Tag Archives: Nebraska

Nebraska work comp court rejects rule change on P.A. reports

Posted on December 20, 2018 by Jon Rehm

The Nebraska Workers Compensation Court isn’t in the state capitol anymore. But this is a good picture.

By a 5-2 vote, the judges of the Nebraska Workers’ Compensation Court rejected a proposed change to NWCC Rule 10 that allows physician assistants, nurse practitioners and neuropsychologists to testify by written report in the Nebraska Workers’ Compensation Court.

The rule change was proposed in response to the recent Bower decision that held that P.A.s could not submit written reports in the court because they were not mentioned in the text of NWCC Rule 10. Rule 10 designates which experts may testify by written report in the court.

I’ve written here and here that I believe that including P.A.s within NWCC Rule 10 benefits uninsured and rural injured workers who may not have access to care besides a P.A. or nurse practitioner. P.A.s also work closely with specialists and often handle matters like light or alternate duty restrictions. Allowing P.As to testify by Rule 10 report would clear up any amhguity over P.A. assigned temporary duty restrictions. Furthermore allowing P.A. reports under Rule 10 may decrease litigation costs for workers and employers/insurers.

However a majority of judges of the Nebraska Workers Compensation disagreed. The majority seemed to agree that P.A. reports were admissible into evidence, but could not be replied upon as expert testimony. That interpreation seemed to vary from the opinion that Bower excluded P.A. reports from evidence.

Under Neb. Rev. Stat. 48-163, the Nebraska Workers Compensation Court has the power to prescribe its own rules of evidence and procedure.

Also at Thursday’s hearing the court adopted a fee schedule for injuries covered under the Nebraska Workers Compensation Act for 2019. The fee schedule determines how much a medical provider can be paid for services under the act. The fee schedule means that the reasonableness of medical charges is generally not litigated in workers’ compensation cases in Nebraska. This lessens litigation and encourages medical providers to accept workers’ compensation patients. Other states, notably New Jersey, do not fee schedule medical charges which leads to more complicated workers’ compensation claims.

The court also voted in favor of rule changes about filing, lump sum settlements and doctor choice.

Nebraska considers rule change to allow P.A. reports in workers compensation cases

Posted on December 18, 2018 by Jon Rehm

On Thursday, the Nebraska Workers’ Compensation Court is considering amending NWCC Rule 10 to allow physician assistants or (P.A.), nurse practitioners and neuropsychologists to testify by written report.

The proposed rule change appears to have come in response to the recent Bower v. Eaton decision where the Nebraska Supreme Court held that P.A.s could not testify by written report in the Nebraska Workers’ Compensation Court.

I wrote in October that I believe the Bower 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.A.s 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.

Under the Bower decision, 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.

The prohibition of P.A. testimony by written report can also complicate litigation for employers. Often surgeons will have P.A.s do post-surgical follow up visits. In many instances the P.A. will issue return to work notes for light or alternate duty. But since a P.A. isn’t a recognized expert under NWCC Rule 10, there would be some question over whether a P.A. had the right to issue return to work notes. This could weaken an employer’s case that they were accommodating a work injury.

Talking points for injured workers who want to see their own doctor

Posted on December 10, 2018 by Jon Rehm

Talking points for employers looking to undermine rights of injured workers to pick their own doctor

I was sitting in a conference call when I screen captured the email that is the photo for this post.

The email came from an occupational medical clinic in Omaha. It used the occassion of an updated doctor choice form from the Nebraska Workers Compensation court to distribute talking points for management when injured workers balk, rightly, at being sent to an occupational medical clinic.

Injured workers have the right to pick their own doctor in Nebraska. But that doesn’t mean that the insurance industry and self-insured employers aren’t going to try to control medical care to their advantage. Insurance companies spend money on “nurse case managers” and self-insureds usually have in-house nurse case managers, who in my view, try to persuade doctors to write medical records and reports that are favorable to the employer. The use of occupational medicine or “occ, med,” clinics is another tactic used by emplyoers to get favorable outcomes for themselves in workers’ compensation claims.

These talking points overcoming employee objections to going to an occ, med. clinic are an example of how employers/insurers try to work around rules that allow injured workers to see theiir own doctors in Nebraska.

I am going to break down these talking points one by one.

1.“We want the best care for you.” If an employer wants the best care for their employees, it would stand to reason they would let the employee go to a doctor who has treated the employee previously and knows their medical history. Treatment would be more effective and efficient without having to re-invent the wheel with a new doctor.

A lot of injured workers end up at occupational health clinics because they don’t have a family doctor because they don’t have health insurance. If a company doesn’t offer affordable health insurance, I would question whether the company really wants what is best for their employees.

2. See you right away – If the injury is acute, an employee will be sent to the emergency room rather than an occupational medical clinic that is more or less an urgent care clinic. While there can be delays in getting to see a family doctor, many family doctors or general practitioners will hold back appointments for urgent cases like work injuries. Injured workers need to be assertive with medical office staff in insisting that they be seen that day.

Of course, this point is moot if an employee doesn’t have their own doctor. See the previous paragraph. That’s why I support the initiative to expand Medicaid in Nebraska.

3.You don’t have to pay if you go to an occ. med. clinic – Under the Nebraska Workers’ Compensation Act, an employee doesn’t have to pay out of pocket for medical care – period – it doesn’t matter who they see. There is an element of truth that some doctors don’t accept workers’ compensation insurance. But if the case requires a referral to surgeon, that surgeon will almost certainly accept workers’ compensation insurance.

By the way, if an employee does get stuck at an occ, med. clinic and they get a referral for a surgery, they can pick their own surgeon even if the employee agreed to let the employer pick the doctor at first.

4. You have to go to this clinic to get drug tested clinic anyway – This isn’t so much a talking point as it is an assertion of power by an employer. It’s a thinly veiled threat that if the employee doesn’t go to the cliinic the employer wants, then they are going to be in trouble. The use of occupational health clinics to perform mandatory post-injury drug testing is a way from employers to cleverly work around Nebraska law on doctor choice under the cover of state and federal law about drug testing. Employee drug testing is as much about employers asserting control over employees as it as about employee safety.

OSHA regulations have recently been revised to allow employers more clarity — or latitude — to drug test emplyoees after a work injury. I will post on this in the near future, but take a look at this post for now,

In short, some employers are going to do their worst to cajole and coerce injured workers into undermining their workers’ compensation case by not letting employees pick their own doctors. Employees in such a situation ought to call a lawyer to get advice and help with their workers’ compensation case.

Indefinite suspensions are employer ghosting

Posted on December 6, 2018 by Jon Rehm

True fact stated: Millennials didn’t invent workplace “ghosting”

Employee “ghosting”, or employees quitting without notice, has been a hot topic among HR “influencers”. This trend seems to be blamed on the usual suspects of millennials and the internet.

But more thoughtful commentators have argued employers bear some of the blame for employee behavior through harsh application of employment at-will. One particularly nasty example of employer “ghosting” is the indefinite suspension.

This form of employer ghosting is well-established enough that the Nebraska Department of Labor presumes that an indefinite, involuntary suspension is a termination for the purpose of an unemployment appeal. As I’ve stated in previous posts, an employee who is terminated should have an easier time in getting unemployment benefits because they employer has to prove the employee was fired for misconduct in connection with work.

Unfortunately, there isn’t a hard and fast rule about how long of a suspension constitutes a termination. I believe it would be prudent to ask how long the suspension is supposed to last. I also think that an employee should check in with their employer about the status of investigation during a suspension. By taking these steps the employee shows that they didn’t intend to end the employment relationship, but that the employers lack of communication forced their hand.

Once an employee has filed for unemployment, the employer is forced to provide a reason and some evidence about if and how the employment relationship came to an end. If the employer doesn’t do this and the employee can show they were let go not to due to misconduct, they employee generally gets unemployment benefits. Unemployment appeal hearings also give employees some opportunity to investigate and question their employer about the reason for their termination. This information can sometimes be helpful in other employment-related cases like workers’ compensation or discrimination claims.

Fee Schedules: A defense of bureaucracy in workers compensation

Posted on December 3, 2018 by Jon Rehm

Former New Jersey Governor Chris Christie

Lawyers on “both sides of the v.” in Nebraska like to grumble about rules and regulations imposed by the workers’ compensation court.

But ideally rules make the workers’ compensation claims process easier. A good example of the benefit of some bureaucracy in workers’ compensation would be the fee schedule for medical bills required by statute and developed by the court on an annual basis. In simple terms, the fee schedule determines what an employer/insurer is required to pay for medical services in a workers’ compensation claim. The fee schedule eliminates disputes over what constitutes a fair and reasonable charges in a Nebraska workers compensation case and in many other states.

Contrast this with New Jersey, a state that doesn’t have a fee schedule in workers’ compensation. In New Jersey courts must determine fair and reasonable charge on a case by case basis. In fact, thanks to a reform put in place by former Governor New Jersey Governor Chris Christie, nearly 20 percent of workers’ compensation cases filed in New Jersey involve disputes between medical providers and insurers/claims administrators over medical charges.

One leading New Jersey workers’ compensation defense firm predicted, almost gleefully, that soon 1/3^rd of workers’ compensation cases in the Garden State will involve cases between medical providers and insurers/claims administrators over medical charge. I hate to sound cynical, but as work injuries continue to decline, workers’ compensation defense lawyers can grind billable hours in what amount to commercial disputes between doctors and insurance companies .

Putting aside jibes at the defense bar, a lack of a fee schedule means more time and expense proving up what is a fair and reasonable charge versus spending that time and expense on proving compensability and nature and extent of disability. Plaintiffs who aren’t being paid benefits or receiving medical care have to wait for a court date while doctors and insurers spend court time arguing whether an insurer has to pay $.73 on the dollar for a procedure or $.87 on the dollar for a procedure. (By the way the decision in that case was 21 pages single space in a small font.)

Uncertainty over reimbursement for workers’ compensation services would also discourage medical providers for treating workers’ compensation patients. In my experience a mutually agreed upon fee schedule for medical charges for workers’ compensation claims greatly simplifies workers’ compensation cases. An administrative solution on medical costs in workers’ compensation is much better than litigating the issue on a case by case basis.

Lincoln skywalks promote safety in all seasons

Posted on November 29, 2018 by Jon Rehm

Lincoln’s Skywalk system helps prevent slip and fall injuries in the winter.

As snow and ice return to Lincoln, discussions between downtown Lincoln businesses and city officials about the future of the Skywalk system become even more important to workplace safety.

The skywalks once served as an indoor mall in downtown Lincoln connecting stores, parking garages and hotels. (My mom worked at Miller and Paine in the 1970s and 1980s in a building that now houses Nelnet) The skywalks and buildings served by them mainly serve office workers in downtown Lincoln. I frequent the skywalks when I have work obligations downtown. Many major downtown employers, such as Nelnet, subsidize employee parking in various downtown garages. Employees can access those garages through the skywalks.

Downtown parking garages can also be accessed from the street. But with winter comes ice and the risks of slips and falls. The question becomes who would be responsible for a slip and fall when an employee is walking to and from a company assigned and subsidized parking spot off-site. Arguably a slip and fall in this situation would be covered under workers’ compensation under the “parking lot” rule articulated in Nebraska in Zoucha v. Touch of Class Lounge. It’s also possible that an employee injured while walking to and from employer subsidized public transportation, could have a workers’ compensation claim as well.

In theory, indoor walkways like the skywalk system would reduce the chances of slip and fall accidents. But from a recent observation, maintenance is lacking some parts of the Skywalk. I observed a leaky roof that lead to wet carpet on an internal walkway in the US Bank building in August.

I recently represented a downtown office worker who feared being assaulted walking to her parking spot late at night. Skywalks can help reduce the risk of employees being assaulted on the way to their cars.

My view is that downtown business owners and the city need to work together to maintain the skywalk system in the interest of worker safety.

Be thankful for poultry workers, give them a safer workplace

Posted on November 26, 2018 by Jon Rehm

Most people were fortunate to sit down for the traditional Thanksgiving meal with turkey and all the trimmings this weekend. Stopping to reflect about what people are thankful for is a part of Thanksgiving.

People should be thankful for the people who make their meals possible.

Bloomberg reported before the holiday that turkey processors have been cited for safety violations 61 times by OSHA since 2011 and that poultry workers are 60 percent more likely to be injured on the job than the average workers. Debbie Berkowitz with the National Employment Law Project also pointed out that turkey processing can be more hazardous than chicken processing because turkeys tend to be larger than chickens.

Our firm has blogged quite a bit about the dangers of meat processing whether about poultry or beef and pork which is more common in Nebraska and Iowa. OSHA and other government agencies like the USDA have recently announced plans that could increase the risk of injury to meat processing workers. But even when federal regulatory agencies were aggressive in protecting worker safety, many of an injured workers’ legal remedies – whether through workers’ compensation or anti-retaliation laws – stem from state law.

Much was made of the “blue wave” in November’s elections. Democrats picked up governorships and won control of state legislatures. Hopefully newly empowered Democrats will protect and expand worker safety and workers rights bills on a state level.

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

Posted on October 29, 2018 by Jon Rehm

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.

Workers' Compensation Watch

Published by Rehm, Bennett, Moore & Rehm

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Tag Archives: Nebraska

Nebraska work comp court rejects rule change on P.A. reports

Nebraska considers rule change to allow P.A. reports in workers compensation cases

Talking points for injured workers who want to see their own doctor

Indefinite suspensions are employer ghosting

Fee Schedules: A defense of bureaucracy in workers compensation

Lincoln skywalks promote safety in all seasons

Be thankful for poultry workers, give them a safer workplace

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

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