Bishop v. Speciality Fabricating Co.

K aren a. Bishop, appellant, v. speciality
FaBricating co., a corporation, appellee .
760 N.W.2d 352
Filed February 13, 2009. 	No. S-08-527.
1. Workers’ Compensation: Appeal and Error. Under Neb. Rev. Stat. § 48-185
(Reissue 2004), an appellate court may modify, reverse, or set aside a Workers’
Compensation Court decision only when (1) the compensation court acted with-
out or in excess of its powers; (2) the judgment, order, or award was procured
by fraud; (3) there is not sufficient competent evidence in the record to warrant
the making of the order, judgment, or award; or (4) the findings of fact by the
compensation court do not support the order or award.
2. ____: ____. Upon appellate review, the findings of fact made by the trial judge of
the compensation court have the effect of a jury verdict and will not be disturbed
unless clearly wrong.
3. Workers’ Compensation: Evidence: Appeal and Error. In testing the sufficiency
of the evidence to support the findings of fact by the Workers’ Compensation
Court, the evidence must be considered in the light most favorable to the suc-
cessful party, every controverted fact must be resolved in favor of the successful
party, and the successful party will have the benefit of every inference that is
reasonably deducible from the evidence.
4. Workers’ Compensation. When a worker sustains a scheduled member injury and
a whole body injury in the same accident, the Nebraska Workers’ Compensation
Act does not prohibit the court from considering the impact of both injuries in
assessing the loss of earning capacity. In making such an assessment, the court
must consider whether the scheduled member injury adversely affects the worker
such that the loss of earning capacity cannot be fairly and accurately assessed
without considering the impact of the scheduled member injury upon the work-
er’s employability.
5. ____. When a whole body injury is the result of a scheduled member injury, the
member injury should be considered in the assessment of the whole body impair-
ment. Under such circumstances, the trial court should not enter a separate award
for the member injury in addition to the award for loss of earning capacity. To
allow both awards creates an impermissible double recovery.
Appeal from the Workers’ Compensation Court. Affirmed.
James F. Fenlon, P.C., for appellant.
Bradley D. Shidler, of Hotz, Weaver, Flood, Breitkreutz &
Grant, for appellee.
heavican, 	c.J., 	Wright, 	connolly, 	gerrard, 	stephan,
MccorMacK, and M iller-lerMan, JJ.
BISHoP v. SPeCIAlITy FABRICATING Co. 	171
Cite as 277 Neb. 171
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:51 AM CST

stephan, J.
This appeal from the Nebraska Workers’ Compensation
Court raises the issue of whether a scheduled member injury
may be separately compensated when it causes a psycho-
logical injury for which the worker receives nonscheduled
benefits based upon loss of earning power. We agree with the
compensation court that a separate award is not permitted in
these circumstances.
BACKGRoUND
Karen A. Bishop was employed by Speciality Fabricating
Co. (Speciality) at the time of her injury on April 29, 2003. A
grinder she was using to bore a hole in an I-beam slipped and
cut her left wrist, injuring a tendon and nerve. Bishop under-
went two surgical procedures to repair damage caused by this
scheduled member injury.1
After being released for work by her physician, Bishop
returned to her job at Speciality but experienced difficulty
working around industrial machinery. She testified that any
noise from the machinery made her heart palpitate and that
some noises caused her to run outside and cry. Bishop left
Speciality early on September 12, 2003, and never returned.
During a September 23, 2003, appointment with her sur-
geon, Bishop expressed anxiety about her ability to perform
her duties at work and mentioned she had considered seeing a
psychiatrist to discuss her concerns. Her surgeon referred her
to a university psychiatry department, where she was diagnosed
with posttraumatic stress disorder (PTSD) and situational anxi-
ety and depression. Dr. William Marcil, an omaha psychiatrist,
treated Bishop. In Marcil’s opinion, given with a reasonable
degree of medical certainty, Bishop had a 25-percent perma-
nent impairment of the body as a whole resulting from these
mental conditions.
Bishop underwent vocational rehabilitation and completed
an associate degree program to become a drafting technician.
She was hired by Nebraska Boiler, located in lincoln, and paid
$14 per hour. Bishop found, however, that if she was exposed
1 See Neb. Rev. Stat. § 48-121 (Reissue 2004).
172 	277 NeBRASKA RePoRTS

to industrial noises in the production shop for more than 5
minutes, she became nervous and occasionally cried. Because
of this, Bishop quit her job at Nebraska Boiler on August 18,
2006. She moved to Missouri, where she was employed at the
time of the trial as a receptionist and secretary, earning $11
per hour.
Prior to trial, Bishop received a 22-percent impairment rat-
ing on her left arm and was paid $12,285.74 in permanent par-
tial disability benefits for this scheduled member injury. Two
experts evaluated her loss of earning capacity. Gloria Bennett,
a court-appointed counselor, concluded that Bishop had sus-
tained a 12-percent loss of earning power, after considering the
mental and physical restrictions resulting from both injuries.
Richard Metz, a vocational rehabilitation counselor hired by
Bishop, found that Bishop sustained a 20- to 24-percent loss of
earning power. Metz’ assessment was made after Bishop com-
pleted vocational rehabilitation.
Metz relied in part upon the evaluations of Marcil. According
to Marcil, Bishop has a 25-percent permanent impairment of
the body as a whole due to the fear of operating power tools
and machinery that Bishop developed after her April 29, 2003,
accident. In August 2006, Marcil gave Bishop work restrictions
which precluded her from using power tools. She was also
restricted from working on assembly lines, at manufacturing
or production shops, or in any other areas where there was
machinery noise.
The trial judge determined that Bishop experienced a 35-
percent permanent loss of earning power, which entitled her to
$111.60 per week for 1733⁄7 weeks, less credit for permanent
indemnity paid on the scheduled member impairment in the
amount of $12,285.74. Citing Madlock v. Square D Co.,2 the
court noted that “[w]hen a whole body injury (anxiety, PTSD)
is the result of an accident and injury to a scheduled member
and the two are combined to determine permanent loss of earn-
ing power, the plaintiff is not entitled to a separate, additional
award for the member injury.”
2 Madlock v. Square D Co., 269 Neb. 675, 695 N.W.2d 412 (2005).
BISHoP v. SPeCIAlITy FABRICATING Co. 	173
Cite as 277 Neb. 171

Bishop applied for review of this determination, assigning
as error that the court failed to award benefits for a 20-percent
loss of use of her left arm. The review panel affirmed, find-
ing that the trial court took into account the impairments and
restrictions to Bishop’s left arm when it determined her loss of
earning power.
ASSIGNMeNTS oF eRRoR
Bishop 	assigns, 	consolidated 	and 	restated, 	(1) 	that 	the
court’s award failed to satisfy a rule of the Nebraska Workers’
Compensation Court requiring the trial judge to specify the
evidence upon which he or she relies and issue an opinion
which affords a basis for meaningful appellate review, (2) that
the court erred in concluding that her permanent loss of earn-
ing power based on PTSD and depression could not be fairly
and accurately assessed without considering the impact of the
scheduled member injury upon her employability, and (3) that
the court erred in failing to award additional disability benefits
for Bishop’s scheduled member injury.
STANDARD oF ReVIeW
[1] Under Neb. Rev. Stat. § 48-185 (Reissue 2004), an
appellate court may modify, reverse, or set aside a Workers’
Compensation Court decision only when (1) the compensa-
tion court acted without or in excess of its powers; (2) the
judgment, order, or award was procured by fraud; (3) there is
not sufficient competent evidence in the record to warrant the
making of the order, judgment, or award; or (4) the findings
of fact by the compensation court do not support the order
or award.3
[2,3] Upon appellate review, the findings of fact made by
the trial judge of the compensation court have the effect of a
jury verdict and will not be disturbed unless clearly wrong.4 In
testing the sufficiency of the evidence to support the findings
3 Money v. Tyrrell Flowers, 275 Neb. 602, 748 N.W.2d 49 (2008); Knapp
v. Village of Beaver City, 273 Neb. 156, 728 N.W.2d 96 (2007); Worline
v. ABB/Alstom Power Int. CE Servs., 272 Neb. 797, 725 N.W.2d 148
(2006).
4 Money v. Tyrrell Flowers, supra note 3.
174 	277 NeBRASKA RePoRTS

of fact by the Workers’ Compensation Court, the evidence
must be considered in the light most favorable to the success-
ful party, every controverted fact must be resolved in favor
of the successful party, and the successful party will have the
benefit of every inference that is reasonably deducible from
the evidence.5
ANAlySIS
Contrary to Bishop’s contention, the trial judge issued a
reasoned opinion specifying the evidence upon which he based
the award. The court considered the evaluations performed by
Bennett and Metz but found that both were deficient in that
they did not take into account Bishop’s inability to maintain
her employment at Nebraska Boiler due to her recurrent,
increased anxiety caused by proximity to industrial machin-
ery. The court concluded that it could properly consider this
evidence as a part of the totality of the evidence presented at
trial in arriving at its conclusion that Bishop experienced a
35-percent permanent loss of earning power. The trial judge
also made specific findings that Bishop’s situational depression
and PTSD resulted from her scheduled member injury and that
permanent loss of earning power could not be fairly and accu-
rately assessed without considering the impact of the scheduled
member injury. These findings are sufficient for us to engage
in meaningful appellate review, which includes an assessment
of whether there is sufficient competent evidence to support
the award.6
Bishop does not challenge the trial court’s finding that she
sustained a 35-percent loss of earning capacity, a higher rating
than that given by either Bennett or Metz. She takes issue only
with the court’s determination that Speciality should receive a
credit in the amount of the permanent indemnity benefits which
it had previously paid on the scheduled member injury. In other
words, Bishop contends that the court erred in not separately
5 See Zavala v. ConAgra Beef Co., 265 Neb. 188, 655 N.W.2d 692 (2003),
citing Frauendorfer v. Lindsay Mfg. Co., 263 Neb. 237, 639 N.W.2d 125
(2002).
6 See Workers’ Comp. Ct. R. of Proc. 11(A) (2009).
BISHoP v. SPeCIAlITy FABRICATING Co. 	175
Cite as 277 Neb. 171

compensating her for the scheduled member and whole body
injuries. In Zavala v. ConAgra Beef Co.7 and Madlock v. Square
D Co.,8 this court examined the compensability of a scheduled
member injury and an injury to the body as a whole sustained
in the same accident.
[4] In Zavala, a worker sustained a scheduled member
injury to her right arm and a whole body injury to her back
in the same industrial accident. Noting that the Nebraska
Workers’ Compensation Act does not specifically address how
compensation is to be established in this circumstance, this
court concluded that when a worker sustains a scheduled mem-
ber injury and a whole body injury in the same accident, the
act does not prohibit the court from considering the impact of
both injuries in assessing the loss of earning capacity. We held
that in making such an assessment, the court must consider
whether the scheduled member injury adversely affects the
worker such that the loss of earning capacity cannot be fairly
and accurately assessed without considering the impact of the
scheduled member injury upon the worker’s employability.
We remanded the cause to the compensation court for further
consideration in light of that holding, but did not address “the
issue of whether a separate award for the scheduled member
injury is permitted when considering the scheduled member
injury with the whole body injury in the assessment of the loss
of earning capacity.”9
That issue was before us in Madlock. There, the worker sus-
tained a scheduled member injury to her foot which altered her
gait and resulted in a low-back condition. The trial judge con-
sidered the scheduled member injury in determining the loss
of earning power caused by the back injury, but made separate
awards for each. A review panel of the Workers’ Compensation
Court concluded that the trial judge had properly considered
the impact of the member injury in awarding loss of earning
capacity but erred in making a separate award for the member
7 Zavala v. ConAgra Beef Co., supra note 5.
8 Madlock v. Square D Co., supra note 2.
9 Zavala v. ConAgra Beef Co., supra note 5, 265 Neb. at 200, 655 N.W.2d
at 702.
176 	277 NeBRASKA RePoRTS

injury. In the worker’s appeal, we framed the issue as a ques-
tion of law: “whether a worker may recover benefits for both
a scheduled member injury and a whole body injury resulting
in loss of earning capacity when the member injury was taken
into consideration in determining the loss of earning capac-
ity.”10 After examining authority from other jurisdictions, we
concluded that the whole body injury could not be separated
from the scheduled member injury because both arose from
the same accident and that if the worker had not sustained the
scheduled member injury to her foot, she would not have sus-
tained the injury to her back which entitled her to benefits for
loss of earning capacity. We reasoned that under these circum-
stances, the trial court was required to consider the scheduled
member injury in awarding benefits because the loss of earning
capacity could not be fairly and accurately assessed without
such consideration. Referring to the scheduled member injury
as “an essential factor” in determining the loss of earning
capacity award, we concluded that the review panel correctly
determined that by allowing a separate award for the scheduled
member injury, the trial court had awarded a greater recovery
than that to which the worker was entitled.11
[5] Bishop argues that this case is distinguishable from
Madlock because her scheduled member injury was not an
“essential factor” with respect to her whole body impairment
resulting from PTSD and depression. Specifically, she argues
that because her wrist injury was not “required for the con-
tinued existence of her mental and emotional restrictions”12 in
the same sense as the foot injury and resulting gait impairment
were linked to the back injury in Madlock, she was entitled
to a separate award for the scheduled member injury. This
argument focuses too narrowly on the “essential factor” lan-
guage in Madlock and ignores what precedes and follows that
phrase. Read in context, the phrase “essential factor” as used in
Madlock pertains to causation. In this case, as in Madlock, both
10 Madlock v. Square D Co., supra note 2, 269 Neb. at 679, 695 N.W.2d at
415.
11 Id. at 682, 695 N.W.2d 418.
12 Brief for appellant at 13 (emphasis omitted).
BISHoP v. SPeCIAlITy FABRICATING Co. 	177
Cite as 277 Neb. 171

the scheduled member injury and the whole body injury arose
from the same accident. If Bishop had not injured her wrist,
she would not have sustained a compensable psychological
injury inasmuch as a work-related injury caused by a mental
stimulus is not compensable.13 The trial judge made a specific
finding that “but for [Bishop’s] accident and scheduled member
injury she would not have experienced the PTSD and depres-
sion,” and there is competent evidence to support this finding
of causation. Therefore, this case presents the same factual cir-
cumstances held in Madlock to require the compensation court
to consider the scheduled member injury in awarding benefits
for loss of earning capacity. When a whole body injury is the
result of a scheduled member injury, the member injury should
be considered in the assessment of the whole body impairment.
Under such circumstances, the trial court should not enter a
separate award for the member injury in addition to the award
for loss of earning capacity. To allow both awards creates an
impermissible double recovery.14
CoNClUSIoN
The trial judge issued a reasoned opinion which included
factual findings supported by competent evidence. By consider-
ing Bishop’s scheduled member injury in determining Bishop’s
loss of earning capacity, but not awarding separate benefits for
the scheduled member injury, the trial judge correctly applied
the law as stated in Zavala and Madlock. We therefore affirm
the judgment of the review panel which affirms the award.
aFFirMed.
13 See Zach v. Nebraska State Patrol, 273 Neb. 1, 727 N.W.2d 206 (2007).
14 Madlock v. Square D Co., supra note 2.
178 	277 NeBRASKA RePoRTS