Thom v. Lutheran Medical Center & Alexsis, Inc.

414 N.W.2d 810, 226 Neb. 737, 1987 Neb. LEXIS 1066
CourtNebraska Supreme Court
DecidedOctober 30, 1987
Docket87-126
StatusPublished
Cited by24 cases

This text of 414 N.W.2d 810 (Thom v. Lutheran Medical Center & Alexsis, Inc.) is published on Counsel Stack Legal Research, covering Nebraska Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Thom v. Lutheran Medical Center & Alexsis, Inc., 414 N.W.2d 810, 226 Neb. 737, 1987 Neb. LEXIS 1066 (Neb. 1987).

Opinion

Caporale, J.

The defendant employer, Lutheran Medical Center, at Omaha, and its insurer, Alexsis, Inc., appeal the Workers’ Compensation Court award of benefits to the plaintiff-appellee employee, Roslynn Thom. The issues presented by the assignments of error argued by appellants are whether the evidence supports the compensation court’s findings that Thom (1) suffered a loss of earning power and (2) is entitled to vocational rehabilitation services. We affirm.

The parties stipulated that on April 7, 1985, Thom, a registered nurse, suffered an injury to her back, while lifting a patient, in an accident arising out of and in the course of her employment as a staff nurse. After seeing an emergency room physician, Thom went to her family physician, who referred her to a neurosurgeon. In June 1985, she underwent the removal of two herniated disks. On January 31, 1986, the treating neurosurgeon released Thom to return to work, having stated she had a 7- to 10-percent disability of the body and would be limited in terms of lifting, bending, stooping, and sitting for prolonged periods of time. Thom later saw an orthopedist, who was of the opinion that she suffered a 20- to 25-percent disability of the body.

Thom testified that she continues to have back pain which radiates to her left leg and produces numbness.

Thom is a 36-year-old high school graduate who has been employed in the nursing field since 1977. She first became licensed as a practical nurse and later obtained an associate degree in nursing science. She had worked at Lutheran Medical Center since 1980 and at the time of the accident was earning $9.46 per hour, or $19,676.80 per year, as a staff nurse caring for patients. After being released by the treating neurosurgeon as having reached maximum improvement, Thom was unsuccessful in her efforts to find employment in which she could use her training and experience.

A vocational rehabilitation specialist provided placement assistance to Thom from December 1985 to February 1986, when the effort was terminated. During this period, the *739 specialist and Thom discussed the possibility that Thom return to school. Thom ultimately enrolled in a college in order to obtain a bachelor’s degree in business with a focus on “accounting and computers,” a program which will take 2 years of full-time study. The evidence is that the program of study Thom is pursuing leads to jobs with entry level salaries of between $ 18,000 and $24,000 per year.

After she finished working with Thom, the vocational rehabilitation specialist conducted a labor market survey, looking for jobs which existed in the Omaha area which could be performed within Thom’s physical limitations and suitable for one with her training and experience. The specialist found several light and sedentary jobs to exist, such as supervising nurse, nursing home director, admissions director, and industrial nurse. The jobs paid up to $27,800 per year.

It was this witness’ opinion that Thom was employable without further training, but she admitted that a degree would enhance Thom’s employability and that the accident made her less employable than she had been. The vocational rehabilitation specialist also testified that, while in her judgment it was probable that Thom could have obtained the jobs she described, there were a variety of factors other than physical qualifications to be considered. The witness admitted that a person with a degree would be preferred over one without a degree and that at least one prospective employer had stated a predilection for hiring from within its organization. This specialist did not attempt to actually place Thom in a job.

The coordinator of a medical employment pool which makes most of its placements in temporary work testified that there were jobs which Thom could perform within her physical limitations, such as directing nurses in a home health care agency, taking care of premature babies, adjusting for insurance companies, and working in a doctor’s office. These jobs would pay between $8.50 and $10 per hour, or up to $20,800 per year, assuming a 40-hour week. It was also this witness’ opinion that Thom was employable without further education or training.

The employment coordinator for Lutheran Medical Center testified that Thom’s application for employment with the *740 center as a utilization review coordinator was rejected because there were other better qualified applicants and that Thom’s inquiry regarding employment as a staff nurse in the center’s addictive diseases section was answered negatively because of her physical limitations. This witness testified that the health care industry is undergoing changes, but notwithstanding the fact that the center is reducing its nursing staff, there is “kind of a nursing crunch and we are having a hard time filling nursing positions right now, but they are staff nursing positions.”

This case is resolved by the oft-repeated principle that the findings of fact made by the Workers’ Compensation Court after rehearing have the same force and effect as a jury verdict in a civil case and will not be set aside unless clearly wrong. Nice v. IBP, inc., ante p. 538, 412 N.W.2d 477 (1987); Neb. Rev. Stat. § 48-185 (Cum. Supp. 1986).

Earning power, as used in Neb. Rev. Stat. § 48-121(2) (Cum. Supp. 1986), is measured by an evaluation of a worker’s general eligibility to procure and hold employment, the worker’s capacity to perform the required tasks, and the worker’s ability to earn wages in employment for which he or she is engaged or fitted. Snyder v. IBP, Inc., 222 Neb. 534, 385 N.W.2d 424 (1986). Earning power is synonymous neither with wages, Aldrich v. ASARCO, Inc., 221 Neb. 126, 375 N.W.2d 150 (1985), nor with loss of physical function, Scamperino v. Federal Envelope Co., 205 Neb. 508, 288 N.W.2d 477 (1980). Nonetheless, loss of physical function may affect a worker’s eligibility to procure and hold employment, his or her capacity to perform the required tasks, and the ability to earn wages in employment for which he or she is engaged or fitted. Thus, while there is no numerical formula for determining one’s earning power following an injury to the body as a whole, Aldrich v. ASARCO, Inc., supra, the extent of such impairment or disability may provide a basis for determining the amount of that worker’s loss of earning power. E.g., Smith v. University of Nebraska Medical Center, 201 Neb. 730, 271 N.W.2d 852 (1978), modified after reh’g on other grounds 202 Neb. 493, 276 N.W.2d 86

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Bluebook (online)
414 N.W.2d 810, 226 Neb. 737, 1987 Neb. LEXIS 1066, Counsel Stack Legal Research, https://law.counselstack.com/opinion/thom-v-lutheran-medical-center-alexsis-inc-neb-1987.