If an employee has evidence that his or her injuries are caused by an industrial accident or occupational disease, is the employee's testimony as to incapacity all that is necessary to prove an entitlement to temporary benefits, loss of earning capacity and vocational rehabilitation? Contrary to conventional wisdom, the answer is probably yes. Historically, employers, workers' compensation administrators and insurers have assumed that unless an employee has expert medical evidence that the employees work injuries functionally limit or impair the employee, the latter may not recover temporary benefits, prove a loss of earning capacity or recover an entitlement to vocational rehabilitation. The Nebraska Supreme Court and Court of Appeals have recently made it clear that an expert opinion is necessary only to prove that the employee's injuries were caused by the work accident. Expert testimony is not necessary to prove the extent of the employee's disability. That rule has been applied not only to loss of earning capacity cases, but also to claims for temporary disability and vocational rehabilitation. As long as the employee has evidence that his or her injuries were caused by work, the Workers' Compensation Court may rely solely upon an employee's testimony of his or her incapacity and award temporary benefits, permanent benefits for loss of earning capacity and vocational rehabilitation. LOSS OF EARNING CAPACITY For many years the Supreme Court has allowed the Workers' Compensation Court to consider an employee's testimony when determining the extent of the employee's disability. Prior 1996 there had always been medical evidence of functional limitations which, together with the employee=s testimony, formed the basis of loss of earning capacity awards. For the first time in Cords v. City of Lincoln, the Supreme Court affirmed an award of loss of earning capacity in the absence of any medical evidence of limitations. The Workers' Compensation Court awarded the employee a 10 percent loss of earning capacity. The Supreme Court affirmed this award, and in rejecting the employer's argument that the employee's testimony, without expert opinions of functional limitations, was insufficient as a matter of law to establish a loss of earing capacity, cited two earlier cases where medical limitations were in evidence and explained: "Contrary to such an assertion, once the cause of a disability has been established, this court has allowed the compensation court to consider the testimony of the claimant in determining the extent of the claimant's disability." TEMPORARY BENEFITS In the recent case of Haro v. Beef America the Court of Appeals extended the Cords rule to a claim for temporary benefits. In Haro the employee sought temporary total disability benefits for a period of approximately one year while off work convalescing from his work injuries. He testified that he was unable to perform the work that his employer had offered to him. He did not offer evidence from any physician that his injuries limited him. Nevertheless, the Workers' Compensation Court awarded temporary total benefits to the employee for the period of time he was off work. The award was based solely upon the employee's testimony that he was unable to perform any work for the employer. In affirming the award of the Workers' Compensation Court, the Court of Appeals explained that it "has been firmly established in Nebraska that while expert witness testimony may be necessary to establish the cause of a claimed injury, the compensation court does not need to depend on expert testimony to determine the degree of disability but may rely on the testimony of the claimant." VOCATIONAL REHABILITATION In Cords the Workers' Compensation Court also awarded the employee vocational rehabilitation based solely upon the employee's testimony that he was unable to perform suitable employment. The Supreme Court affirmed that aspect of the award as well. The only explanation offered by the Court was that "there was sufficient competent evidence from which the trial judge could conclude that Cords was eligible for vocational rehabilitation services." Perhaps the best example of rule that once causation is established, the employee's testimony is all that is needed to support an award of vocational rehabilitation, is the unpublished Court of Appeals decision in Campos v. Excel Corporation, 2000 WL 351186 (2000). In Campos the Court of Appeals affirmed an award of vocational rehabilitation by the Workers' Compensation Court. The only evidence of limitations offered at trial was a cryptic note authored by her physician 31 months before the employee voluntarily quit working. The note stated that the employee should "avoid repetitive grasping and be allowed to work at her own pace." One month after that note was authored the employee returned to regular duty and worked for 19 months until she gave birth. During this period of time the employee worked without complaint. Shortly after the employee returned to work following her maternity leave, she decided to quit work, stating that she had decided to stay home and care for her newborn child. Several months later the employee applied for another job with another employer and explained in her application for employment that she quit working for Excel Corporation because it did not have child care. She eventually quit that job and sued Excel Corporation claiming an entitlement to vocational rehabilitation. The Workers' Compensation Court awarded vocational rehabilitation benefits based upon the employee's testimony that she was physically unable, because of her work injuries, to perform her job for Excel Corporation or her job with her subsequent employer. In affirming that award, the Court of Appeals explained that "Nebraska law states that while expert witness testimony may be necessary to establish the cause of a claimed injury, the Workers' Compensation Court does not need to depend on expert testimony to determine the degree of disability but instead may rely on the testimony of the claimant. In other words, in workers' compensation proceedings, expert witnesses are not required to establish the degree of disability once causation has been developed." The Supreme Court refused to consider an application for further review. The message of these decisions is clear: Employers, administrators and insurers should not assume that employees are precluded from receipt of temporary benefits, an award of loss of earning capacity or vocational rehabilitation merely because the employee has no expert evidence of functional limitations. As long as there is evidence that the employee's injuries were caused by a work accident or occupational disease, the employee's testimony of limitations is sufficient to support an award such benefits. It is likewise important to understand that these decisions do not compel the Workers' Compensation Court to award such benefits where the only evidence of functional limitations is the testimony of the employee. The Workers' Compensation Court may choose to reject the employee's testimony depending on the circumstances of each case. Thus, employers should continue to question such claims where there is no medical evidence of functional limitations, but not simply rely on the lack of such evidence to defeat the claim. Employers must be prepared to offer evidence to rebut the employee's testimony of significant limitations. What that evidence should be, of course, must be determined on a case-by-case basis.