Broken Ankle Results in Permanent Total Disability for Nebraska Truck Driver

Illustrating yet again, that the age-old adage that an employer generally takes an employee as it finds him or her, a Nebraska appellate court affirmed a finding by the state’s Workers’ Compensation Court (“WCC”) that awarded permanent total disability benefits to a truck driver who sustained an ankle fracture when he stepped out of his truck and slipped and fell on ice [Oaten v. Crete Carrier Corp., 2020 Neb. App. LEXIS 98 (Apr. 7, 2020). In the decision, which was not designated for permanent publication, the Court stressed that its job was not to reweigh the evidence. There was evidence before the WCC that following his injury, the driver could not perform the stooping, bending, and climbing activities required of a truck driver. That he was able to drive an automobile from Tennessee to California, and then take a cruise from California to Hawaii (he later also cruised to Panama) certainly conflicted with the employee’s proffered evidence, but the WCC’s decision would stand.

Background

After his fall in March 2015, Oaten filed a workers’ compensation claim. The employer admitted the right ankle fracture injury, but argued any long-term disability was the result of a preexisting condition, not the March 2015 injury itself. There was considerable conflict in the medical evidence. Oaten had passed a physical examination at the time of his hiring in January 2014. No limitations were placed on him at that time. The driving job required Oaten to perform a safety inspection of his truck and trailer, an activity that entailed bending, stooping, and climbing.

Oaten had a total left knee replacement one year prior to his employment and suffered some low back pain prior to the ankle fracture as well. The employer’s physician noted that Oaten suffered multilevel degenerative disc disease and Oaten acknowledged that prior to the ankle fracture, he had undergone a steroid injection.

Oaten testified that after the ankle fracture healed, he was still unable to perform the necessary inspection activity required in his former position. He testified that he could not perform regular household chores and the like. At his hearing, he did admit, however, that that he nevertheless had hooked up his 20-foot camper to his truck and gone camping approximately twice since his injury. He said that he has also driven from Tennessee to California in his pickup and then taken a cruise from California to Hawaii. Additionally, he took a cruise to Panama in February 2017.

Four Factors to be Considered

The appellate court acknowledged that the medical opinion offered by an independent medical examiner in February 2018 significantly differed from the opinions offered by Oaten’s specialists, but the court stressed it was not within its province to reweigh the evidence. Four factors were to be considered by the fact-finder under R.R.S. Neb. § 48-121:

1. The worker’s eligibility to procure employment generally,
2. His or her ability to earn wages,
3. His or her ability to hold a job obtained, and
4. His or her capacity to perform the work in the job in which the worker is engaged.

Here, Oaten produced medical testimony that he could not perform his former work. Though not cited by the WCC, the appellate court observed that its findings were supported by the report of the court appointed vocational rehabilitation counselor, who said that if the IME’s opinion was adopted as the prevailing medical opinion, it was the vocational counselor’s opinion that Oaten had experienced a loss of earning power of 100 percent as the result of his March 7, 2015 work injury.

Commentary

This case, of course, illustrates the interplay between an employee’s work-related injury and his or her co-morbid conditions. There was evidence here that Oaten had some difficulties with his back and lower extremities prior to the ankle fracture. Yet he passed a pre-employment physical and was able to perform the duties required by the job prior to his ankle break. An employer can argue that a worker was a “time bomb” ready to go off, but that generally is not a winning position. Here, Oaten could perform the job before the ankle fracture and he offered medical experts who opined that after the break he could not. That evidence, coupled with the rehab counselor’s findings were sufficient to support an award of permanent total disability benefits.