Armstrong v. State
290 Neb. 205
| Neb. | 2015Background
- Terry J. Armstrong, a state nurse, injured her left shoulder at work (May 22, 2010) and underwent surgery; parties stipulated to a compensable rotator cuff tear.
- Post‑surgery she was diagnosed by claimant’s expert with complex regional pain syndrome (CRPS) and opined to be limited to 4‑hour workdays; state‑retained examiners disagreed.
- Armstrong sought TTD through Oct 8, 2013 and permanent total disability thereafter; the Workers’ Compensation Court awarded TTD through Oct 8, 2013 and permanent partial disability based on a 75% loss of earning power.
- The court found Armstrong permanently partially disabled (75% loss) based on the vocational report using the 4‑hour/day restriction and observed trial evidence; it denied waiting‑time penalty, attorney fees, and interest because a reasonable controversy existed based on evidence presented at trial.
- Armstrong also claimed unawarded mileage for pretrial medical trips (Exhibit 22); the court awarded mileage for later trips (Exhibit 53) but overlooked Exhibit 22.
- On appeal, the Supreme Court affirmed the 75% partial disability award, affirmed denial of waiting‑time penalties, but remanded for the court to consider Exhibit 22 mileage.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a worker permanently restricted to part‑time (4 hours/day) is, as a matter of law, totally disabled | Armstrong: a permanent restriction preventing full‑time work means total disability; weekly wage calc on 40‑hour basis implies zero earning power | State: confuses wages with earning power; inability to work full time does not automatically equal total disability | A worker is not automatically totally disabled solely because unable to work full time; earning power and wages differ; factual inquiry remains |
| Whether the State’s lack of TTD payments (stopped Apr 2012) mandates a waiting‑time penalty, fees, interest | Armstrong: reasonable controversy must exist at the time benefits were denied; no such evidence then | State: evidence adduced at trial (expert medical conflicts) establishes a reasonable controversy justifying denial | Denial of penalty, fees, interest affirmed—evidence presented at trial (even if developed later) can establish a reasonable controversy |
| Sufficiency of evidence supporting 75% loss of earning power | Armstrong: argues 20‑hour workweek cannot be suitable gainful employment as matter of law | State: vocational analysis and trial observations support partial disability calculation | Court’s factual finding of 75% loss of earning power affirmed; appellate court will not reweigh credibility |
| Whether employer must pay plaintiff’s pretrial mileage expenses (Exhibit 22) | Armstrong: court overlooked Exhibit 22 and should award those miles | State: does not dispute oversight | Remanded: court to reconsider Exhibit 22 and determine which trips, if any, are compensable under §48‑120 |
Key Cases Cited
- Money v. Tyrrell Flowers, 275 Neb. 602 (statutory definition and standards for total disability)
- Mueller v. Lincoln Public Schools, 282 Neb. 25 (application of §48‑121(4) extending workweek to 40 hours for wage calculation)
- Becerra v. United Parcel Service, 284 Neb. 414 (using 40‑hour wage calculation for vocational priority analysis)
- Davis v. Goodyear Tire & Rubber Co., 269 Neb. 683 (earning power distinct from wages under §48‑121)
- Giboo v. Certified Transmission Rebuilders, 275 Neb. 369 (restriction on hours reduces jobs available and affects earning capacity analysis)
- Lovelace v. City of Lincoln, 283 Neb. 12 (discussion of odd‑lot doctrine and total disability findings)
- Dawes v. Wittrock Sandblasting & Painting, 266 Neb. 526 (evidence developed after denial can show reasonable controversy for §48‑125)
- Mendoza v. Omaha Meat Processors, 225 Neb. 771 (test for "reasonable controversy" under §48‑125)
- McBee v. Goodyear Tire & Rubber Co., 255 Neb. 903 (conflicting medical testimony can create reasonable controversy)