[Copyrighted Material Omitted]
Appeal from the Workers' Compensation Court: MICHAEL K. HIGH, Judge.
REVERSED AND REMANDED.
David M. Handley, of Dyer Law, P.C., L.L.O., for appellant.
Brynne E. Holsten, of Engles, Ketcham, Olson & Keith, P.C., for appellee.
HEAVICAN, C.J., WRIGHT, CONNOLLY, STEPHAN, MCCORMACK, MILLER-LERMAN, and CASSEL, JJ.
[288 Neb. 93] Miller-Lerman, J.
NATURE OF CASE
Charles Rodgers, the appellant, suffered injuries to both of his knees in a work-related accident on September 7, 2009. In its award filed July 3, 2013, the Workers' Compensation Court concluded that in order to perform a loss of earning capacity calculation under the third paragraph of Neb. Rev. Stat. § 48-121(3) (Reissue 2010), there must be expert opinion of permanent physical restrictions as to each injured scheduled [288 Neb. 94] member. Despite Rodgers' request, the court declined to consider a potential loss of earning capacity award in the absence of such proof as to the left knee and therefore limited its award to scheduled member benefits. Rodgers appeals. We conclude that the compensation court erred as a matter of law when it concluded that the absence of expert opinion of permanent physical restrictions as to the left knee precluded a loss of earning capacity calculation under the third paragraph of § 48-121(3). We reverse, and remand the cause for consideration consistent with our opinion.
STATEMENT OF FACTS
This case stems from a work-related accident that occurred on September 7, 2009, in which Rodgers suffered injuries to both of his knees. The parties stipulated to certain facts, described and adopted by the court as follows:
1. On September 7, 2009, plaintiff, . . . Rodgers, injured his knees arising out of and in the scope and course of his employment with the defendant, Nebraska State Fair.
2. Timely notice of the injury was given to the employer.
3. Venue is proper in the Nebraska Workers' Compensation Court.
4. At the time of [Rodgers'] injury, [Rodgers] was earning an average weekly wage of $480.36.
5. [Rodgers] has reached maximum medical improvement for his left knee on August 5, 2010, and was assigned a 2 percent impairment to his left lower extremity by Dr. Lawson.
6. [Rodgers] has reached maximum medical improvement for his right knee on October 25, 2011, as indicated by both Dr. Donovan and Dr. O'Neil and was assigned a 40 percent impairment to his right lower extremity by Dr. O'Neil.
7. The parties agree that all related medical and hospital expenses previously incurred by [Rodgers] have been or are in the process of being paid by the [Nebraska State Fair] pursuant to the Fee Schedule.
8. The parties agree that all future related medical [expenses] as defined by Neb. Rev. Stat. § 48-120 for [288 Neb. 95] [Rodgers'] right knee will be paid by the [Nebraska State Fair] pursuant to the Fee Schedule.
9. The parties agree that there are no penalties due.
Dr. John C. Yeakley initially treated Rodgers for his knee injuries. Dr. Yeakley performed surgery on the left knee on May 3, 2010. After Dr. Yeakley retired, Dr. Keith W. Lawson assumed Rodgers' care. In Dr. Lawson's report dated December 12, 2011, he stated that Rodgers reached maximum medical improvement for his left knee on August 5, 2010. Dr. Lawson opined that Rodgers had sustained a 2-percent permanent partial impairment to his left knee but assigned no permanent physical restrictions to the left knee.
Dr. Yeakley performed surgery on the right knee on February 1, 2010. Dr. Yeakley performed a second surgery on the right knee on November 29. ...