Picard v. P & C Group 1, 306 Neb. 292

Background

Halina Picard worked for P & C Group 1 since 1989 and suffered two workplace injuries: bilateral carpal tunnel in 2012 (wrist surgeries) and a herniated lumbar disk in 2015 (discectomy).
After the 2012 injury she was restricted (5 lb lifting, occasional overhead) and the compensation court found a 75% loss of earning power for that injury; P & C paid temporary and some permanent benefits.
After the 2015 back surgery she was given spine-related restrictions (no bending to floor, occasional bending/squatting/twisting, 10 lb limit) but returned to the same accommodated job, remained employed full time, and earned a higher hourly rate.
Vocational testimony estimated ~60% loss from the 2012 injury and 50–55% from the 2015 injury; the Workers’ Compensation Court awarded whole-body permanent partial disability for both injuries (75% for 2012; 55% for 2015) and awarded penalties/attorney fees under §48-125 for the 2015 award.
The Nebraska Court of Appeals affirmed the two disability awards but reversed and vacated the §48-125 penalties/fees, noting uncertainty in apportionment law; both parties sought further review, and the Supreme Court granted P & C’s petition and accepted Picard’s cross-appeal.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether apportionment may be applied to successive whole-body injuries outside §48-128	Picard: No apportionment; employer liable for full disability absent statute	P & C: Apportionment should apply to avoid double liability for preexisting disability	Held: Absent a statute (Second Injury Fund ended for post-1997 injuries), Nebraska applies the full-responsibility rule; apportionment inapplicable here
Whether Picard suffered additional loss of earning power from the 2015 back injury	Picard: Successive injury to a different body part justifies an independent award	P & C: No additional loss of earning power—she remained employed and paid more; no compensable loss under §48-121(2)	Held: Court reversed the 2015 award — loss of earning power must be measured considering preexisting disability; no further loss shown, so 2015 award not compensable
Whether §48-125 penalties and attorney fees were proper for the 2015 claim	Picard: No reasonable controversy existed; penalties/fees warranted	P & C: Reasonable controversy existed due to unsettled law on apportionment and successive whole-body awards	Held: Court agreed with Court of Appeals that a reasonable controversy existed; vacated penalties/fees for the 2015 award
Whether Picard’s cross-appeal on the fees/penalties issue could be entertained after her petition for further review was denied	Picard: Cross-appeal properly perfected under Supreme Court rules	P & C: (implicit) cross-review not proper since her petition denied	Held: Court had jurisdiction over Picard’s cross-appeal because it complied with the court rules for cross-appeals on further review

Key Cases Cited

Heiliger v. Walters & Heiliger Electric, Inc., 236 Neb. 459, 461 N.W.2d 565 (1990) (Nebraska applied full-responsibility rule and did not allocate disability absent a claim against the Second Injury Fund)
Jacob v. Columbia Ins. Group, 2 Neb. App. 473, 511 N.W.2d 211 (1994) (test for apportionability: prior impairment must have produced disability before and continue after the later accident)
Cummings v. Omaha Pub. Schools, 6 Neb. App. 478, 574 N.W.2d 533 (1998) (apportioned recovery where prior compensated disability continued as a source of lost earning capacity)
McBee v. Goodyear Tire & Rubber Co., 255 Neb. 903, 587 N.W.2d 687 (1999) (definition and standards for ‘‘reasonable controversy’’ under §48-125)
Swoboda v. Volkman Plumbing, 269 Neb. 20, 690 N.W.2d 166 (2004) (loss of earning power is a question of fact in workers’ compensation cases)
Davis v. Goodyear Tire & Rubber Co., 269 Neb. 683, 696 N.W.2d 142 (2005) (earning power under §48-121 includes employability and capacity to perform work, not merely wages)