Why does your workers’ compensation insurer want a second opinion and what can you do about it?

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Injured workers are often sent for second opinions by insurance companies or claims administrators. The main questions that arise when this happens besides the obvious, “WTF is the b.s?,” are and 1) Why are they sending me to this random doctor or physical therapist? and 2 ) Do I need to go to the examination?

Why you are being sent for a second opinion or FCE by your employer? Cost savings

Your employer is likely sending you to a provider of their choice to minimize their workers’ compensation costs.

Usually employer or insurers ask for second opinions, often called independent medical examinations, or IMEs for short, at critical junctures in a claim. These inflection points include a need for a surgery and or having a doctor place you at maximum medical improvement (MMI) Sometimes employers and insurers have some computer program tell them when your case should be done and schedule medical appointments with that purpose. Functional Capacity Evaluations or, FCEs, are used to determine permanent work restrictions.

The one thing in common all of these situations have is that they involve fairly serious injuries that involve surgery, a long recovery, the need for future medical care and permanent restrictions. All of the above outcomes could lead to a lot of costs to your employer and or their workers compensation insurer.

But costs to your employer or their workers’ compensation insurer are necessary benefits for you. So what do you do when you are faced with an IME or employer-scheduled FCE?

You (probably) need to go. But you should also call a lawyer.

Why you probably need to go this “second opinion” appointment

Under Neb. Rev. Stat. 48-134, employers have the right to have you examined at their expense. In workers compensation vernacular this is called an independent medical examination or IME for short. (These examinations aren’t technically IMEs, but everyone in workers’ compensation in Nebraska uses the term for these examinations. )

Not going to the examination is grounds to have benefits ended. Informally, blowing off an IME is a good way to get off on a bad foot with the Judge deciding your case. However you, or more likely, a lawyer may have some luck trying an examination quashed if it is unreasonable. I think this is difficult burden. I filed a motion to quash a medical examination I thought was excessive about five years. The Judge disagreed pretty strenuously.

Why you probably need to go to an FCE scheduled by your employer

Personally, I think you need would need to go to a, functional capacity evaluation (FCE) set-up by the company. An FCE is a test done by a physical therapist to measure work restrictions. While an FCE isn’t technically covered under Nebraska’s medical examination statutes, the Nebraska Workers Compensation Court has adopted the Rules of Civil Discovery. The Rules of Civil Discovery allow for functional capacity evaluations.

But, like IMEs, an employee, can object to an FCE if they think it’s unreasonable. But again, you would want a lawyer to have a chance to successfully quash an FCE. However, getting an FCE quashed is often a difficult task even for an experienced and knowledgeable workers’ compensation lawyer.

The offices of Rehm, Bennett, Moore & Rehm, which also sponsors the Trucker Lawyers website, are located in Lincoln and Omaha, Nebraska. Five attorneys represent plaintiffs in workers’ compensation, personal injury, employment and Social Security disability claims. The firm’s lawyers have combined experience of more than 95 years of practice representing injured workers and truck drivers in Nebraska, Iowa and other states with Nebraska and Iowa jurisdiction. The lawyers regularly represent hurt truck drivers and often sue Crete Carrier Corporation, K&B Trucking, Werner Enterprises, UPS, and FedEx. Lawyers in the firm hold licenses in Nebraska and Iowa and are active in groups such as the College of Workers’ Compensation Lawyers, Workers' Injury Law & Advocacy Group (WILG), American Association for Justice (AAJ), the Nebraska Association of Trial Attorneys (NATA), and the American Board of Trial Advocates (ABOTA). We have the knowledge, experience and toughness to win rightful compensation for people who have been injured or mistreated.

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