Tag Archives: MMI

Ghosted by your workers’ comp. insurance company?

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The workers’ compensation insurance industry likes to talk about patient advocacy. But after a certain point in a claim, injured workers are often left hanging by insurance companies and the nurse case managers they hire to manage employee medical care.

Workers left in a lurch by insurers are often confused or ignorant about how to proceed in a claim. And surprise, surprise, insurers use this ignorance and confusion against injured workers.

Here are some common scenarios when injured workers get ghosted by insurers or nurse case managers in workers’ compensation claims.

Medical care

Employers have an affirmative and ongoing duty to offer medical care to injured workers. But what happens when a doctor, particularly, a surgeon states an employee is done with treating a work injury and employee is still in pain? Bluntly often this means that an employee stops getting treatment. But assuming an employee has the ability to get medical care outside of workers’ compensation, an employee still faces challenges.

If an employee seeks treatment for pain and that treatment is related to the injury, sometimes employers will argue that they don’t have to pay for that treatment. Nebraska Workers’ Compensation Court Rule 50 holds an employee is stuck with the doctor they chose at the beginning of the claim unless 1) the defendant denies medical care or 2) the parties agree to a change or 3) the court orders a change.

What constitutes a denial of care is a crucial question. Employers have an affirmative and ongoing duty to offer medical care to injured workers. The safest route for an employee is to ask the insurer to approve medical care. But that isn’t always possible if employees don’t have that information or adjusters don’t respond to inquiries. Insures also tend to ignore injured workers who don’t have a lawyer.

Arguably, not offering medical care is a denial of compensability, so an employee can chose to any provider doctor and have those bills paid. An ongoing and affirmative duty to offer care should mean an employer can’t get out of paying medical bills just because the stopped communicating with you about your claim. However, getting medical bills paid in that situation will probably involve hiring a lawyer and going to court. Many employees are intimidated by that process.

Why employers should offer you medical care

Employers have good reason to offer ongoing medical care. First of all, an injured worker can lose out on disability benefits if they decline medical care Neb. Rev. Stat 48-120(2)(c). By offering medical care, an employer can also maintain control over medical care. A recent case provides a good example of the protections that employers are entitled to if they offer medical care.

The Nebraska Supreme Court held in Rogers v. Jack’s Supper Club that an employer was not responsible for paying for bills incurred for treatment in Florida for an employee who moved from Nebraska to Florida. The court held so because the employee didn’t ask to formally change doctors from the court or the employer.

I think Jack’s Supper Club is a harsh result. I believe Neb. Rev. Stat. 48-120(6) gives judges broad latitude to order changes of doctors under Rule 50.  But in that case the defendant actually offered medical care to the injured employee. Arguably, the defendant in that case, met their affirmative duty to offer medical care and did not deny compensability.

Aren’t they supposed to pay me something?

While employers have a duty to offer you medical care for a work injury, their duty is less clear when it comes to paying permanent disability benefits. Again, insurers and nurse case managers tend to disappear after surgical care ends. Usually when a surgeon releases an injured worker from care they are deemed to be at maximum medical improvement or MMI.

I’ve written quite a bit about employers/insurers short change employees by ending payment of temporary disability and delaying payment of permanent disability. But that squeeze or delay presumes an employee actually gets paid permanent disability. In order to get paid disability for an injury to a specific body part, a doctor generally needs to give an impairment rating. But usually someone needs to ask for and pay for an impairment rating.

Often times insurance types just don’t ask for the impairment rating. Once they insurer gets an impairment rating, they have 30 days to pay the value of the impairment rating to an injured worker. But they don’t have a spelled out duty under Nebraska law to ask for an impairment rating the same way they have a duty to offer medical care.

I would argue the beneficent purpose of the Nebraska workers’ compensation act would give insurers a duty to ask for an impairment rating. But it might be up to the Unicameral to impose that duty on insurers.

Do I have an impairment rating for my injury?

If you had surgery, you almost certainly have an impairment rating. That impairment rating is likely worth at least a few thousand dollars of tax free money. If you have had surgery there is a reasonable possibility you will need some medical care in the future. Impairment ratings and future medical care cost insurance companies money. One reason that insurers and employers ghost injured workers is that they are hoping they won’t make additional claims or ask for payment of benefits that they are owed.

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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What is a Functional Capacity Evaluation and what does it mean for a workers’ compensation claim?

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A functional capacity evaluation, or FCE for short, is a test that is usually conducted by a physical therapist that tests your physical abilities. They are common in workers’ compensation claims that involve surgeries or extended courses of treatment. So why are injured workers asked to perform functional capacity evaluations:

Injured worker is done treating and medically stable: Usually a doctor will order a functional capacity when the injured worker is medically stable. Sometimes the term “maximum medical improvement” or MMI is used in conjunction with an order for an FCE. MMI is as much a legal determination as it a medical determination. But when an injured worker is at the point of an FCE, the insurer likely believes or would like to believe the claim is close to finished.

Determining restrictions for return to work, permanent disability and vocational rehabilitation. FCE results are given almost total deference by workers’ comp bureaucrats like adjusters and case managers. HR managers also rely on them to place injured workers back in employment. But the FCE is only an estimate. By law an employee can testify to the extent of their own restrictions and an employer has some reasonable obligation to work with those restrictions. A Judge can also rely on testimony from a worker about the extent of their own restrictions. The problems is that an employee may have to wait months before they can testify to their own restrictions and go without benefits and pay until then.

Restrictions from an FCE can also be used to determine permanent disability or vocational rehabilitation benefits. This should mean that at some point a vocational rehabilitation counselor should be involved in your case. Even if you have returned to work for the same employer, in many cases a counselor should be still he helping to determine your disability. Also even if you haven’t gone back to work and might have applied for or be receiving social security disability a counselor should be performing a loss of earning power evaluation in many cases. Often times an insurance company will attempt to close a case after an FCE.

Employers/Insurers may be trying to the validity of your work restrictions. FCEs are designed to see if an employee is giving full effort on the test. In many cases an FCE that is set up by employer/insurer harkens back to the old concept of “trial by ordeal” or “trial by battle” where success in a physical feat could prove guilt or innocence. In the case of a workers’ compensation claim success or failure in an FCE can go a long way towards determining the ultimate outcome of a workers’ compensation case.

Regardless of why an injured worker is being sent to an FCE, it is probably good idea for an injured worker to check-in with an experienced workers’ compensation attorney for a free consultation if they are scheduled for an FCE. The attorneys at our firm can help injured employees navigate the trial by battle that an employer-scheduled FCE can be. We can also let you know what to expect after an FCE and help you overcome the consequences of a bad FCE.

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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