By a 5-2 vote, the judges of the Nebraska Workers’ Compensation Court rejected a proposed change to NWCC Rule 10 that allows physician assistants, nurse practitioners and neuropsychologists to testify by written report in the Nebraska Workers’ Compensation Court.
The rule change was proposed in response to the recent Bower decision that held that P.A.s could not submit written reports in the court because they were not mentioned in the text of NWCC Rule 10. Rule 10 designates which experts may testify by written report in the court.
I’ve written here and here that I believe that including P.A.s within NWCC Rule 10 benefits uninsured and rural injured workers who may not have access to care besides a P.A. or nurse practitioner. P.A.s also work closely with specialists and often handle matters like light or alternate duty restrictions. Allowing P.As to testify by Rule 10 report would clear up any amhguity over P.A. assigned temporary duty restrictions. Furthermore allowing P.A. reports under Rule 10 may decrease litigation costs for workers and employers/insurers.
However a majority of judges of the Nebraska Workers Compensation disagreed. The majority seemed to agree that P.A. reports were admissible into evidence, but could not be replied upon as expert testimony. That interpreation seemed to vary from the opinion that Bower excluded P.A. reports from evidence.
Under Neb. Rev. Stat. 48-163, the Nebraska Workers Compensation Court has the power to prescribe its own rules of evidence and procedure.
Also at Thursday’s hearing the court adopted a fee schedule for injuries covered under the Nebraska Workers Compensation Act for 2019. The fee schedule determines how much a medical provider can be paid for services under the act. The fee schedule means that the reasonableness of medical charges is generally not litigated in workers’ compensation cases in Nebraska. This lessens litigation and encourages medical providers to accept workers’ compensation patients. Other states, notably New Jersey, do not fee schedule medical charges which leads to more complicated workers’ compensation claims.
The court also voted in favor of rule changes about filing, lump sum settlements and doctor choice.