Tag Archives: Rule 10

Why does your doctor want you to sign a “work restriction agreement”?

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I saw something new in the world of workers’ compensation last month; a “work restriction agreement” between an employee and a doctor. The agreement raised my eyebrows when I first saw it and it raised my eyebrows again when I dug it up to write this post.

The more I thought about this agreement, the more I saw the handiwork of a nurse case manager. Nurse case managers have all sorts of advantages over injured in workers in a workers’ compensation claim. In my mind, this agreement really seemed like running up the proverbial score.

So why did this agreement rub me the wrong way?

Trust and stigma in workers’ compensation

When I saw the agreement, I thought about the agreements that doctors often make patients sign in order to receive opioid pain medication. To some extent those agreements are well-intentioned because they can inform patients about how to take medication properly.  But the agreements have been criticized for undermining the doctor-patient relationship and stigmatizing users of prescription drugs as potential addicts. Injured workers are equated with drug addicts.

Like drug addiction, issues about doctor-patient trust and stigma are major issues for injured workers. Many injured workers refuse to claim workers compensation benefits out of fear as being stigmatized as freeloaders looking to “milk the system”. But even if workers overcome that stigma and claim benefits, most workers are surprised to find how little privacy they have regarding their health history once they claim benefits.

The role of the nurse case manager

One of the most visible examples of the relative lack of privacy in workers’ compensation claims is the nurse case manager. A nurse case manager is usually a nurse hired on behalf of the workers compensation insurer, but it can be someone employed directly by your employer. This nurse case manager will suddenly pop up in the examination room when you visit your doctor or a doctor about a work injury.

We tell our clients to tell that nurse case manager to scram (politely of course). That might be less of an option if the nurse case manager works at your company and is more or less in management. An employee may feel pressured to allow a company nurse case manager in an exam room out of fear of losing their job or being disciplined. Nebraska law makes it illegal for employers to retaliate against employees for claiming workers’ compensation. I’ve never seen a case related to an employee telling an in-house nurse case manager to leave an examination room, but it could be an interesting case.

But even if you can get the nurse case manager out of the exam room, you can’t stop a nurse case manager from talking with your doctor privately. So, what is it that the doctor and the nurse case manager talk about? Oftentimes it’s whether an employee can return to work. That’s where these “work restriction agreements” come into play.

How the work restriction agreement works and can work

I think nurse case managers are driving the bus on “work restriction agreements.” Some doctors like nurse case managers. I think part of reason some doctors like nurse case managers is oftentimes a nurse case manager will have access to written job descriptions that help doctors to tailor work restrictions.

The work restriction agreement I saw incorporated a written job description. The agreement contained a provision that the workers work restrictions were just exactly as described by the doctors note. This would limit the employee’s ability to testify to the extent of their own restrictions at trial.

In addition, the agreement contained a provision that the employee would refuse work that exceeded her restrictions. Interestingly enough, the agreement created no requirement that the employer not ask or force the employee to exceed their stated work restrictions.  Overall the document created obligations for the employee, but none for the employer. (If this sounds like collusion, it is and you can read more about why this collusion is usually permitted here.)

Given the one-sided and legalistic nature of the “work restriction agreement”, I am not surprised it showed up in cross-examination like questioning from an employer’s lawyer in a workers’ compensation deposition. The nurse case manager was essentially helping to create what amounts to attorney work-product to be used in a workers’ compensation case. (It could also be used in an employment law claim as well.) But while a “work restriction agreement” is a fairly blatant effort to create evidence, nurse case managers have more subtle tactics.

In Nebraska, medical dictation or charting can be admitted into evidence in a workers’ compensation case without worries about hearsay or foundation objections. A good nurse case manager can influence doctors to create medical evidence that is helpful for an employer.

Why nurse case managers have clout

Of course, insurers have more blunt tactics to influence medical evidence – they pay the bill. I remember sending a questionnaire out to a doctor in a case because their dictation wasn’t enough to help prove my client’s case. I was bluntly told by clinic staff that since “workers compensation already paid the bill” that they saw no reason why they needed to fill out additional paperwork. Paying the bills gives insurers a lot of influence and make their nurse case managers seem a lot more persuasive than they would be otherwise.

Many nurse case managers also have long-standing relationships with doctors which leads doctors to trust nurse case managers. It seems nurse case managers aren’t happy with their advantages and are seeking to further their advantage over injured workers through the use of forms like “work restriction agreements” that further stigmatize injured workers.

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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Do court rules make it harder for PTs to manage pain in workers’ compensation cases?

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Physical therapists are playing an increasing role in pain management in workers’ compensation as the prescription of opioids has been curtailed over concerns over abuse of those drugs. But at least in the Nebraska Workers’ Compensation Court, physical therapists (PTs) may not be able to meet their increased responsibilities due to their ambiguous status as experts under court rules.  

Nebraska Workers Compensation Court Rule 10 holds that the court may admit reports from physical therapists but are not required to admit those reports as expert testimony.

This ambiguity creates confusion about what a physical therapist can testify to through written report in the Nebraska Workers’ Compensation Court. If physical therapists are going to take the lead in treating chronic pain this could mean that a medical doctor would have to ratify the suggestions of a PT when it comes to treating pain for those recommendations to have any weight in the court.

Physician-ratification of functional capacity evaluation tests performed by PTs amounts to an informal requirement for the appointment of a vocational rehabilitation counselor for a loss of earning power evaluation. I’ve written about the gap or squeeze in workers’ compensation cases when injured workers can go for weeks or even months without receiving either temporary or permanent benefits. In my experience the practice of requiring doctor endorsement of FCE results delays the payment of permanent disability benefits and often burdens injured worker with additional expenses.

I believe the requirement that doctors endorse the recommendations of physical therapists would also serve to delay and make it more costly injured workers to get treatment for chronic pain recommended by physical therapists. Additional delay and cost could make pain management without the use of opioid drugs more difficult.

Lawyers for injured workers in Nebraska should not accept the practice of physician-endorsement of physical therapist reports. I had some recent success in getting a loss of earning power ordered based just on FCE results. (Feel free to contact we directly for a copy of the order) But even in that hearing I made sure that those FCE results were endorsed by a doctor.

The plaintiff’s bar should also look to the legislature or the Nebraska Workers’ Compensation Court rule making process to allow the use of PT reports without doctor-endorsement. Last year the court rejected an effort to allow physician assistants to testify by Rule 10 report by a 5-2 margin. There may be a better chance for physical therapist reports to admitted on the same basis as doctors as physical therapists are already included in the language of Rule 10.

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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Somebody get me a doctor: Nebraska rules against P.A reports in workers’ compensation

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Somebody get me a shot! (Sorry no appropriate Diamond Dave images to go with this post)

The Nebraska Supreme Court held recently that a written reports from a Physician’s Assistant or P.A. are inadmissible into evidence under the Rule 10 of the Nebraska Workers’ Compensation Act.

The decision resolves what amounted to a “circuit split” among the seven judges of the Nebraka Workers’ Compensation Court as to whether P.A. reports were admissible into evidence.

The decision didn’t come as a shock to me or any of the other lawyers at this firm. The decision shouldn’t impact how we or any other lawyers develop evidence in Nebraska workers’ compensation cases.

But I believe the decision harms workers in rural areas whose only access to medical care is often a P.A. The decision also harms workers without health insurance whose only treatment for a work injury might be treating with a P.A. at an urgent care clinic. If an employer denies compensability, the only medical evidence that employee may have would be a report from a P.A.

Most lawyers “fix” P.A. reports by having the supervising doctor sign the report. I’ve had P.As take offense at that request. I’ve also had defense lawyers attack medical opinions on hearsay grounds by getting a medical doctor to admit that the P.A. is the one with first-hand knowledge about the injured worker.

Lawyers are stuck with two options if a P.A report is the sole source of expert opinion from a treating provider: 1) Call the P.A. live as a witness in the same manner as in a civil trial or 2) retain an examiner.

Neither of those is a great option. The best fix would be for the Legislature or the Nebraska Workers’ Compensation Court to amend Rule 10 to allow P.A reports into evidence.

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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