Tag Archives: doctor choice

Home is where the chart is when it comes to doctor choice in Nebraska workers’ compensation

Posted on January 31, 2022 by Jon Rehm

Nebraska workers’ compensation law allows injured workers to pick their own doctor to treat their work injury. But what if an injured worker picks their doctor to treat their work injury, but gets treated by another doctor at their doctor’s clinic?

I believe Nebraska law would let an injured worker see another provider who practices with an injured worker’s doctor. But, not surprisingly, some nitpicking types on the employer/insurance side of workers compensation don’t think an injured worker should be able to treat with the partner of an injured worker’s family doctor.

Why you should be able to treat for a work injury with another doctor at the clinic where your doctor practices

Under Nebraska Workers Compensation Court Rule 50(A)(2) an injured worker can chose a family physician to treat for a work injury. Per Nebraska Workers Compensation Court Rule 49(E) a family physician is one who maintains records and has a documented history of treating the injured workers or a family member.

So when it comes to workers’ compensation doctor choice in Nebraska, home is where your medical chart is found. For example, if your provider is Dr. Smith at the Main Street Clinic, Dr. Smith’s partner, Dr. Jones, should be able to treat you for a work injury if Dr. Smith is unavailable. The key fact is that your medical records are that clinic, which would aid any provider in treating you for a work injury.

The importance of doctor choice in workers’ compensation

Most people would probably say its common sense that you should be able to treat with a doctor at the same clinic as your regular doctor if your regular doctor isn’t available. But there is a whole cottage industry of management-friendly medical providers that seek to talk workers out of exercising their rights to pick their own doctor to treat a work injury in Nebraska. I wrote a post a few years back, picking apart some talking points to that effect sent out by an occupational medicine clinic in Omaha.

But management-side talking points about why injured workers shouldn’t pick their own doctors to treat work injuries aren’t solely based on faulty logic and assumptions. Intimidation substitutes for persuasion when it comes to employers and insurers pushing injured employees to employee-friendly doctors and medical providers.

What if your doctor is really a P.A. or nurse practitioner?

Lots of people get their primary medical care from physician assistants or nurse practitioners. If those providers practice under the supervision of a medical doctor, then I think an injured worker should be able to pick those providers. After all, the employee’s medical records are at the office of that provider.

But a P.A. or Nurse practitioner might not be able to testify by report in a Nebraska workers’ compensation case without a supervising doctor signing off on the report. But in serious injuries, primary care providers refer out to specialists who are almost always able to testify by report. And secondly, there is a distinction between who can testify by a report a workers’ compensation case and who can treat a workers’ compensation claimant in Nebraska.

Whether marijuana is legal or not, post-injury drug tests are here to stay

Posted on May 3, 2021 by Jon Rehm

Thomas Robinson wrote a good post where he predicted the legalization of recreational marijuana could lead to less post-injury drug testing.

I live in Nebraska. For the present, legalized recreational marijuana is as a realistic prospect as Pete Ricketts with hair. But even if Nebraska legalized marijuana, I doubt it would decrease post-injury drug testing in this state. Here is why I believe so:

Drug testing, occupational medicine and doctor choice

In short, getting drug tested at an occupational medicine clinic is a way to prod employees to let employers control their medical care. After an injury, many major employers in Omaha or Lincoln send their injured workers to occupational medicine clinics for a drug test. Of course, once the employee is at a clinic for a drug test, it seems convenient to get treatment at that clinic.

I’ve stated before that employers like to use drug testing to reinforce their power in the employee-employer relationship. Drug testing is just one of the many ways that employers and insurers use their power to minimize what they need to pay out in workers’ compensation claims.

Drug testing and drugs besides marijuana

So even if marijuana is legal and it’s difficult to use testing to prove impairment, employers can still test for alcohol and other drugs whether legal or illegal. Sometimes doctors will order drug testing to ensure sobriety from certain substances before a surgery or other procedure. As invasive as such an order may be, if it’s in the context of a workers’ compensation claim, a judge will likely be inclined to let that testing proceed.

What about the OSHA drug testing rule?

OSHA implemented a rule 2016 and clarified in 2018 that could limit post-injury drug testing. But the OSHA rule has exceptions if the drug testing is used as a way to get a discount for workers’ compensation insurance or as investigation into an accident. I think the rule is fairly weak. But even if an employer is sanctioned by OSHA, fines are relatively small for major employers and employees lack a way to sue employers directly for a violation of OSHA rules.

In theory, an employee fired for failing a post-injury drug test could have a retaliation case. After all, but for the employee claiming workers’ compensation they wouldn’t have been drug tested which lead to them being fired. In practice, some courts are finding that merely being injured isn’t enough to invoke the protections of anti-retaliation laws. Some courts could also find that failing a drug test to be a legitimate, non-discriminatory reason to be fired.

Changing the power dynamics between employee and employer

The bottom line is that legalized marijuana will do little if anything to change the imbalance of power between employee and employer. Without laws that provide more protections to employees, employers will continue to test employees for drugs and employees will continue to face consequences for violating drug and alcohol policies – even those that have nothing to do with their employment.

Appellate courts uphold red-tape cutting function of Nebraska Workers Compensation Court

Posted on April 19, 2021 by Jon Rehm

Workers’ compensation doesn’t just mandate that employers provide medical care, disability benefits and retraining benefits for injured workers. Workers’ compensation laws also mandate how employers provide these benefits.

A few recent decisions by Nebraska courts re-affirm the power the Judges of the workers’ compensation court have in dictating the details of workers compensation benefits – at least when it comes to medical care and vocational rehabilitation benefits.

Medical Care – Rogers v. Jack’s Supper Club

In Rogers v. Jack’s Supper Club, the Nebraska Supreme Court affirmed a trial court’s order that an employee injured in Nebraska who first treated in Nebraska who moved to Florida could treat with a doctor in Florida.

Jack’s Supper Club was originally decided by the Nebraska Supreme Court in late 2019. In that version of the case, the court held that it appeared that the employee had not properly changed doctors for the purposes of Nebraska law, but asked the trial court to clarify its order. I wrote last year that the original Jack’s decision was too harsh in my view because Judges can order doctor changes at their discretion under Neb. Rev. Stat. 48-120(6).

My reading of the second case is that the trial court expressly exercised its ability to change doctors and the Nebraska Supreme Court said it was fine.

Vocational Rehabilitation – Font v. JBS

In Font v. JBS, the Nebraska Court of Appeals affirmed a trial court decision that an employer must pay for a vocational rehabilitation program for a shoulder injury involving permanent impairment but not permanent restrictions. In that case, both the court-appointed vocational rehabilitation specialist and the court’s workers compensation section opposed developing a plan involving an injury without formal restrictions.

The court overruled these requests stating that physical restrictions were just one of many factors in determining eligibility for vocational services and that the purpose of VR is prompt rehabilitation. Again the Nebraska Court of Appeals, agreed with the trial court. Specifically, the court agreed with the trial court’s reading of 48-162.01(7) in awarding vocational rehabilitation benefits.

Cutting through red tape

In both Font and Rogers, the practical effect of the decisions was to help workers cut bureaucratic red tape imposed by employers, service providers and a government agency. While some regulation can be beneficial in a system like workers compensation, a lot of bureaucracy just makes it more difficult and expensive for workers to recover from work injuries.

But the Nebraska Workers Compensation Act gives Judges broad powers to cut through red tape – and at least in Jack’s Supper Club and Font v. JBS appellate courts seem to agree.

How COVID-19 complicates workers’ compensation claims

Posted on April 6, 2020 by Jon Rehm

COVID-19 (coronavirus) is disrupting life for everyone. If you were hurt at work before the pandemic hit, your life has been disrupted doubly. Here are some ways how COVID-19 is complicating workers’ compensation cases for injured workers.

Delays in medical treatment

I’ve heard several reports that physical therapists and orthopedic doctors are limiting appointments and delaying procedures because of the virus. So even if an insurer or claims administrator has accepted your claim and approved treatment, you may have to wait for treatment.

Some of this delay may not be bad for workers if temporary disability benefits are being paid along with medical benefits. In 15 years of practice, I’ve seen employers and insurance companies force employees to return to work sooner and sooner. The delays in medical treatment created by COVID-19 may give some employees more time to heal from their injuries.

FMLA

But on the flip side, delays in medical care will likely force some employees to lose job protected under the Family Medical Leave Act. (FMLA) While FMLA protections were expanded under the CARES Act, those expanded protections don’t give any additional job protected leave to employees who were hurt on the job if it wasn’t related to COVID-19.

Undermining doctor choice

In Nebraska, employees have the right to pick their own doctor to treat their work injury. These doctors are often primary care doctors. Of course during a pandemic, it is harder for an injured worker to see a primary care doctor and have a primary care doctor fill out necessary paperwork for a workers’ compensation case.

Unscrupulous employers may use the unavailability of a family doctor to steer an injured worker to an employer-friendly occupational medicine clinic. This tactic pre-dates the coronavirus, but expect the pandemic to provide a new talking point for human resources and workers’ compensation bureaucrats to manipulate medical care in workers’ compensation cases.

The gears of the workers’ compensation bureaucratic complex have not stopped grinding during the pandemic. Genex, who contracts with insurance companies to micromanage medical care for injured workers, wrote a blog post last week heroically portraying one of their nurse case managers overcoming the resistance of a treating doctor and COVID-19 to return an employee back to work. (Assuming they had a job to return to in the first place.)

But if insurance companies and their minions can play the “corona card”, so can injured workers. Injured workers have the right to exclude nurse case managers from examination rooms. I would suggest injured workers’ ask nurse case managers to observe “social distancing” and stay out of cramped examination rooms.

Loss of health insurance in denied claims

Thanks to firms like Genex, many employers prematurely quit paying workers’ compensation benefits. This often forces employees to pay for medical treatment related to work injuries with their health insurance. But this plan could go awry if employees lose health insurance benefits due to a layoff.

Under the law, employers are supposed to continue health coverage under COBRA. Injured workers may also be able to sign up for health insurance under the Affordable Care Act. But COBRA coverage is too expensive for most employees and even ACA coverage can be too costly for many. Employees should see if they are eligible for unemployment under the CARES Act. Employees could help pay for health insurance with the additional $600 per week unemployment benefit on top of regular weekly benefits and extended weekly benefits available under the CARES Act. But even with increased unemployment benefits, injured workers may have to make difficult financial decision about pursuing medical care.

Previous posts about coronavirus/COVID-19

“Navigating a workers’ compensation claim amid mass layoffs and economic uncertainty” – March 30, 2020

“What workers should know about coronavirus and workers’ compensation” – March 23, 2020

Why you need an M.D. to prove your work. comp, case, but your employer can slide with a P.A?

Posted on January 20, 2020 by Jon Rehm

Can a P.A. or nurse practitioner send you back to work?

Nebraska has strict rules about what kind of expert reports can be used in workers’ compensation cases. Often times these strict rules can make it harder for injured workers to collect benefits.

But workers’ compensation insurers and claims administrators play fast and loose with those rules when it suits them. I saw that double-standard in action recently.

In this scenario a medical doctor had taken an individual off work. But a day later, the workers’ compensation adjuster calls the clinic stating the employer has work light work available. Based on the hearsay assurance from an adjuster, a physician’s assistant (P.A.) signs a note returning the injured worker to work

Now if an injured worker went to court and their only medical evidence came from a P.A., that case would likely get dismissed. P.A’s aren’t so-called Rule 10 experts so, their opinions don’t have any legal weight unless they are signed by a doctor.

But when a workers’ compensation insurer wants to avoid paying temporary benefits for a lost time injury, a P.A’s report without a doctor’s signature is just fine.

So, yes a P.A. or nurse practitioner can send you back to work. An injured worker who doesn’t go back to work after getting a return-to-work note signed only be such a provider risk getting fired. Because of the at-will employment doctrine, the judges who often decide wrongful termination cases on summary judgment aren’t likely going to split legal hairs in favor an injured worker who disregard a return-to-work note signed by a P.A.

But workers can take some steps to protect themselves from unfair treatment from a medical clinic and or workers’ compensation insurer.

Pick your doctor

Occupational medicine clinics or so-called “workers comp. doctors” tend to let insurance companies and nurse case managers more or less draft their medical records. Employers like to route their employees to these clinics. Employees have a right to see their own doctor, but employers often try to cajole and threaten workers to seek treatment at occupational medicine clinics.

Have your own doctor

Doctors are a lot less likely to let a workers’ compensation insurer call the shots in the treatment for an injured worker if they have a relationship with the patient. In short, if you have insurance get a family doctor. It’s very possible your health insurance plan covers a free annual physical. But many workers’ don’t have a regular doctor and insurers take advantage of this fact in a workers’ compensation case.

Talk your union or to an attorney

Workers can also talk to their union if they think their insurer or medical provider is being unfair about their work injury. Though not everyone is represented by a union, you can also contact a workers’ compensation attorney with those concerns.

Often an attorney can’t force an insurer to pay workers’ compensation benefits instantly. Insurers can often delay payment of workers’ compensation benefits without legal penalty. But if an employer is relying on the opinion of a P.A. or nurse practitioner to deny workers’ compensation benefits, a decent attorney can force an employer to pay penalties and attorney fees to the employee if they go to court.

Workers compensation basics: Nebraska workers can pick their own doctor to treat a work injury

Posted on January 21, 2019 by Rod Rehm

Injured Nebraska workers have an absolute right to choose their surgeon if surgery is needed. Nebraska workers compensation law provides injured workers to choose their own treating doctors unless Nebraska employers get a written waiver of that right. Many employers try to control doctor choice without following the rules and getting a written waiver. The requires use of an approved Form 50 with this language.

Under the Nebraska workers’ compensation law, you may have the right to choose a doctor to treat you for your work-related injury. You may choose a doctor who has treated you or an immediate family before this injury happened. Immediate family members are your spouse, children, parents, stepchildren and stepparents. The doctor you choose must have records to show that past treatment was provided. Your employer may ask the person who was treated to give permission so that doctor can verify past treatment.

If you want to choose your doctor, you must tell you employer the name of the doctor you choose. Do this as soon as possible after your employer gives you this notice and before getting any treatment unless it is emergency medical treatment. Once you tell your employer the name of the doctor, you may not change unless your employer agrees or the Nebraska Workers’ Compensation Court orders a change.

If you do not choose your doctor, your employer has the right to choose the doctor to treat you. The employer may also choose the doctor to treat you if you or your family member does not give permission so your employer can verify past treatment by the doctor you chose.

Even if a worker under Nebraska law waives choice of treating doctor they can still choose their surgeon, if one is needed. This right can bot be waived. It is absolute. An insurance company or employer is telling you that you need to see “their doctor” or that you can’t see your doctor to treat for a work injury, you should contact a lawyer.

Talking points for injured workers who want to see their own doctor

Posted on December 10, 2018 by Jon Rehm

Talking points for employers looking to undermine rights of injured workers to pick their own doctor

I was sitting in a conference call when I screen captured the email that is the photo for this post.

The email came from an occupational medical clinic in Omaha. It used the occassion of an updated doctor choice form from the Nebraska Workers Compensation court to distribute talking points for management when injured workers balk, rightly, at being sent to an occupational medical clinic.

Injured workers have the right to pick their own doctor in Nebraska. But that doesn’t mean that the insurance industry and self-insured employers aren’t going to try to control medical care to their advantage. Insurance companies spend money on “nurse case managers” and self-insureds usually have in-house nurse case managers, who in my view, try to persuade doctors to write medical records and reports that are favorable to the employer. The use of occupational medicine or “occ, med,” clinics is another tactic used by emplyoers to get favorable outcomes for themselves in workers’ compensation claims.

These talking points overcoming employee objections to going to an occ, med. clinic are an example of how employers/insurers try to work around rules that allow injured workers to see theiir own doctors in Nebraska.

I am going to break down these talking points one by one.

1.“We want the best care for you.” If an employer wants the best care for their employees, it would stand to reason they would let the employee go to a doctor who has treated the employee previously and knows their medical history. Treatment would be more effective and efficient without having to re-invent the wheel with a new doctor.

A lot of injured workers end up at occupational health clinics because they don’t have a family doctor because they don’t have health insurance. If a company doesn’t offer affordable health insurance, I would question whether the company really wants what is best for their employees.

2. See you right away – If the injury is acute, an employee will be sent to the emergency room rather than an occupational medical clinic that is more or less an urgent care clinic. While there can be delays in getting to see a family doctor, many family doctors or general practitioners will hold back appointments for urgent cases like work injuries. Injured workers need to be assertive with medical office staff in insisting that they be seen that day.

Of course, this point is moot if an employee doesn’t have their own doctor. See the previous paragraph. That’s why I support the initiative to expand Medicaid in Nebraska.

3.You don’t have to pay if you go to an occ. med. clinic – Under the Nebraska Workers’ Compensation Act, an employee doesn’t have to pay out of pocket for medical care – period – it doesn’t matter who they see. There is an element of truth that some doctors don’t accept workers’ compensation insurance. But if the case requires a referral to surgeon, that surgeon will almost certainly accept workers’ compensation insurance.

By the way, if an employee does get stuck at an occ, med. clinic and they get a referral for a surgery, they can pick their own surgeon even if the employee agreed to let the employer pick the doctor at first.

4. You have to go to this clinic to get drug tested clinic anyway – This isn’t so much a talking point as it is an assertion of power by an employer. It’s a thinly veiled threat that if the employee doesn’t go to the cliinic the employer wants, then they are going to be in trouble. The use of occupational health clinics to perform mandatory post-injury drug testing is a way from employers to cleverly work around Nebraska law on doctor choice under the cover of state and federal law about drug testing. Employee drug testing is as much about employers asserting control over employees as it as about employee safety.

OSHA regulations have recently been revised to allow employers more clarity — or latitude — to drug test emplyoees after a work injury. I will post on this in the near future, but take a look at this post for now,

In short, some employers are going to do their worst to cajole and coerce injured workers into undermining their workers’ compensation case by not letting employees pick their own doctors. Employees in such a situation ought to call a lawyer to get advice and help with their workers’ compensation case.

Possible Medicaid expansion could impact workers’ compensation, labor markets

Posted on July 26, 2018 by Jon Rehm

State Sen. Adam Morfeld of Lincoln has helped lead the charge for Medicaid expansion in Nebraska.

Nebraska voters will likely vote on Medicaid expansion in November after Insure the Good Life turned in 135,000 signatures earlier this month. Insure the Good Life estimates 98,000 Nebraskans who aren’t eligible for Medicaid but can’t afford coverage on the ACA exchanges will would get insured if the measure passes in Novmeber.

If Medicaid expands in Nebraska, it could impact the employee-employer relationship and workers compensation in the state.

Workers Compensation

Expanded health insurance means that more people will have access to medical care and have a relationship with a general practitioner. Oftentimes injures employees don’t have family doctors, so they let their employers pick their doctor by default. Letting an employer pick a doctor in a workers’ compensation claim can be harmful to an injured employee’s workers compensation case.

Access to primary care can also help an injured worker manage chronic conditions such high blood pressure and diabetes that can hinder recovery from a work injury.

An employee who has their workers compensation claim denied and isn’t working is usually unable to afford COBRA coverage — assuming their employer offers health insurance in the foirst place. An injured worker in that situation who is covered by Medicaid can continue to get the medical care they need to recover and develop their workers compensation case.

Employee-Employer relations

Employees often put up with abusive employers solely for the sake of health insurance. The option of enrolling in Medicaid would give more employees to take their job and shove it. This concern is part of the allure of portable benefits for employee that I have written about before. Less reliance on employers for health insurance could improve labor mobility and push up wages.

My opinions about the impact of Medicaid expansion in Nebraska come with some caveats. I have long believed the expansion of health insurance leads to more doctor choice for injured workers. But some studies of the ACA show it has lead to consolidation in the medical industry. This consolidation could gut any formal right employees have to chose their own doctors under workers compensation laws because there is less overall choice of doctors. This issue may have to be addressed by more vigorous anti-trust law enforcement

Also, just because a state expands Medicaid by referendum doesn’t mean the elected branches of government will implement the expansion. That is what is happening in Maine. The whole structure of the Affordable Care Act could be altered through another court challenge to the ACA. Finally the Nebraska Medicaid petition has been challenged by opponents of the expansion

But even with those caveats, I believe Medicaid expansion would be a good thing for injured workers and employees in Nebraska.

Workers' Compensation Watch

Published by Rehm, Bennett, Moore & Rehm

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Tag Archives: doctor choice

Home is where the chart is when it comes to doctor choice in Nebraska workers’ compensation

Whether marijuana is legal or not, post-injury drug tests are here to stay

Appellate courts uphold red-tape cutting function of Nebraska Workers Compensation Court

How COVID-19 complicates workers’ compensation claims

Why you need an M.D. to prove your work. comp, case, but your employer can slide with a P.A?

Workers compensation basics: Nebraska workers can pick their own doctor to treat a work injury

Talking points for injured workers who want to see their own doctor

Possible Medicaid expansion could impact workers’ compensation, labor markets

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