Dual Purpose Doctrine and LOE vs higher wages Straub v City of Scottsbluff

In a case recently decided by the Nebraska Supreme Court, Straub v. City of Scottsbluff 280 Neb. 163 (July 2, 2010), two important issues were discussed.   These issues involve the dual purpose doctrine, and whether there can be a loss of earning power if the injured worker returns to employment and makes the same wage or even more money than they did before the injury.
Robert Straub was a sergeant with the Scottsbluff Police Department who was first injured on the job when he was struck by a passing vehicle during a routine traffic stop. Soon after returning to work, Straub took time off to go to a medical appointment related to his work injury. On the way to the appointment, Straub took his children to their babysitter and then drove on to the hospital. While enroute to the appointment Straub was involved in another motor vehicle accident that caused an injury to his shoulder. The workers’ compensation insurance carrier denied coverage for the shoulder injury.  To add insult to injury, the insurer also refused to pay compensation for Sergeant Straub’s loss of earning power because he returned to work at the same wage he had before he was injured, and even obtained a higher wage at that job.  Sergeant Straub did what any wise, but injured, worker would do. He hired a work comp lawyer. 

First, the Nebraska Supreme Court discussed a legal theory known as the dual purpose doctrine. The dual purpose rule states that if an employee is injured in an accident while on a trip which serves both a business purpose and a personal purpose, the injuries are compensable, if the trip involves some service provided for the employer’s behalf. Also included in the dual purpose rule is an employee’s injury which occurs while enroute to a required medical appointment that is related to a compensable injury.  So, in summary, take the example of a worker that gets injured on the job. That injured worker travels to a medical appointment and gets involved in a car crash and suffers additional injury.  That additional injury is also covered by workers’ compensation insurance so long as the route chosen by the injured worker is reasonable and practical.   Thus, Sergeant Straub’s second injury to his shoulder was covered by workers’ compensation insurance.
The Nebraska Supreme Court also discussed the situation where an injured worker returns to work after healing from the injury, and makes more money than he/she did before the injury.   Can that worker receive compensation for a loss of earning power?  Possibly, says the Nebraska Supreme Court.   In Nebraska, earning power is not necessarily synonymous with wages, but the ability to obtain work and perform the tasks of the work. This means that even though an injured employee returns to their same job and is paid the same, or even a higher wage, there can still be a loss of earning power.   Therefore, Sergeant Straub’s award of compensation for a loss of earning power was affirmed by the Nebraska Supreme Court.