Wiedel v. Lucile Duerr Hair Styling
A-17-304
| Neb. Ct. App. | Nov 14, 2017Background
- Catherine Wiedel, a licensed cosmetologist born in 1943, was injured at work in April 2009 while employed full time in Lincoln, Nebraska. She returned to work in Sept. 2009 and worked full time through July 2013.
- In July 2013 Wiedel retired and moved to Hebron, Nebraska to be near family and then worked part-time (~28 hours/wk) as a stylist in Hebron by choice.
- Parties stipulated to March 2010 FCE restrictions (sedentary-light classification; qualified for constant sitting but not constant standing/walking; no kneeling/crawling).
- Agreed vocational counselor Michelle Holtz concluded Wiedel sustained a 25% loss of earning capacity (Lincoln or southeastern Nebraska market); rebuttal expert Helen Long opined 100% loss based mainly on FCE restrictions and limited rural job availability.
- Workers’ Compensation Court accepted Holtz’s opinion (finding Holtz entitled to statutory presumption of correctness), relied on Wiedel’s credible testimony that she could perform prior job with minimal difficulty, treated the hub-community issue as academic, and awarded 25% loss of earning capacity.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Appropriate hub community for measuring loss of earning capacity | Hebron should be hub since Wiedel relocated there after retirement | Lincoln (or southeastern Nebraska) remains appropriate because move and part-time work were by choice and she had successfully returned to full-time work in Lincoln | Court adopted Holtz’s view: hub choice was academic; 25% loss applied regardless and Lincoln assessment appropriate |
| Effect of parties’ stipulation to FCE permanent physical restrictions | Stipulation requires court to treat restrictions as dispositive toward higher loss (per Long) | Stipulation accepted but does not alone determine earning capacity; claimant’s testimony and real-world work abilities matter (per Holtz) | Court accepted stipulation as to facts but relied also on Wiedel’s testimony; did not treat FCE as dispositive of total loss |
| Weight of agreed-upon vocational expert’s opinion | Holtz’s presumption of correctness was rebutted by Long’s analysis | Holtz’s opinion is entitled to statutory rebuttable presumption and was consistent with claimant’s actual work history | Court held presumption not overcome; accepted Holtz’s 25% loss opinion |
| Whether claimant’s part-time post-move work indicates reduced earning capacity | Wiedel argues part-time work in Hebron reflects inability to perform full duties | Employer argues part-time work was voluntary (retirement and desire to take it easy) and she had worked full time without incapacity for years post-injury | Court found Wiedel’s move and reduced hours were voluntary; assessed actual earning capacity and found 25% loss |
Key Cases Cited
- Tchikobava v. Albatross Express, 293 Neb. 223, 876 N.W.2d 610 (appellate review standard for Workers’ Compensation Court decisions)
- Gardner v. International Paper Destruction & Recycling, 291 Neb. 415, 865 N.W.2d 371 (factual findings by Workers’ Compensation Court not disturbed unless clearly wrong)
- Frauendorfer v. Lindsay Mfg. Co., 263 Neb. 237, 639 N.W.2d 125 (earning power concept and role of claimant testimony vs. medical restrictions)
- Giboo v. Certified Transmission Rebuilders, 275 Neb. 369, 746 N.W.2d 362 (agreed vocational counselor’s opinion entitled to rebuttable presumption; hub-community relocation in good faith)
- Contreras v. T.O. Haas, LLC, 22 Neb. App. 276, 852 N.W.2d 339 (trial court may credit one expert over another; judge as sole credibility determiner)