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.