Tag Archives: Nebraska

More questions than answers on apportionment in Nebraska workers comp.

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Instead of pension benefits or 401k balances, many workers accumulate work injuries. But does compensation for a prior injury rule out compensation for a subsequent injury? After a recent state Supreme Court decision, some workers in Nebraska could be subjected to that outcome.

In Picard v. P&C Group 1, the Nebraska Supreme Court held that an employee who was compensated for permanent disability for a two wrist injury in 2012 could not be compensated for a permanent disability for a lower back injury in 2015 since they had returned to work in at higher pay/

Apportionment or not?

To workers’ compensation lawyers this is apportionment.  Apportionment is attributing permanent disability for a current injury to a prior injury. However, the Nebraska Supreme Court specifically held Nebraska does not apportion injuries and is a full responsibility state. 

But the court held that plaintiff had already been compensated for permanent disability for their two-hand injury. So as a result. they could not be compensated for their lower back injury. This decision reversed a trial court decision holding the plaintiff had a 75 percent loss of earning power for the wrist injury in 2012 and a 50 percent loss of earning power for the 2015 injury.

The court relied on the fact that the defendant had placed plaintiff in an easier job after the 2012 injury and that plaintiff continued to do their job after the 2015 injury. The court also pointed out that plaintiff was earning more after the 2012 injury and more than they were after in the 2015. These facts lead the court to hold plaintiff had not suffered a loss of earning power for the 2015 injury.

SMH

The decision left many workers’ compensation lawyers in Nebraska shaking their heads. First, the 2012 injury and the 2015 injury involved restrictions to different body parts. There were two separate sources of disability. But the court reversed the trial courts decision to award benefits to for the second injury.

Secondly, the decision appeared to ignore established definitions of loss of earning power. Sure the plaintiff was earning the same (or more) wage after the 2015 injury as before, but that back injury would likely disable the employee in the broader job market. The injury would also likely prevent them from working at some jobs within the plant. That’s why the vocational counselor found the plaintiff had a loss of earning power. The court ignored that and just found that the plaintiff had higher wages than they did before the accident, so they had no loss of earning power.

I’m also disturbed by the argument that plaintiff was earning higher wages post-accident. I hear this argument all the time from employers when I have cases when employees are still employed. True, wages go up in a nominal sense, but so does the cost of living. A worker who receives a cost of living raise doesn’t really increase their earnings.

This decision further ignored several other precedents set by the court when dealing with compensated and non-compensated injuries. It also ignored combining pre-existing conditions and injuries with a current work injury that results in a higher disability for an injured worker. 

What Picard doesn’t change

To be clear, the Picard decision only applies to permanent disability. Injured workers can still receive medical benefits and temporary disability benefits if they were injured previously. The Picard decision also only applies to so-called “non-scheduled” injuries. Workers who previously had a “scheduled injury” can be paid for another scheduled injury or for a new non-scheduled injury. Workers who previously had a scheduled injury can be paid for non-scheduled injuries. Scheduled injuries are paid based on the damage done to the body. In contrast, non-scheduled injuries are paid based on how the injury effects your ability to earn wages.

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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More redeterminations by the NDOL as Nebraska unemployment appeals increase?

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In a first for me, the Nebraska Department of Labor reversed a finding that my client had quit without good cause and awarded my client full unemployment benefit without a hearing.

The procedure where the Nebraska Department of Labor reverses itself on benefit determination without a hearing is called redetermination. As unemployment claims and unemployment decision appeals increase, I believe the Nebraska Department of Labor will use increasingly use this procedure.

What is redetermination and how is different than appeal

Normally reversing a decision by a claims adjudicator requires filing an appeal under Neb. Rev. Stat. §48-634. The appeal usually leads to a hearing where an administrative law judge decides whether someone is eligible for unemployment benefits.

But Neb. Rev. Stat. §48-631 allows an adjudicator to reconsider their decision. They can reconsider based on newly discovered wages, miscalculated wages or determinations made on misrepresentations of fact.

Now misrepresentation sounds like and would apply to fraud by an employer or employee. But, 219 NAC 15 001-D(1)  broadly defines misrepresentation for the purposes of redeterminations. For the purposes of redetermination, ignorant misrepresentation can prompt a redetermination. A lawyer may know how to obtain documents or know what documents to submit to prove a case for unemployment that a newly unemployed worker wouldn’t have thought to submit initially.

Why I think increasing in unemployment claims will lead to more redeterminations?

First, I think the Nebraska Appeal Tribunal, the court that hears unemployment appeals, is looking to manage their case load. As a result of the pandemic, I estimate the case load at the Tribunal has nearly tripled since before the COVID pandemic.

Consequently the increase in case loads since the pandemic has doubled the time between appeals and hearings from about four to eight weeks.  But by law, the Appeal Tribunal wants to schedule hearings as soon as possible. But one advantage to a longer lag between appeal and hearing date is having more time for discovery.

With more time, a lawyer can submit those documents to the Tribunal well in advance of hearing. By submitting those documents to the Department of Labor, the Department can make a redetermination short of hearing.

Redetermination as summary judgment?

In regular civil cases, courts can dispose of cases through summary judgment. Summary judgment is a disposition of a case based on documents without a trial. The purpose of summary judgment is to speed up case resolution and save court time.

However the Nebraska Appeal Tribunal lacks a summary judgment procedure. In normal times something like summary judgment is unnecessary. However as appeals back up, the redetermination procedure may function as a form of summary judgment in the Nebraska Appeal Tribunal.

Redetermination isn’t always the end

But, parties can still appeal from a re-determination — this means employers. But in my experience, employers are less likely to appeal determinations that go against them. Addtionally, the CARES Act makes it less likely that employers will have their rates go up or be charged if an employee quits with good cause or is fired without good cause. This lessens their reason to file an appeal

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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Want to really be “open for business”? Outlaw discrimination against younger workers in Nebraska

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One way to attract and keep young workers in Nebraska; stop discriminating against them/

Last week, the Nebraska Chamber of Commerce joined their companion organizations in Omaha and Lincoln in endorsing amending Nebraska’s fair employment statute to outlaw discrimination based on sexual orientation and gender identity.

Proponents of expanding civil rights protections to LGBT Nebraskans have pitched this proposition as an economic development tool meant to keep and attract younger Nebraskans who would otherwise flee a state that allows discrimination not allowed in other states.

Maybe I’ve spent too much time tangling in the trenches with lawyers for Nebraska’s big businesses. Maybe I’m just a Bernie Bro. Maybe both, but I have a hard time keeping my eyes from rolling when I hear the “Open for Business” approach to civil rights parroted by professional progressives in our state’s unicameral and mini-Beltway. (Lincoln has a K Street with tons of lobbyists offices, just like D.C.)

I mean for-you-know-what’s sake, any employment protections endorsed by the Chamber of Commerce are bound to be milquetoast at best.

But let’s assume some merit to the “Open for Business” approach. Let’s assume civil rights laws are an economic tool. How else could civil rights laws in Nebraska be amended to help attract and keep young people in Nebraska?

How about amending our age discrimination laws to prohibit discrimination against younger workers?

Miami (of Ohio) University Professor Megan Gerhardt argued for this in a recent opinion piece for NBC News. I made a similar argument in a blog post last year. In that post, I pointed out that at least Canadian province protects workers as young as 18 in their age discrimination laws. I also pointed out that since younger workers tend to get hurt more, anti-youth bias is a way to discriminate against injured workers.

I can tell you from first hand experience, that many business types talk about “millennials” or young people in a way that would get them successfully sued even in a jurisdiction like Nebraska, if they spoke like that about a group protected under our civil rights laws.

If Nebraska really wants to keep and attract younger workers, we should amend our age discrimination laws to protect younger workers. While I support expanding our state’s employment laws to protect LGBT Nebraskans, any comparative advantage Nebraska would get in expanding those laws would be lessened if the Supreme Court expands federal civil rights law to outlaw discrimination based on sexual orientation and gender identity. Questioning by Justice Neil Gorsuch at oral argument in October 2019 on the issue has many LGBT rights advocates optimistic that the court will expand Title VII.

By expanding our age discrimination laws to include younger employees, Nebraska would truly be innovative. Nebraska is unique among states in having a one house (unicameral) and non-partisan legislature. This unique legislative body should start passing some more unique laws.

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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Neb. Ct of Appeals tightens notice requirements in workers’ compensation cases

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The Nebraska Court of Appeals held that waiting 38 days to report a work injury was enough delay in reporting to dismiss a workers’ compensation claim. Though what constitutes timely notice is a case by case determination, the Bauer v. Genesis Health Care case is troubling for workers for many reasons.

  1. Fear of retaliation not an excuse for not reporting injury – In the Bauer case the employee was worried about his job security and testified this one reason he delayed reporting his work injury. The suspicions about termination weren’t unfounded as the employee as put on leave 10 days after his injury. The Nebraska Court of Appeals disregarded this argument and found the plaintiff would have still been able to report his injury.
  2. Change in personal plans can trigger duty to report work injury – The law requires that an employee report an injury as soon as practicable. “As soon as practicable” can vary by the circumstances. The key fact is that the employee knows something could be wrong because of a work injury. In this case the fact the employee cancelled a personal trip a week after the work injury was one fact that persuaded the court the that plaintiff did not report his injury as soon as practicable.
  3. Stricter reporting standards for medical personnel – The court thought it was relevant that the injured worker was a physical therapy assistant was relevant to their conclusion that the employee did not report their injury as soon as practicable. Their theory was that professional knowledge should have lead him to conclude he needed treatment and that the injury should be reported. I wouldn’t be surprised to see insurers and their attorneys try to broaden this argument to all types of medical personnel.
  4. Change in work duties can trigger duty to report – The Bauer case was unusual in that since he was a manager he could place himself on light duty without asking permission. Usually asking for light duty would be enough notice for an employee to meet the notice requirement. But since Bauer didn’t ask, he didn’t put his employer on notice about his injury. Employees who work with co-workers to change job duties to accommodate a work injury may be vulnerable to having their workers’ compensation cases dismissed for lack of notice, if they don’t report a work injury to a supervisor soon after their duties change.

Other takeaways from Bauer

  1. Referral to specialist probably triggers a duty to report — Bauer cited to Williamson v. Werner, where the court held that an employee should have reported their injury to their employer after they reported it to their doctor. That didn’t happen in Bauer as the employee denied he was hurt at work at his first two medical visits. The court thought it was relevant that at the first visit after the work injury that he was referred for an MRI and to a specialist, yet did not report his injury to his employer.
  2. Appearances matter – Bauer had some other bad facts working against him: 1) He didn’t report his work injury until after he had been placed on leave and 2) He twice denied that he was hurt at work to providers. The court stated an employee who provides proper notice of an injury is one that is acting in good faith or honestly. Changes in stories about how an accident happened or irregularities in reporting don’t create an impression of good faith even if they can be explained. But if fear of termination is the explanation of why an employee doesn’t report a work injury, the Bauer decision indicates Nebraska courts won’t consider that factor.
  3. How the fear of retaliation harms workers’ compensation and retaliation claims – The Bauer case represents a common situation where an employee doesn’t turn in a work injury over fear of retaliation. Workers’ compensation retaliation is unlawful, but it is difficult for an injured worker to claim retaliation if they don’t report their work injury. So fear of retaliation can undermine both a workers’ compensation claim and a retaliation claim.
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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How Nebraska law shortchanges injured workers

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Workers compensation is a defined benefit that pays certain benefits for work injuries regardless of fault. But when defined benefits aren’t well-defined, injured workers get short-changed when it comes to workers compensation disability benefits.

Underpayment of benefits is already baked into Nebraska workers’ compensation law for some workers. Nebraska usually does not take overtime pay into consideration when determining disability benefits. Nebraska also caps workers’ compensation benefits at a maximum rate.

Here is the how and why fuzzy math can lead injured workers can get underpaid benefits in Nebraska. I think you can break down the reasons that workers get underpaid into disputes over wage rates and the time periods they are entitled to benefits

Wage rate

Average weekly wage and abnormally low weeks

Permanent and temporary disability benefits are controlled by the average weekly wage under the Nebraska Workers Compensation Act. The average weekly wage is usually based on an average of the past 26 weeks of wages minus “abnormally low weeks”. What’s an abnormally low week? There isn’t a hard and fast rule. For the purposes of permanent disability Nebraska workers compensation law assumes a 40 hour work week. This assumption helps address underpayment issues for permanent disability.

But no such assumption exists for temporary disability under Nebraska workers compensation law. So insurers and claims administrators have wide latitude to underpay temporary benefits. This is particularly harmful as workers who are temporarily disabled are often entirety unable to work.

Shift differentials

Workers who work evening and overnight shifts often get paid shift differential on top of base pay. Particularly if a worker works a combination of day and evening shifts, workers compensation benefits tend not to account for shift differential.

Time Period

The gap between temporary and permanent disability

Nebraska law is unclear as to when temporary disability ends and when permanent disability ends. Not only does this mean injured workers can go months or weeks without benefits, it also means that workers can be underpaid benefits. Usually this underpayment is accomplished by shortening the period of temporary disability paid.

Neb. Rev. Stat. §48-119

Under Nebraska law, the first week of disability after a work injury is not compensated unless the disability lasts for more than six weeks. This tends to happen with injuries that don’t lead to quantifiable impairments. Sometimes, employees under pressure from employers, will be released to work too soon. Insurers and claims administrators view premature returns to work as an excuse to deny temporary disability because they employee is already at maximum medical improvement

The bottom line on underpayment of workers’ compensation benefits

If employees take these claims to court, they can often win back due benefits. These monetary amounts are meaningful for injured workers, but they may not always be cost-effective for an attorney to pursue.

In wage and hour cases under Nebraska and federal law successful claimants are awarded attorney fees that can be much greater than the lost wages collected. These fees encourage lawyers to take these cases.

But under Nebraska workers compensation law a successful claimant needs the court to find there was no reasonable controversy in law or fact for the court to award attorney fees and penalties under Neb. Rev. Stat. 48-125. This is a difficult standard. This difficult standard is made more difficult over disputes over average weekly wage because average weekly wage is a question of law and fact.

In short, Nebraska workers compensation law gives insurers and claims administrators wide latitude to underpay injured workers. But since under Nebraska law it is very difficult to win attorney fees in under Nebraska law, insurers and claims administrators have little to fear in the way of penalties and attorney fees if a court rules they underpaid benefits to an injured worker.

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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Will Medicare beneficiaries see faster settlements?

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“How much will my case settle for ?” and “When will I get my settlement?” are two of the biggest questions asked by clients in a workers’ compensation or personal injury case. Medicare beneficiaries will soon better know the answers to these questions.

As of April 1, the Centers for Medicare and Medicaid Services will allow conditional payments to be made electronically. The change to an electronic payment system will allow all authorized users to view the updated demand status of CMS and track electronic payments in the “Electronic Payment History” tab.

This change should allow Medicare beneficiaries who have a workers’ compensation or personal injury claim to have their cases settle sooner and receive their settlement proceeds sooner.

A Medicare conditional payment is a payment made by Medicare in a disputed workers’ compensation or personal injury case. In a conditional payment situation Medicare will pay on a medical expense but demand that they be paid back from the proceeds of a settlement or judgment.

In substance a conditional payment issues is like any other subrogation issue where some form of health insurance pays for an injury that should be covered under workers’ compensation or a liability policy. In all cases, the plaintiff needs to know how much can be repaid so they can settle a claim and know what they might receive in a settlement.

In a Nebraska workers’ compensation case, under Neb. Rev. Stat. 48-120(8),a judge can order that a third-party who paid for medical care that was related to be a work injury be reimbursed for payments made on behalf of an injured worker.

The problem with Medicare is that the conditional payment process is often more burdensome than determining a subrogation or repayment interest from other types of insurers – it often takes longer as well. Hopefully electronic payment and tracking of payments will simplify and speed up settlements involving Medicare beneficiaries.

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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Todd Bennett elected to The College of Workers’ Compensation Lawyers

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Todd Bennett was recently inducted into the College of Workers’ Compensation Lawyers

Congratulations to Todd D. Bennett of the Rehm Bennett Moore Rehm and Ockander Law Firm who was inducted as a Fellow into The College of Workers’ Compensation Lawyers on March 16, 2019 in Miami, Florida.

The College of Workers’ Compensation Lawyers has been established to honor those attorneys who have distinguished themselves in their practice in the field of workers’ compensation.  The college is a national organization that includes plaintiff’s attorneys, defense attorneys, judges and professors.

Fellows have been nominated for the outstanding traits they have developed in their practice of over 20 years representing injured workers and acting for the benefit of all in education, overseeing agencies and developing legislation. These individuals have convinced their peers, the bar, bench and public that they possess the highest professional qualifications, professional expertise and leadership. A Fellow has a thirst for knowledge in all areas of the law that affects their representation of their clients in Workers’ Compensation.

Todd Bennett joins his law partner, Rod Rehm, as the only two plaintiff’s attorneys in Nebraska who have been selected to the college. The other two members of the college from Nebraska, defense attorneys Dennis Riekenberg and Dallas Jones, were there in Miami when Todd was inducted into the college.

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 happens when an injured worker misses a medical appointment?

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Missed medical appointments can effect a workers’ compensation claim

Injured workers may have to deal with scheduling medical appointments with multiple providers and all the other juggling of work schedules, travel and child care arrangements that go with seeing multiple doctors.So what happens when an injured worker misses a medical appointment?

Neb. Rev. Stat. 48-120 allows the Nebraska workers’ compensation court to reduce benefits if an employee refuses medical treatment provided by an employer. Likewise Neb. Rev. Stat. 48-134 allows the court to suspend benefits due if an employee refuses a medical examination requested by the employer/insurer. But even if a court reduces benefits for a refusal of medical treatment or a medical examination, that refusal of treatment or an examination would not effect whether a claim is covered by workers’ compensation. 

Even if missed appointments don’t lead direcrly to denial of benefits, missing medical appointments can be used as a way to attack the credibility of an injured worker in court.

Unintentionally missing a medical appointment wouldn’t be a refusal of treatment, but I have seen insurers, particularly third-party claims administrators, deny claims where an employee misses a medical appointment for whatever reason.

Very rarely do I see my clients refuse medical treatment. Often times clients are talking to me until after care has been denied for whatever reason. But I often have clients who are suspicious of medical examinations set up by their employers for litigation purposes. I don’t blame them.

Why employers have broad authority to examine injured workers.

Neb. Rev. Stat. §48-134 requires injured workers to submit to a reasonable medical examination and deems an “unreasonable refusal” to submit to an examination as reason to deduct from compensation of an injury. The Nebraska Workers Compensation Court has also adopted the Nebraska Rules of Civil Discovery through NWCC Rule 4. Rule 6-335 allows a defendant to have the plaintiff to submit to an examination upon showing of just cause. A refusal of an injured worker to submit to an examination set up by their employer could also lead to financial sanctions under Rule 6-337.

Why it’s more difficult for an injured worker to get a medical examination in Nebraska.

In my experience, it is hard to quash a medical examination in a contested case. But if a plaintiff wants a medical examination under Neb. Rev. Stat. 48-134.01, it’s a different story. In order for the plaintiff to obtain a court ordered IME at the expense of the defendant, the plaintiff needs to establish medical causation and show there is some dispute between doctors that an independent medical examiner can resolve. Plaintiff’s can find some leverage under Neb. Rev. Stat. 48-120(5) which gives the court some authority to order medical examinations on their own outside the medical examination statutes at 48-134 and 48-134.01.

Recently an Ohio court suspended a claim for an employees refusal to submit to a psychological examination. I am fairly certain a Nebraska court would have ruled the same way as the Ohio court.

The recent Ohio case concerned an employee who was seeking medical treatment for psychological injuries. Such a case would be difficult to bring in Nebraska. In Nebraska when medical treatment is sole issue in the case, there must be a court-appointed medical examination before an employee can file a petition.

 

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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