Kotas v. Tabitha, Inc., 070317 NEWC, 0057

• Case Date: July 03, 2017
• Court: Nebraska

JENNIFER KOTAS, Plaintiff, v. TABITHA, INC. and UNITED WISCONSIN INSURANCE COMPANY, Defendants. No. 0057 Doc. 216 Nebraska Workers Compensation July 3, 2017           ORDER           Thomas E. Stine, Judge.          This matter came on for hearing on June 28, 2017, on Plaintiff's Motion to Compel Appointment of Vocational Rehabilitation Counselor and to Continue Trial and for Attorney Fees. Plaintiff offered Exhibits 1 through 10 in support of her motion, and defendants had no objections. Exhibits 1 through 10 were received for purposes of plaintiff's motion.          Plaintiff requests this Court to appoint a vocational rehabilitation counselor to perform a loss of earning capacity evaluation. Plaintiff argues that her injury is an injury to her "body as a whole" and not a "scheduled member" injury and, therefore, that she is entitled to appointment of a counselor to perform a loss of earning capacity analysis to determine the appropriate permanent partial disability benefits. Neb. Rev. Stat. §§ 48-121(2) and 48-162.01. Defendants argue that plaintiff's injury is limited to her shoulder and arm and, therefore, is a scheduled member injury, and that plaintiff is not entitled to a loss of earning capacity evaluation. Neb. Rev. Stat. § 48-121(3).          Plaintiff's Petition alleges, "That the injury sustained was to her right shoulder." January 12, 2016, Petition . In its Answer, defendants admitted that plaintiff sustained an injury to her right shoulder. January 21, 2016, Answer . An injury to a shoulder is a scheduled member injury to the arm.

Disability as a basis for compensation under § 48-121(3) is determined by the "loss of use of a body member," not loss of earning power. See Risor v. Nebraska Boiler, 277 Neb. 679, 695, 765 N.W.2d 170, 185 (2009). The extent of disability to a scheduled member can be expressed in terms of percent. See, e.g., Castro v. Gillette Group, Inc., 239 Neb. 895, 479 N.W.2d 460 (1992).

Lenz v. Central Parking System, 288 Neb. 453, 462, 848 N.W.2d 623, 629 (2014).          Under Neb. Rev. Stat. § 48-121, impairments to the body as a whole...