Simpson v. Lincoln Public Schools

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
02/01/2022 08:09 AM CST
- 537 -
Nebraska Court of Appeals Advance Sheets
30 Nebraska Appellate Reports
SIMPSON v. LINCOLN PUBLIC SCHOOLS
Cite as 30 Neb. App. 537Lynne F. Simpson, appellant, v.
Lincoln Public Schools,
appellee.
___ N.W.2d ___
Filed January 25, 2022. No. A-21-297.
1. Workers’ Compensation: Appeal and Error. Pursuant to Neb. Rev.
Stat. § 48-185 (Reissue 2021), an appellate court may modify, reverse,
or set aside a Workers’ Compensation Court decision only when (1) the
compensation court acted without or in excess of its powers; (2) the
judgment, order, or award was procured by fraud; (3) there is not suf-
ficient competent evidence in the record to warrant the making of the
order, judgment, or award; or (4) the findings of fact by the compensa-
tion court do not support the order or award.
2. ____: ____. On appellate review, the factual findings made by the trial
judge of the Workers’ Compensation Court have the effect of a jury ver-
dict and will not be disturbed unless clearly wrong.
3. Workers’ Compensation: Judgments: Appeal and Error. In testing
the sufficiency of the evidence to support the findings of fact in a work-
ers’ compensation case, an appellate court considers the evidence in the
light most favorable to the successful party, every controverted fact must
be resolved in favor of the successful party, and the appellate court gives
the successful party the benefit of every inference reasonably deducible
from the evidence.
4. Workers’ Compensation. As the trier of fact, the Workers’ Compensation
Court is the sole judge of the credibility of witnesses and the weight to
be given their testimony.
5. Workers’ Compensation: Appeal and Error. Regarding questions of
law, an appellate court in workers’ compensation cases is obligated to
make its own decisions.
6. Workers’ Compensation. The test for determining whether a disability
is to a scheduled member or to the body as a whole is the location of the
residual impairment, not the situs of the injury.
- 538 -
Nebraska Court of Appeals Advance Sheets
30 Nebraska Appellate Reports
SIMPSON v. LINCOLN PUBLIC SCHOOLS
Cite as 30 Neb. App. 5377. ____. The goal of any average income test is to produce an honest
approximation of a workers’ compensation claimant’s probable future
earning capacity.
8. Workers’ Compensation: Wages. The determination of how the aver-
age weekly wage of a workers’ compensation claimant should be calcu-
lated is a question of law.
9. ____: ____. If the payment of wages was intended to be in lieu of com-
pensation, credit for the wages is allowed.
10. ____: ____. If an employee is paid his or her regular wage, although he
does no work at all, it is a reasonable inference that the allowance is in
lieu of compensation.
Appeal from the Workers’ Compensation Court: Thomas E.
Stine, Judge. Affirmed.
Joy Shiffermiller, of Shiffermiller Law Office, P.C., L.L.O.,
for appellant.
Joshua J. Schauer, of Perry, Guthery, Haase & Gessford,
P.C., L.L.O., for appellee.
Pirtle, Chief Judge, and Riedmann and Welch, Judges.
Riedmann, Judge.
INTRODUCTION
Lynne F. Simpson appeals the orders of the Nebraska
Workers’ Compensation Court that denied her motion for
appointment of an independent medical examiner and awarded
her benefits for a concussion injury resulting in temporary cog-
nitive deficits along with permanent loss of vision. We affirm
the compensation court’s orders.
BACKGROUND
Simpson was employed by Lincoln Public Schools (LPS)
from approximately 2009 to April 13, 2018. At the time of
the accident, she worked as a special education para­educator.
On August 31, 2017, Simpson was assisting a student, when
a heavy steel tray struck her on the right side of her head.
Shortly after being struck, Simpson experienced flashing
in her vision, nausea, headaches, and feeling “woozy” and
- 539 -
Nebraska Court of Appeals Advance Sheets
30 Nebraska Appellate Reports
SIMPSON v. LINCOLN PUBLIC SCHOOLS
Cite as 30 Neb. App. 537intoxicated. Over the following months, Simpson worked with
multiple physicians to resolve her issues.
On April 13, 2020, Simpson filed a petition in the compen-
sation court seeking temporary disability benefits, permanent
disability benefits, payment of medical expenses, vocational
rehabilitation benefits, and waiting-time penalties, attorney
fees, and interest.
Prior to trial, Simpson filed a motion for appointment of an
independent medical examiner. Following a hearing, the com-
pensation court issued an order overruling Simpson’s motion.
The compensation court reasoned that “[b]efore appointment
of an independent medical examiner, there must be a dispute
between the parties, and the dispute must be a medical dispute
between two medical experts.” The compensation court deter-
mined that the expert opinions of Dr. Adam T. Kafka and Dr.
Benjamin Biehl did not conflict, but, rather, supplemented each
other. Kafka’s opinion was that Simpson was able to return
to work with no restrictions and that she had reached maxi-
mum medical improvement (MMI). Biehl’s opinion was that
Simpson had reached MMI, that her visual disturbance and
word-finding difficulties were proximately caused by her work
injury, and that her “restrictions [were] permanent.”
The court determined that Kafka did not dispute that
Simpson’s visual disturbance and word-finding difficulties
were related to the work injury; rather, his report did not
address difficulties associated with the work injury. Kafka
stated that Simpson could return to work with no restrictions,
and Biehl’s report did not address work restrictions. Although
Biehl opined that Simpson had a visual disturbance and word-
finding difficulties, he did not address whether they impacted
Simpson’s ability to return to work. Furthermore, the perma-
nent “restrictions” that Biehl referenced were not defined.
The parties submitted an amended joint pretrial memoran-
dum, wherein they stipulated to the following facts: Simpson
was employed by LPS on August 31, 2017; her hourly rate
of pay on August 31 was $15.12; Simpson provided timely
- 540 -
Nebraska Court of Appeals Advance Sheets
30 Nebraska Appellate Reports
SIMPSON v. LINCOLN PUBLIC SCHOOLS
Cite as 30 Neb. App. 537notice of the accident; and Simpson was terminated from her
position on April 13, 2018.
At trial, the following evidence was presented via testi-
mony and submitted exhibits regarding Simpson’s injury, treat-
ment, conflicting medical opinions of her recovery, wages, and
leave.
Following her work injury on August 31, 2017, Simpson
saw an optometrist on September 1 and 5. He diagnosed
Simpson with a posterior vitreous detachment in her left eye,
and he cleared Simpson to return to work with no restrictions.
Simpson sought treatment with Kafka on September 22,
2017, and Kafka prescribed physical therapy, speech therapy,
and neuro-optometry to help with concussion symptoms. Due
to the cumulative fatigue, Kafka directed Simpson to take
Wednesdays off of work to rest. This 4-day workweek contin-
ued through November 1, at which time Kafka cleared her to
return to a 5-day workweek. Simpson continued to treat with
Kafka, and on December 27, she reported still struggling with
vision, balance, and headaches. Kafka discontinued physi-
cal therapy because maximum benefit had been reached. On
February 21, 2018, Kafka noted Simpson was struggling with
her short-term memory, but cleared her to work without restric-
tions while continuing with the “speech/language therapy and
vision therapy.”
On May 1, 2018, Kafka noted that Simpson had been dis-
charged from speech/language therapy and was no ­longer
going to vision therapy. Simpson’s biggest problem was
related to vision, as she “doesn’t feel as though her eyes and
brain are connecting their signals, so she will see things that
aren’t there.” Kafka noted Simpson was able to return to work
with no restrictions and placed her at MMI. The optometrist to
whom Kafka referred Simpson completed a vision evaluation
on October 5, 2017, diagnosing Simpson with “convergence
insufficiency, oculomotor dysfunction of pursuit and saccadic
eye movements, intermittent strabismus/exotropia, visual
­discomfort/asthenopia with previously diagnosed posterior
- 541 -
Nebraska Court of Appeals Advance Sheets
30 Nebraska Appellate Reports
SIMPSON v. LINCOLN PUBLIC SCHOOLS
Cite as 30 Neb. App. 537vitreous detachment.” He referred her to Dr. Samantha K.
Bohl for vision therapy.
After providing vision therapy to Simpson, Bohl stated in a
May 2018 letter that it was her opinion that Simpson’s vision
impairment rating was less than 10 percent. In July 2020, Bohl
authored another letter stating Simpson had a 20-­percent impair-
ment, based on the “AMA Guide to Permanent Impairment.”
Bohl clarified in August that her July letter was based upon her
impression that she was being asked to provide a rating pursu-
ant to the guide, but that it remained her opinion, based upon
her treatment and evaluation, along with the general practice
of assigning impairment, that Simpson sustained a permanent
impairment rating of less than 10 percent. She explained that
her general practice was not to use the guide because it did not
take significant factors into consideration.
During the time that Simpson was being treated by Kafka
and Bohl, she also saw her family practice physician, Biehl. He
has treated Simpson as a patient since January 2014, includ-
ing for her cognitive issues associated with attention deficit.
In connection with her attention deficit, Simpson had reported
to Biehl that she had a hard time concentrating and reading to
her students.
On April 17, 2018, Biehl first saw Simpson after her work-
place accident. Biehl referred Simpson to a neurologist to
follow up on any head injury or concussion symptoms. The
neurologist ordered an MRI, which yielded normal results.
Simpson next saw Biehl approximately 22 months later in
February 2020. Biehl noted that Simpson reported having
visual issues, including double vision, as well as some irritabil-
ity and poor memory.
Biehl opined, to a reasonable degree of medical certainty,
that Simpson has permanent physical restrictions as a result
of her August 31, 2017, work injury, specifically visual dis-
turbances, as well as word-finding or cognitive disabilities.
However, Biehl conceded that he would defer to “a doctor who
specializes in the area of [traumatic brain injuries who] had
- 542 -
Nebraska Court of Appeals Advance Sheets
30 Nebraska Appellate Reports
SIMPSON v. LINCOLN PUBLIC SCHOOLS
Cite as 30 Neb. App. 537addressed restrictions for . . . Simpson relative to the accident
at issue.”
The LPS claims adjuster testified at trial regarding the cal-
culation of average weekly wage, compensation practices, and
Simpson’s attendance and leave from work. The adjuster testi-
fied that LPS calculated Simpson’s average weekly wage for
the 26 weeks prior to the injury based upon Simpson’s actual
wages and determined her average weekly wage was $353.28.
The claims adjuster explained that the standard practice of
LPS was to not dock any pay or leave for the first 7 days
an employee misses time related to a workers’ compensation
injury or for appointments related to the injury. In reviewing
Simpson’s absence history from September 1, 2017, through
April 6, 2018, the adjuster testified that Simpson was not
docked any pay or leave for any absence that corresponded
to a medical appointment or doctor’s note taking Simpson off
work that day. The absence and leave evidence indicated that
if Simpson did not have a doctor’s note or an appointment, the
absence was designated as “took self off.”
The compensation court issued its order on March 9, 2021.
It found that Simpson had suffered a concussion and vitreous
hemorrhage as a result of striking her head at work on August
31, 2017. The concussion symptoms were resolved as of May
1, 2018, the date she reached MMI, and she returned to her
baseline cognitive level at that time. The court determined that
the nature and extent of Simpson’s vision issues were “conver-
gence insufficiency; oculomotor dysfunction of pursuits and
saccades; visual discomfort; glare sensitivity; disequilibrium;
and, dry eye,” resulting in a 9-percent vision loss in her left
eye. The compensation court determined that the 9-percent
impairment to her vision was a scheduled member loss and not
a body as a whole injury.
The court accepted that Simpson’s average weekly wage for
temporary disability benefits was $353.28, as calculated by the
LPS claims adjuster and based upon Simpson’s actual weekly
wage. It noted that as an educator, Simpson works 9 months
- 543 -
Nebraska Court of Appeals Advance Sheets
30 Nebraska Appellate Reports
SIMPSON v. LINCOLN PUBLIC SCHOOLS
Cite as 30 Neb. App. 537during the school year, but receives a monthly paycheck for
12 months. Finally, the compensation court determined that
Simpson was not entitled to any additional temporary disability
benefits because either Simpson received her regular wages in
lieu of compensation on the additional dates requested or they
were not days Simpson had taken off work due to doctor’s
orders or appointments. Simpson timely appealed.
ASSIGNMENTS OF ERROR
Simpson assigns, restated, that the compensation court erred
in finding (1) Simpson’s cognitive deficits had resolved and
she had returned to her baseline cognitive level, (2) Simpson
was not entitled to the appointment of an independent medical
examiner, (3) Simpson’s vision loss was a scheduled member
loss and/or it was limited to 9 percent, (4) Simpson’s average
weekly wage was $353.28, and (5) Simpson was not entitled to
temporary total disability (TTD) benefits.
STANDARD OF REVIEW
[1] Pursuant to Neb. Rev. Stat. § 48-185 (Reissue 2021), an
appellate court may modify, reverse, or set aside a compen-
sation court decision only when (1) the compensation court
acted without or in excess of its powers; (2) the judgment,
order, or award was procured by fraud; (3) there is not suffi-
cient 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.
Aboytes-Mosqueda v. LFA Inc., 306 Neb. 277, 944 N.W.2d
765 (2020).
[2,3] On appellate review, the factual findings made by
the trial judge of the compensation court have the effect of a
jury verdict and will not be disturbed unless clearly wrong.
Id. In testing the sufficiency of the evidence to support the
findings of fact in a workers’ compensation case, an appel-
late court considers the evidence in the light most favorable to
the successful party, every controverted fact must be resolved
in favor of the successful party, and the appellate court gives
- 544 -
Nebraska Court of Appeals Advance Sheets
30 Nebraska Appellate Reports
SIMPSON v. LINCOLN PUBLIC SCHOOLS
Cite as 30 Neb. App. 537the successful party the benefit of every inference reasonably
deducible from the evidence. Id.[4,5] As the trier of fact, the compensation court is the sole
judge of the credibility of witnesses and the weight to be given
their testimony. Id. Regarding questions of law, an appellate
court in workers’ compensation cases is obligated to make its
own decisions. Mueller v. Lincoln Public Schools, 282 Neb. 25,
803 N.W.2d 408 (2011).
ANALYSIS
Baseline Cognitive Level.
Simpson assigns that the compensation court erred in find-
ing that her cognitive deficits had resolved themselves by May
1, 2018, and in finding that she had returned to her baseline
cognitive level at that time. Simpson argues that the evidence
at trial demonstrated that she continues to suffer from the
effects of her head injury throughout her treatment and to the
present day. We find that the compensation court’s determina-
tion that Simpson had returned to her preaccident baseline
cognitive level was supported by the record and was not clearly
erroneous.
In determining that Simpson returned to her baseline cogni-
tive level and that any cognitive deficits related to the work
accident resolved by May 1, 2018, the compensation court
weighed the opinions of Kafka and Biehl. As the trier of fact,
the compensation court is the sole judge of the credibility of
witnesses and the weight to be given their testimony. Parks
v. Hy-Vee, 307 Neb. 927, 951 N.W.2d 504 (2020). The court
determined that a fair reading of Kafka’s records supported
its conclusion, and we agree. It was not persuaded by Biehl’s
opinion that Simpson continues to suffer from postconcussion
symptoms as a result of the work accident because Biehl did
not provide any significant treatment or care for Simpson’s
work injury, and Biehl testified that he would defer to the opin-
ions of specialists who treated Simpson relative to the accident
at issue.
- 545 -
Nebraska Court of Appeals Advance Sheets
30 Nebraska Appellate Reports
SIMPSON v. LINCOLN PUBLIC SCHOOLS
Cite as 30 Neb. App. 537The compensation court found Kafka’s opinion more per-
suasive, and the record supports that factual finding. Kafka
treated Simpson regularly for the workplace injury, starting
on September 22, 2017, when he prescribed physical therapy,
speech therapy, and neuro-optometry to help with her concus-
sion symptoms, and continuing through May 1, 2018, when she
reached MMI. On May 1, Kafka noted that Simpson had been
discharged from speech and language therapy and that her big-
gest problems were related to vision. Kafka also noted that the
results of a recent MRI of Simpson’s brain were normal and
that she had made significant improvement through speech and
language therapy.
Medical evidence submitted at trial showed that Simpson
suffered from cognitive difficulties prior to the work accident,
including Biehl’s noting that she had a hard time concentrating
or reading to her students, along with anxiety and adult atten-
tion deficit disorder. The compensation court found that any
cognitive deficits related to the work accident were resolved
by May 1, 2018, and that Simpson had returned to her baseline
cognitive level at that time. This factual finding is supported by
the record and is not clearly erroneous.
Additionally, Simpson argues that because she has a body
as a whole injury, she is entitled to have her loss of earning
power assessed. However, this argument is predicated on a
determination that Simpson continues to suffer from cognitive
issues related to the work injury, a contention that the com-
pensation court rejected. Because we affirm the compensation
court’s finding that Simpson’s cognitive symptoms returned to
baseline, she suffered no permanent body as a whole injury for
which a loss of earning power could be awarded. We therefore
reject this argument.
Appointment of Independent Medical Examiner.
Simpson assigns that the compensation court erred in find-
ing that she was not entitled to the appointment of an indepen-
dent medical examiner. Simpson argues that Kafka’s opinion
- 546 -
Nebraska Court of Appeals Advance Sheets
30 Nebraska Appellate Reports
SIMPSON v. LINCOLN PUBLIC SCHOOLS
Cite as 30 Neb. App. 537and Biehl’s opinion contradicted one another. Kafka opined
that Simpson could return to work without restriction. Biehl
opined that the workplace injury caused visual disturbance and
word-finding difficulties and that the restrictions were perma-
nent. Therefore, Simpson asserts that an independent medical
examiner should have been appointed to render medical find-
ings. We disagree.
At the hearing on the motion to appoint an independent med-
ical examiner, Simpson offered only the reports of Kafka and
Biehl and the discharge report of a speech language patholo-
gist. The court determined that the speech language pathologist
was not a physician as that term is defined in the Nebraska
Workers’ Compensation Act, and therefore, it did not consider
that record. As to the reports of the two physicians, the court
determined that they did not indicate a medical dispute between
medical experts existed.
Under Neb. Rev. Stat. § 48-134.01 (Reissue 2021), and the
accompanying rules of the compensation court, the compensa-
tion court shall assign an independent medical examiner from
the list of qualified examiners to render medical findings in
any dispute relating to the medical condition of a claimant. The
compensation court found that Kafka’s and Biehl’s opinions
supplemented one another and were not in dispute.
As to the offered evidence, none of the reports were nar-
rative; rather, the physicians were requested to answer either
yes or no, or provide a short answer to questions submitted
to them. Kafka’s May 1, 2018, report contained two opinions:
Simpson could return to work with no restrictions and she had
reached MMI. His November 13 report confirmed that Simpson
reached MMI on May 1, that she had been released from vision
therapy, and that Kafka did not foresee any future medical care.
Biehl’s June 17, 2020, report stated that he believed Simpson
was at MMI; that she continued to have visual disturbances
and word-finding difficulties, which were proximately related
to her work injury; and that her restrictions were permanent. It
did not identify what those restrictions were.
- 547 -
Nebraska Court of Appeals Advance Sheets
30 Nebraska Appellate Reports
SIMPSON v. LINCOLN PUBLIC SCHOOLS
Cite as 30 Neb. App. 537Both physicians agreed that Simpson had reached MMI.
Biehl attributed Simpson’s visual disturbance and word-finding
difficulties to the work injury. Kafka’s report did not discuss
any difficulties associated with the work injury; therefore,
his report does not dispute Biehl’s opinion. Biehl opined that
Simpson had permanent restrictions, but his report did not
identify what those restrictions were, and the court declined
to adopt Simpson’s argument that her visual disturbance and
word-finding difficulties were restrictions, as opposed to symp-
toms. Therefore, Kafka’s opinion that Simpson could return to
work with no restrictions was not disputed by Biehl’s report,
because there was no discussion of how Simpson’s visual dis-
turbance and word-finding difficulties would impact her ability
to return to work.
We agree with the compensation court’s factual finding
that the reports did not reveal a medical dispute between two
physicians. On appellate review, the factual findings made by
the trial judge of the compensation court have the effect of a
jury verdict and will not be disturbed unless clearly wrong.
Aboytes-Mosqueda v. LFA Inc., 306 Neb. 277, 944 N.W.2d 765(2020). Because there was no medical dispute between medical
experts, the court did not err in denying Simpson’s request for
appointment of an independent medical examiner.
Vision Loss Was Scheduled Member Loss.
Simpson assigns that the compensation court erred in find-
ing that her vision loss was a scheduled member loss and/or
that her vision impairment was limited to 9 percent. We dis-
agree with both assertions.
Simpson argues that her vision loss was a result of a trau-
matic brain injury and that the compensation court should have
found she suffered a body as a whole injury as opposed to the
scheduled member injury to her eye. It appears that Simpson
also argues, in the alternative, that if the determination of a
scheduled member injury is affirmed, her impairment should
have been 20 percent instead of 9 percent. Each argument will
be addressed in turn.
- 548 -
Nebraska Court of Appeals Advance Sheets
30 Nebraska Appellate Reports
SIMPSON v. LINCOLN PUBLIC SCHOOLS
Cite as 30 Neb. App. 537[6] The compensation court was not clearly erroneous in
determining that Simpson’s injury was a scheduled member
injury as opposed to a body as a whole injury. The test for
determining whether a disability is to a scheduled member or
to the body as a whole is the location of the residual impair-
ment, not the situs of the injury. Ideen v. American Signature
Graphics, 257 Neb. 82, 595 N.W.2d 233 (1999). In Ideen, the
claimant sought review of the compensation court’s determina-
tion that the claimant did not suffer a whole body injury as
to the injury to her right arm. The claimant’s treating physi-
cian assigned her a 12-percent permanent partial impairment
to the upper right arm. Id. Another physician agreed with the
12-percent impairment to the upper right arm, in addition to a
5-percent impairment to her spine, and opined that the claim-
ant had a 12-percent impairment to her person as a whole. Id.The compensation court found the first physician’s opinion
to be more persuasive and found that the disability was to
the arm only. Id. The Nebraska Supreme Court affirmed the
compensation court’s determination because it was not clearly
erroneous. Id.In this case, the compensation court was presented with
conflicting evidence as to whether Simpson suffered a dis-
ability to the body as a whole or a disability to a scheduled
member. As discussed in previous sections, the compensation
court weighed the conflicting testimony and found that Kafka’s
determination that the concussion symptoms had resolved as
of May 1, 2018, and Simpson had returned to her preaccident
baseline cognitive level more persuasive than Biehl’s testi-
mony. As Simpson’s vision issues were the remaining issues,
the compensation court was correct in finding that Simpson’s
injury was a scheduled member loss. The compensation court
was not clearly erroneous in determining that the evidence
limiting Simpson’s disability to a scheduled member was more
persuasive, and accordingly, its finding of fact will not be dis-
turbed on appeal.
Additionally, in addressing the secondary argument that
the scheduled member loss should have been 20 percent, we
- 549 -
Nebraska Court of Appeals Advance Sheets
30 Nebraska Appellate Reports
SIMPSON v. LINCOLN PUBLIC SCHOOLS
Cite as 30 Neb. App. 537again defer to the factual finding of the compensation court.
Simpson argues that the compensation court should have
decided her vision impairment is 20 percent. The record sup-
ports the 9-percent impairment decision because Bohl, who
had been conducting vision therapy with Simpson, stated
it was her opinion that Simpson’s impairment rating was
less than 10 percent in May 2018. Simpson’s argument is
based on a July 2020 letter wherein Bohl stated Simpson
had a ­20-percent impairment based on the “AMA Guide to
Permanent Impairment.” But in August, Bohl clarified the
reason for the increased impairment rating and reiterated that
based upon her treatment and evaluation, along with the gen-
eral practice of assigning impairment, it was her opinion that
Simpson sustained a permanent impairment rating of less than
10 percent. The compensation court’s reliance upon Bohl’s rat-
ing of less than 10 percent was not clearly erroneous.
Calculation of Average Weekly Wage.
Simpson assigns that the compensation court erred in find-
ing that her average weekly wage was $353.28 for purposes of
calculating temporary disability benefits. We disagree.
[7,8] Simpson argues the average weekly wage should have
been calculated by multiplying the stipulated hourly rate of
$15.12 by 40 hours a week for a total of $604.80. Simpson
cites Mueller v. Lincoln Public Schools, 282 Neb. 25, 803
N.W.2d 408 (2011), in support of her argument. The goal of
any average income test is to produce an honest approxima-
tion of the claimant’s probable future earning capacity. Id. The
determination of how the average weekly wage of a workers’
compensation claimant should be calculated is a question of
law. Id.In workers’ compensation cases, the amount of benefits
awarded to a claimant is dependent upon the court’s calcula-
tion of the claimant’s average weekly wage. Id. For employ-
ees who are paid by the hour, the average weekly wage is
determined pursuant to Neb. Rev. Stat. §§ 48-121 and 48-126
(Reissue 2021). See Mueller v. Lincoln Public Schools, supra.
- 550 -
Nebraska Court of Appeals Advance Sheets
30 Nebraska Appellate Reports
SIMPSON v. LINCOLN PUBLIC SCHOOLS
Cite as 30 Neb. App. 537Section 48-126 provides in relevant part that “wages” mean
“the money rate at which the service rendered is recompensed
under the contract of hiring in force at the time of the acci-
dent.” In continuous employment, if immediately before the
accident the claimant’s rate of wages was fixed by the hour,
the claimant’s weekly wage is “his or her average weekly
income for the period of time ordinarily constituting his or her
week’s work, and using as the basis of calculation his or her
earnings during as much of the preceding six months as he or
she worked for the same employer.” § 48-126. As a general
rule, the weekly wage of a worker compensated on an hourly
basis is a simple function of the hourly rate multiplied by the
number of hours worked in a given week. Mueller v. Lincoln
Public Schools, supra. The formula is not inflexible, and pre-
cludes an automatic mathematical calculation based on the past
6 months’ work. See id.
In Mueller, a school employee worked 9 months a year,
approximately 371⁄2 hours per week, but was paid monthly
over a 12-month period. To determine the employee’s average
weekly wage for TTD purposes, the compensation court mul-
tiplied the stipulated hourly wage times 371⁄2 hours per week.
Id. The Supreme Court found that the compensation court erred
in calculating the employee’s average weekly wage without
accounting for the fact that her hourly wages did not, if simply
multiplied by 40 hours a week, approximate her actual weekly
wages. Id. The Supreme Court held that “[u]nder these circum-
stances, the trial court erred in not calculating [the employee’s]
average weekly wage, for temporary disability purposes, based
upon her actual weekly income.” Id. at 31, 803 N.W.2d at 412
(emphasis in original).
In the instant case, the unrebutted evidence adduced at trial
was that Simpson’s average weekly income, based upon her
actual weekly income over the prior 26 weeks, was $353.28.
On appeal, Simpson proposes that the average weekly wage
calculation of the stipulated hourly rate of $15.12 times 40
hours a week for a total of $604.80 is the best indication of
- 551 -
Nebraska Court of Appeals Advance Sheets
30 Nebraska Appellate Reports
SIMPSON v. LINCOLN PUBLIC SCHOOLS
Cite as 30 Neb. App. 537her earning capacity. But that is the formula that the Supreme
Court expressly rejected for a similarly situated employee in
Mueller, because it had the effect of distorting the employee’s
average weekly wage well beyond what she was actually earn-
ing at the time of her injury. We reject Simpson’s proposal for
the same reason.
Based on Mueller v. Lincoln Public Schools, 282 Neb. 25,
803 N.W.2d 408 (2011), we find no error in the compensation
court’s calculating Simpson’s average weekly wage, for tempo-
rary disability purposes, based upon her actual weekly income.
Doing so supports a determination that Simpson’s average
weekly wage for purposes of awarding temporary disability
was $353.28.
Not Entitled to TTD Benefits.
Simpson assigns that the compensation court erred in find-
ing that she was not entitled to TTD benefits. The parties asked
the compensation court to make a determination of Simpson’s
entitlement, if any, to TTD benefits. After reviewing the medi-
cal records and evidence, the compensation court found that
Simpson was not entitled to any TTD benefits as claimed in
exhibit 40, because LPS continued to pay Simpson her regular
wages when missing work due to doctor’s orders or appoint-
ments. Simpson argues that LPS should not receive credit for
“no docking” her pay when she was absent from work, brief
for appellant at 39, relying on Anderson v. Cowger, 158 Neb.
772, 65 N.W.2d 51 (1954) and Godsey v. Casey’s General
Stores, 15 Neb. App. 854, 738 N.W.2d 863 (2007). The com-
pensation court’s finding that Simpson was not entitled to
any temporary disability benefits is not clearly erroneous, and
therefore, we affirm.
[9,10] In Anderson v. Cowger, supra, the Supreme Court
confronted the issue of whether the employer should be given
credit against the award of indemnity benefits for the regular
wages it had continued to pay the employee. The court held
that if the payment of wages was intended to be in lieu of
- 552 -
Nebraska Court of Appeals Advance Sheets
30 Nebraska Appellate Reports
SIMPSON v. LINCOLN PUBLIC SCHOOLS
Cite as 30 Neb. App. 537compensation, credit for the wages is allowed. Id. The court
further held that if an employee is paid his or her regular
wage although he or she does no work at all, it is a reasonable
inference that the allowance is in lieu of compensation. Id.In Godsey v. Casey’s General Stores, supra, this court further
clarified that an employer is not entitled to credit for wages
paid, if those wages were paid as a result of the employee’s
using accumulated medical or vacation leave.
The compensation court’s determination that LPS should
receive credit for wages paid in lieu of compensation is not
clearly erroneous. As described in Anderson v. Cowger, supra,if an employee is paid his or her regular wage although he
or she does no work at all, it is a reasonable inference that
the allowance is in lieu of compensation. Simpson received
her regular wage when she was not at work due to the work-
place injury, as supported by the testimony of the LPS claims
adjuster and the medical records submitted by the parties.
Simpson was paid her regular wages and was not forced to use
accrued vacation or sick time to attend doctor or therapy visits.
LPS is entitled to credit for the payments made to Simpson as
her regular wages in lieu of workers’ compensation benefits.
The compensation court’s determination that Simpson is not
entitled to any additional TTD benefits is not clearly erroneous,
and we affirm.
CONCLUSION
For the foregoing reasons, we affirm the orders of the com-
pensation court.
Affirmed.