Nebraska Supreme Court Affirms Permanent Total Disability for Truck Driver Under Odd-Lot Doctrine

On April 16, 2009, Bryant Gardner was driving a semitrailer for International Paper Destruction and Recycling when he failed to negotiate the circular entrance ramp onto Interstate 680 in Omaha. The truck rolled. Gardner was briefly knocked unconscious and suffered injuries to his head, neck, and lower back.

Medical workup revealed disk protrusions at the C4-5 and C5-6 levels of his cervical spine, along with a closed head injury that produced temporary cognitive deficits. Treatment included epidural injections, which resulted in a cerebrospinal fluid leak. By July 2012 his condition had deteriorated to the point where surgeons performed a cervical fusion. Throughout this period Gardner also contended with pre-existing depression, anxiety, sleep apnea, and learning difficulties.

Richard J. Rensch and Sean P. Rensch of Rensch and Rensch Law filed a workers' compensation claim on Gardner's behalf. The Nebraska Workers' Compensation Court issued an initial award in September 2010 covering temporary total and temporary partial disability at $403.67 per week. After the employer sought to modify that award and the parties litigated the extent of any permanent impairment, the compensation court issued a further award on August 8, 2014, finding Gardner permanently and totally disabled at $427.73 per week.

The court applied the odd-lot doctrine, a rule that covers workers who are not entirely incapacitated but are so handicapped by a combination of physical injury and other limitations that no stable employment market will regularly hire them. The compensation court weighed Gardner's post-fusion physical restrictions alongside the continuing psychiatric and cognitive reports of two treating physicians, Drs. Golnick and Rich, to reach that conclusion.

International Paper appealed to the Nebraska Supreme Court, arguing that the law-of-the-case doctrine barred any consideration of Gardner's mental health history because an earlier ruling had found his pre-existing cognitive deficits were only temporarily aggravated by the accident. The Supreme Court rejected that reading. The justices held that the original finding addressed a transient aggravation, not a permanent conclusion about Gardner's underlying mental health conditions, and those conditions remained squarely relevant to a later determination of his long-term employability. On July 17, 2015, the Nebraska Supreme Court affirmed the compensation court's award in full, leaving the $427.73 weekly permanent total disability benefit intact.