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Our blog post from December 19, 2017, discussed the various types of indemnity benefits owed to injured workers in Nebraska. This blog will discuss loss of earning capacity (LOEC) in greater detail.

When an injured worker sustains a whole body injury*, his entitlement to permanent partial disability (PPD) benefits is measured by his LOEC. In order to be entitled to an LOEC, the injured worker must have permanent restrictions. A whole body impairment rating, by itself, is not enough to entitle an injured worker to an LOEC. Frauendorfer v. Lindsay Mfg. Co., 263 Neb. 237 (2002)).

The extent of an injured worker’s LOEC is typically determined by a vocational rehabilitation counselor, either agreed upon by the parties or assigned by the Nebraska Workers’ Compensation Court. The employer pays for the services of the agreed-upon or court-appointed vocational rehabilitation counselor. There are four factors considered in determining LOEC:

  1. Eligibility to procure employment generally;
  2. Ability to hold job obtained;
  3. Capacity to perform tasks of the work; and
  4. Ability of the injured worker to earn wages in the employment in which he is engaged or for which he is fitted.

See Sidel v. Travelers Ins. Co., 205 Neb. 541 (1980).

The agreed-upon or court-appointed counselor will review the records provided to him/her by the parties, meet with the injured worker to discuss his vocational background, then prepare a report which discusses the above Sidel factors and setting forth his/her opinion as to the extent of the injured worker’s LOEC. Please see our blog post from December 19, 2017, which discusses how to calculate PPD benefits once an LOEC opinion has been obtained.

If either party feels the agreed-upon or court-appointed vocational rehabilitation counselor’s opinion on LOEC is incorrect, they can obtain their own “rebuttal” opinion from a vocational counselor of their choosing. The services of the counselor providing the rebuttal opinion are paid for by the party who retained him/her. However, the agreed-upon or court-appointed counselor’s opinions are entitled to a “rebuttable presumption of correctness”, and his/her opinion will only be deemed rebutted by the court in limited circumstances, for instance, if there is some foundational or methodical error with his/her LOEC opinion.

If you have any questions regarding LOEC or the process by which an LOEC is obtained, please contact one of our skilled Nebraska workers’ compensation attorneys.


*An injury to two separate scheduled members arising out of the same accident may entitle an injured worker to an LOEC under the provisions of Neb. Rev. Stat. 48-121(3). This scenario is outside the scope of this blog, and will be addressed in greater detail in a subsequent blog. Stay tuned!