What right does an employer/insurer have to make an injured worker submit to a medical examination? I think there is ambiguity between statute and court rules in Nebraska.
Under Neb. Rev. Stat. 48-134, an employee must submit to an examination from time to time during the continuance of their disability. Sounds like and open and shut case. But, consider the following:
Discovery Rule 6-335 authorizes medical examinations only upon motion for good cause shown. To me, that means an employer/insurer would need to make a motion for a defense examination show the court why the examination is necessary.
I realize this is a somewhat controversial proposition. But even if you blanche at applying the idea in its entirety, a less controversial application of Rule 35 would be to require a motion and proof of good cause if an insurer/employer is ordering a functional capacity evaluation. (FCE) FCEs are done by physical therapist and physical therapists aren’t physicians under Nebraska Workers Compensation Court Rules 49(P) or 10.
I believe 6-335 allows examinations from a broader class of examiners, but it clearly imposes more procedural and evidentiary burdens on defendants. Requiring court orders for examinations would also encourage defendants to see if plaintiffs would agree to certain examiners in order to forgo a motion where they would have the burden of proof.