nebraska Supreme Court will not allow for the total loss of an entire limb when only part of the limb has been amputated when there is evidence of some residual function in the limb.
Additional Award for Toes Not Supported by Foot Amputation. Using the language of Nebraska’s workers’ compensation laws, the Nebraska Supreme Court rejected the worker’s argument that the loss of his left leg below the knee should result in an additional award for the loss of his individual toes on his left foot. In making this determination, the Nebraska Supreme Court also observed that the trial court specifically avoided providing the worker with double recovery for the foot amputation and residual leg injury.
Timing of PPD Benefits for Amputation Remains Undecided. With respect to the penalty, interest, and attorney fees for late payment of PPD benefits, the worker argued that the employer should have paid PPD benefits when his TTD benefits ceased in March 2016. The employer argued that there was a reasonable controversy as to whether it should pay PPD benefits when the TTD benefits ceased or when the worker reached MMI. The trial court did not order the employer to pay a penalty, interest, or attorney fees, stating that Nebraska’s appellate courts had not yet ruled on this issue. Without making a determination, the Nebraska Supreme Court simply agreed that it had not yet ruled when PPD benefits should be paid for an amputated member.
The takeaway is that the timing of PPD benefits for amputation remains undecided. At this point in time, an employer who waits until there is an MMI opinion before paying PPD benefits for an amputated member likely will not be subject to interest, penalties, or attorney fees. However, because an employer would not expect an amputated member to improve, the employer can avoid this controversy altogether by paying PPD benefits when TTD payments cease.
As always, reach out to us. If you have any questions about the Melton case and its effect on any matters you are reviewing, please do not hesitate to reach out to our talented attorneys. Sodoro Law Group is a full-service law firm answering to the legal needs of Nebraska, Iowa, Kansas, Missouri and South Dakota. For more information, or to contact the team at Sodoro Law Group, go to sodorolaw.com or email Kelsey Sievers at ksievers@sodorolaw.com