NWCDN Members regularly post articles and summary judgements in workers’ compensations law in your state.
Select a state from the dropdown menu below to scroll through the state specific archives for updates and opinions on various workers’ compensation laws in your state.
Contact information for NWCDN members is also located on the state specific links in the event you have additional questions or your company is seeking a workers’ compensation lawyer in your state.
The Nebraska Workers' Compensation Court will hold the swearing-in ceremony for Judge Brynne Holsten Puhl today at 2 p.m. The public is invited to the ceremony, which will take place in the Warner Chamber of the Nebraska State Capitol, located off the Rotunda on the 2nd Floor, 1445 K St., Lincoln, NE. The newly appointed judge will be the guest of honor at a reception following the ceremony at the Nebraska Workers’ Compensation Court.
Select this link to view the news release.
Select this link to view the event's live video stream, provided by Nebraska Public Media.
Due to the retirement of Judge James R. Coe on April 15th, there is a judicial vacancy on the Nebraska Workers’ Compensation Court. On Friday, March 29th, the Judicial Nominating Commission for the Nebraska Workers' Compensation Court submitted two names to Governor Jim Pillen: Jill K. Hamer Conway of Omaha and Brynne Holsten Puhl of Lincoln. Six Judges serve on the Nebraska Workers’ Compensation Court and hear cases across the State of Nebraska.
Effective as of January 1, 2024, the maximum weekly income benefit under the Nebraska Workers’ Compensation Act will increase to $1,094.00. This amount applies to work-related injuries and illnesses occurring on or after January 1, 2024 (https://www.newcc.gov/home/court-news/2023-10-news).
Also, effective January 1, 2024, the mileage rate will become 67.0 cents per mile for travel to seek medical treatment or while participating in an approved vocational rehabilitation plan. See related news release (https://www.newcc.gov/home/court-news/2024-01-news).
Historic mileage reimbursement rate information is available in the Tables of Maximum / Minimum Compensation Benefits, Burial Benefits, and Mileage Reimbursement Rates on the Nebraska Workers’ Compensation Court’s “Benefits” web page (https://www.newcc.gov/service-providers/attorneys/benefit-rates).
After serving the Nebraska Workers’ Compensation Court for 27 years, Judge Fitzgerald retired on May 31, 2023. In a fond farewell to a nearly three-decade long history of serving the bench, it’s fitting that Judge Fitzgerald’s last decision involved one of the most disputed and complex injuries in the workers’ compensation setting: complex regional pain syndrome (“CRPS”).
On May 26, 2023, Judge Fitzgerald authored an Award in Howell v. Transit Authority of the City of Omaha. The central dispute in the case was whether the employee had CRPS. At trial, the employer offered the live testimony of Dr. Massey. During direct examination, Dr. Massey pointed to the AMA Guides to the Evaluation of Permanent Impairment which he noted comprised the diagnostic criteria for CRPS. Dr. Massey testified that the employee did not have the necessary criteria to be diagnosed with CRPS. In contrast, the employee offered the deposition testimony and report of Dr. Carlo Ponti. Dr. Ponti alternatively found that the employee did have CRPS as a result of her work-related accident and injuries.
Before discussing Judge Fitzgerald’s ultimate decision, it’s important to note that CRPS, also known as reflex sympathetic dystrophy syndrome, is one of the most litigated injuries in workers’ compensation cases across the country, not just Nebraska. The difficulty usually lies in attempting to separate a true CRPS diagnosis from malingering. In the last five years alone, over 21 different cases have been decided by the Nebraska Workers’ Compensation Court involving CRPS. It is evident in these cases that the judges demand persuasive reports from medical providers that detail and explain the expert’s underlying rationale for believing that an employee’s condition is or is not CRPS. Unlike a fracture or disc bulge, CRPS isn’t typically confirmed or contradicted by objective imaging. It is therefore imperative in a disputed CRPS case to develop strong, persuasive evidence to present to the judge.
In case you’re still wondering about Judge Fitzgerald’s decision, he ultimately disregarded Dr. Massey’s opinion writing that “all patients do not read by the book.” Having found the employee suffered from CRPS, Judge Fitzgerald likewise held that she was entitled to ketamine as it had previously helped improve her function.
With Judge Fitzgerald’s retirement and the passage of LB 799, the number of Nebraska Workers’ Compensation Court judges has been reduced from seven to six. CPW Law wishes Judge Fitzgerald the best in his retirement and thanks him for his years of service.
If you have questions about a case involving CRPS, please contact any of the lawyers at CPW by phone or email. Want to ensure you don’t miss out on the next post in the CPW compendium series? Be sure to subscribe to our newsletter.
by | Jun 21, 2023 | Workers' Compensation
In law school, one of the first concepts taught is the proverbial “eggshell” Plaintiff. The doctrine means that you take the victim (or in workers’ compensation cases, the employee) as you find him or her. In real world terms, some employees may be hired with absolutely no pre-existing problems while others may have a number of comorbidities that make them more susceptible to injury. However, the employee’s susceptibility to injury is not a defense to an otherwise compensable workers’ compensation claim.
The vast majority of workers’ compensation cases in Nebraska involve an employee with some extent of a pre-existing medical condition. However, the law is very clear: An injury, disability, or death that is solely the result of the normal progression of a preexisting condition or that is due to natural, idiopathic causes, although occurring while the employee is at work, is not compensable. Neb. Rev. Stat. § 48-151(4). Alternatively, if the work-related accident combines with, accelerates, or aggravates a pre-existing injury, the entire resulting disability is compensable. Heiliger v. Walters & Heiliger Electric, Inc., 236 Neb. 459, 461 N.W.2d 565 (1990).
Unlike some other states, Nebraska does not look for primary or secondary causes of an injury. Stated another way, if the employment was a “contributing factor” to the employee’s injury, the entire disability is compensable. Miner v. Robertson Home Furnishing, 239 Neb. 525, 531, 476 N.W.2d 854, 859 (1991). This is even true if the employee would not have been injured but for the pre-existing condition.
Because nearly every disputed case in Nebraska involves a pre-existing condition, it is not difficult to find cases from each of the six judges discussing the concept of aggravations. However, several recent decisions reveal an important factor that the judges routinely consider when deciding an aggravation case – honesty.
Often times, for whatever reason, an employee will misrepresent or significantly downplay the extent of his or her past medical conditions. For example, an employee with a work injury to his back may claim he’s never seen a doctor for his back prior to the work accident, only for that statement to be discredited by a neurosurgeon’s records from just weeks before the alleged accident. Alternatively, an employee may admit to prior ankle problems “years ago,” but her records show her ankle surgery occurred in the month before the work accident. It is abundantly clear that the workers’ compensation judges value when an employee is honest and forthcoming about his or her prior problems. In 2020, Judge Block specifically highlighted an employee’s honesty with his medical providers when deciding to award benefits for an aggravation to the employee’s back. Similarly, in 2022, Judge Stine awarded benefits to an injured employee who had been seeking medical treatment for his disputed knee claim just a few weeks before the alleged accident. In making that decision, Judge Stine highlighted that claimant was always forthright about his prior problems and how the accident made it worse.
Contrast these opinions with cases where employees aren’t forthright about their prior problems. In 2020, Judge Hoffert entered an Order of Dismissal in part because the employee was dishonest about her lack of prior back problems. He highlighted the voluminous records presented by the employer showing that the employee had been on a leave of absence for prior back problems right up until the day before her alleged accident. This evidence, he noted, was in stark contrast to the employee’s testimony on the stand.
While it may be somewhat obvious that judges value honesty from employees, these cases show the vital importance of securing employee’s prior medical records. When evaluating new cases, it’s important to pay attention to the parts of the medical records discussing an employee’s past problems or past medications. These portions of the treatment notes can be easily glanced over, but may contain information that sheds an important light on the employee’s prior medical history that he or she is unwilling to share voluntarily. Additionally, in cases where a recorded statement is taken, it’s necessary to ask the employee about his or her past medical problems. If an employee acknowledges a relevant past history, securing those records could be a major development in the case. While it’s true that employers take employees as they find them, to evaluate whether the eggshell plaintiff rule applies, one needs to know what “cracks in the shell” even existed before the accident.
If you have questions about a case involving an employee with a pre-existing condition, please contact any of the lawyers at CPW by phone or email. Want to ensure you don’t miss out on the next post in the CPW compendium series? Be sure to subscribe to our newsletter.
The burial benefit under the Nebraska Workers’ Compensation Act will increase to $11,300.00 effective July 1, 2023. This benefit applies upon the death of an employee, resulting through personal injuries as defined in NEB. REV. STAT. § 48-151
Please select this link to view the latest news from the Nebraska Workers’ Compensation Court (https://www.newcc.gov/home/court-news).
https://cpwlaw.com/news-releases-coming-burial-benefit-to-increase/
Maximum Weekly Income Benefit: Effective 01/01/2023, the maximum weekly income benefit under the Nebraska Workers' Compensation Act is $1,029.00.
Mileage Reimbursement Rate: Effective 01/01/2023, the mileage reimbursement rate is 65.5 cents per mile.
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When it comes to setting reserves for claims, the most common expenses that come to mind are doctor’s visits, physical therapy, the potential for surgery, and indemnity benefits. Most of the time, significant consideration isn’t given to an expense like mileage. Frankly, mileage expenses rarely exceed five figures. However, mileage is unique in that almost every single compensable claim involves an employee needing to drive to seek medical treatment. Stated another way, mileage is arguably one of the few expenses that occurs in every case.
It should come as no surprise that there are very few cases in the Nebraska Workers’ Compensation Court where mileage is the sole dispute (though admittedly, it does occur once or twice a year). Likewise, mileage disputes aren’t usually hotly contested. The dispute is usually whether the underlying treatment is causally related to the alleged accident. However, several recent decisions from the compensation court serve as good reminders that mileage isn’t simply owed because the underlying treatment is compensable.
Before discussing the cases, it’s important to remember the overarching law regarding mileage. Mileage has routinely been considered a “medical expense” reimbursable pursuant to Neb. Rev. Stat. § 48-120. Specifically, when the employer is liable for reasonable medical services, it must also pay the cost of travel incident to and reasonably necessary for obtaining these services. Armstrong v. State, 290 Neb. 205, 218, 859 N.W.2d 541, 552 (2015). Before mileage is due, the burden is on the employee to prove that he or she had a compensable accident and injury, and that the treatment he or she is driving to is causally related to the same. Id. Assuming this burden can be met, most employees will demand mileage by providing the dates of medical treatment and the number of miles driven to and from that treatment. Once the employee provides notice that mileage is due, assuming there is no reasonable basis for the employer to deny the same, the employer must issue payment for the mileage within 30 days. There are very specific mileage rates depending on the date of the treatment. These rates are determined by the compensation court and can be found on its’ website here. With that general framework in mind, we turn to some of the recent compensation court decisions regarding mileage.
Pursuant to Neb. Rev. Stat. § 48-120(2)(a), an employee is not entitled to mileage if he or she selects a physician located in a different community than where the employee lives or works. This provision only applies if a physician is available in the employee’s local community or in a closer community than where the selected provider is located. By way of example, suppose that an employee living and working in Grand Island is injured. Pursuant to the Form 50 rules, the employee selects his doctor in Kearney to treat his injuries. While the law clearly allows the employee to make that selection, that decision also means the employee may not be entitled to mileage since there are many qualified physicians available in the Grand Island and Hastings areas, both which are in a “closer community” than Kearney. See Ripp v. Senior Lifestyle Holding Company, 2022 WL 2708076 (Neb. Work. Comp. Ct. July 2022)(J. Martin); Duarte v. Cargill Meat Solutions Corp., 2019 WL 5294637 (Neb. Work .Comp. Ct. Oct 2019)(J. Block).
While the judges are relatively consistent in applying the above approach, there is some disagreement as to whether this rule applies when the employee selects a surgeon outside of his or her local community. In 2016, Judge Hoffert held that an employee’s right to select his or her surgeon essentially trumps the provision regarding mileage not being compensable if there is a surgeon available in the immediate community. In Wilson v. JBS Holdings, 2016 WL 6142878 (Neb. Work. Comp. Ct. Oct. 2016), Judge Hoffert ordered an employer to pay an employee’s mileage from Grand Island to Omaha as it was reasonable for the employee to select an Omaha based surgeon despite Hastings and Grand Island having several surgeons available. However, how far this rule will stretch is a bit of an unanswered question. While selecting a surgeon within Nebraska seems to be more reasonable, disputes start to become more significant when an employee chooses a surgeon in a different state. See Heisner v. The Nebraska Medical Center, 2022 WL 18216313 (Neb. Work. Comp. Ct., Dec 2022)(J. Coe)(approving the parties proposed resolution regarding compromised mileage when the employee traveled to Chicago for the surgeon of her choosing).
Along the same lines, be mindful of a medical provider that offers treatment in multiple locations. For example, a pain management provider may have offices in Omaha and Lincoln. Absent a showing by the employee that the medical services were unavailable at the location closest to their home, the compensation court may disallow an increased mileage demand if the employee treats at the location farther away from his or her home. Morales v. JBS USA, LLC, 2022 WL 274865 (Neb. Work. Comp. Ct., Jan. 2022)(J. Martin).
Another important consideration when it comes to mileage is whether the employer can confirm that the reason for the mileage is related to the accident and injury. More often than not, an employee can prove the mileage is related by simply producing the corresponding treatment notes. However, it frequently happens that an employee fails to produce any evidence explaining the mileage. Take for example one of Judge Martin’s decisions in 2019. The employee demanded reimbursement of 3,440 miles to see her doctor. However, the treatment notes from the doctor were for entirely different dates of service. In light of the same, Judge Martin declined to award any mileage.
As a final reminder, because mileage is considered a “medical expense,” it’s important to ensure that mileage is paid within 30 days’ notice of the obligation to pay unless there is a reasonable basis to deny the same. If there is no basis to deny the mileage, an employee may request an attorney’s fee for the failure to pay within 30 days. Neb. Rev. Stat. § 48-125. There are many reasons that mileage may not be compensable, including those discussed above. This, of course, is not an exhaustive list of the reasons that mileage may be fairly disputed, but instead is only a small list of reasons that may shield an employer from potential penalties.
If you have questions about a case involving mileage, please contact any of the lawyers at CPW by phone or email. Want to ensure you don’t miss out on the next post in the CPW compendium series? Be sure to subscribe to our newsletter.
Christine Thiele (hereinafter the “claimant”) filed a Petition in the Nebraska Workers’ Compensation Court alleging she contracted Covid-19 while working as a nurse liaison at a critical care recovery hospital in Omaha. Her Petition specifically alleged that Covid-19 was an occupational disease caused by her work and that she was entitled to benefits as a result of that exposure. While not specifically noted in the Order, it appears that claimant suffered rather significant disability as a consequence of getting Covid-19. In response to her Petition, the employer filed a Motion for Summary Judgment and argued that Covid-19 is not a compensable occupational disease as that term is defined by Nebraska law.
By way of quick background, in Nebraska, a work “injury” includes occupational diseases. The Act defines an occupational disease as “a disease which is due to causes and conditions which are characteristic of and peculiar to a particular trade, occupation, process, or employment and excludes all ordinary diseases of life to which the general public is exposed.” § 48–151(3). Stated another way, there are essentially two factors that must exist before the Court will classify a disease as a compensable occupational disease. First, the disease must be “due to causes and conditions which are characteristic of and peculiar to a particular occupation.” Second, it cannot be a disease that is an “ordinary diseases of life to which the general public is exposed.”
Historically, occupational disease cases are relatively few and far between. However, a few cases need to be discussed in order to understand the framework applied in an occupational disease case. In Riggs v. Gooch Milling & Elevator Co., 173 Neb. 70, 78 112 N.W.2d 531, 535 (1961), the Supreme Court of Nebraska held that emphysema (a lung condition) caused by exposure to wheat dust in a grain elevator was an occupational disease. In holding as such, the Nebraska Supreme Court recognized that the wheat dust was both peculiar to and characteristic of the operations of a grain elevator. Four years later, the Nebraska Supreme Court similarly held that contact dermatitis (a superficial inflammation) caused by exposure to cleaning chemicals, was characteristic of and peculiar to the occupation of dishwashing (the job the employee in that case held). Ritter v. Hawkeye-Security Ins. Co., 178 Neb. 792, 795, 135 N.W.2d 470, 472 (1965). Nearly twenty years later, a third occupational case was before the Nebraska Supreme Court. In Osteen v. A.C. & S., Inc., 209 Neb. 282, 307 N.W.2d 514 (1981), an employee developed mesothelioma as a result of his exposure to asbestos. In affirming that mesothelioma caused by exposure to asbestos was an occupational disease, the Nebraska Supreme Court highlighted that the incidence of mesothelioma is almost negligible in the population at large.
In his 2022 Covid-19 decision, Judge Fridrich discussed the three aforementioned cases and noted that all three involved employee contacts with a foreign substance over multiple years. While he recognized that mesothelioma, emphysema and contact dermatitis can be contracted outside of work, he also noted that they are commonly associated with some sort of substance unique to the injured worker’s occupation. Judge Fridrich noted the same was not true of Covid-19.
Unlike a substance like asbestos, Judge Fridrich noted that Covid-19 is not caused by a tangible substance but instead is from the same family of viruses that causes the common cold. He wrote, “While COVID-19 is more prevalent in the health care field, it is not characteristic or peculiar to healthcare workers. It is characteristic and peculiar to people, and people are found in every workplace.” (emphasis added). To her credit, the employee pointed out that Covid-19 was originally believed to be more prevalent in health care facilities at the beginning of the pandemic which is when she contracted the disease. However, Judge Fridrich fairly responded to that argument and noted that even though it may have been more prevalent to health care workers in the start of the pandemic, it was still something everyone was susceptible of contracting and it has always been spread by people. In light of the same, Judge Fridrich held that Covid-19 was not “characteristic of and peculiar to” claimant’s employment as a nurse liaison.
Even though Judge Fridrich arguably did not need to address whether Covid-19 is an ordinary disease of life in light of his finding that it was not characteristic of and peculiar to the claimant’s particular employment, he did address the same in his decision. To aid in that discussion, Judge Fridrich first discussed a Texas claim involving an employee that caught a cold at work. Amann v. Republic Underwriters, 100 S.W.2d 778, 780 (1936). In that case, the Texas Court discussed that a cold is a result of germs which attack the body. Because germs are in the “atmosphere surrounding us, at all times,” the Texas Court noted that the common cold is not an occupational disease. Judge Fridrich noted the similarities between Covid-19 and the common flu – mainly that both are a virus that “can be found literally anywhere…” Relying on the same, as well as Defendant’s expert that concluded that Covid-19 is an ordinary disease of life, Judge Fridrich similarly concluded that Covid-19 is an ordinary disease of life and therefore not a compensable occupational disease.
The purpose of including occupational diseases as a compensable “injury” in Nebraska is to recognize that some employments involve a unique hazard that manifests itself as a disease rather than an acute injury like a broken bone. However, the Nebraska Workers’ Compensation Act has never been intended to be a form of health insurance, thus why ordinary diseases of life are not compensable. Given the sheer number of people who have been impacted by Covid-19, and the plethora of places that it can be contracted, Judge Fridrich’s decision is certainly in in line with not only Nebraska law on occupational diseases, but it is also consistent with the medical science which is known about Covid-19. The decision in Theile v. Select Medical Corporation, 2022 WL 17915481 (Neb. Work. Comp. Ct.) is currently being appealed to the Nebraska Court of Appeals and a decision is not anticipated for quite some time. Whether the Court of Appeals will agree with Judge Fridrich is yet to be seen, but there is certainly good reason to affirm the decision.
If you have questions about a case involving Covid or an occupational disease, please contact any of the lawyers at CPW by phone or email. Want to ensure you don’t miss out on the next post in the CPW compendium series? Be sure to subscribe to our newsletter.