Effective January 1, 2023, the maximum weekly income benefit under the Nebraska Workers’ Compensation Act will increase to $1,029.00. This amount applies to work-related injuries and illnesses occurring on or after January 1, 2023 (https://www.wcc.ne.gov/home/court-news/2022-6-news).

Permanent injuries in Nebraska are either to a “scheduled member” or to the “body-as-a-whole.”  In general, “scheduled members” are those injuries specifically listed in § 48-121(3). Scheduled members include fingers, hands, toes, feet, knees, eyes, ears, and hearing. Permanent impairment to a single scheduled member, such as an arm, is compensated in terms of loss of function. You’ll most frequently see this loss of function expressed as a percentage of permanent impairment.

Alternatively, injuries to body parts not expressly listed in § 48-121(3) are commonly called whole-body or body-as-a-whole injuries. Most commonly, these include injuries to the back, neck, head, and psyche. For these whole-body injuries, compensation is based on the employee’s “loss of earning capacity” or “LOEC” which is also referred to as the employee’s “loss of earning power.”  There is no numerical formula to determine an employee’s LOEC. It is determined by considering four factors: (1) the worker’s general eligibility to procure and (2) hold employment, (3) the worker’s capacity to perform the tasks required by the work and (4) the worker’s ability to earn wages in employment for which he or she is engaged or fitted. Sidel v. Travelers Ins. Co., 205 Neb. 541, 288 N.W.2d 482 (1980).

Pursuant to a 2007 statutory amendment, the Act also provides that if an employee suffers two or more scheduled member injuries arising out of one accident and the loss of earning capacity is at least 30 percent, the compensation court has the discretion to compensate the employee based upon the resulting loss of capacity. Neb. Rev. Stat. § 48-121(3).  This is commonly called the “two scheduled member exception,” but for purposes of this post, it will be referred to succinctly as the ”exception.”

Historically, the purpose of the exception was meant to apply to bilateral injuries arising from the same accident or injuries to completely different body parts. For example, an employee who suffered bilateral knee injuries or both a hand injury in conjunction with a knee injury would be considered under the exception. That argument seemed to change in 2017 when Judge Hoffert held that an employee’s injuries to two different fingers on the same hand could also fall within the exception.

In Abdi v. JBS Holdings, 2017 WL 2437763 (Neb. Work. Comp. Ct.) Judge Hoffert first addressed whether or not a thumb and index finger qualify as multiple member injuries under the exception. To that, Judge Hoffert concluded, “The Court has carefully reviewed the subject statute and searched in vain for any applicable case law. In the end, the Court finds no prohibition against considering a thumb and finger injury as two separate member injuries as each are certainly listed as scheduled injuries under Section 48-121(3). If it were the legislature’s intent to exclude thumb and finger injuries from consideration an affirmative statement to that effect would likely have been made. Additionally, one could easily imagine a circumstance where an injured worker may lose or suffer serious injury to both thumbs in a single accident and would undoubtedly be significantly impaired as to his future earning capacity.” (emphasis added). Importantly, even Judge Hoffert seemed to recognize that the exception was most relevant to bilateral injuries.

Since Judge Hoffert’s decision, several similar cases were decided at the trial court level with differing opinions from the Judges as to whether injuries to the same extremity or limb can satisfy the “two scheduled members” exception.

The most relevant is Judge Fitzgerald’s recent decision in Espinoza v. Job Source, USA, 2022 WL 432217 (Neb. Work. Comp. Ct.). In Espinoza, Judge Fitzgerald held that a right arm and right-hand injury were not two separate injuries for purposes of the exception. As background, the employer in that case stipulated that the employee suffered both a right wrist and right elbow injury as a result of an accident on March 20, 2019. Shortly after the accident, the employee underwent a right wrist surgery. One month later, she had surgery on her right elbow. In light of the same, the employer stipulated that the employee was entitled to a 13% rating to the right upper extremity pursuant to the AMA Guidelines. This rating was a combination of a 5% rating to the elbow and a 9% impairment to the wrist. This is important because § 48-121(3) values an injury to the elbow differently than an injury to the wrist. Specifically, an injury to the elbow is worth up to 225 weeks while an injury to the wrist is worth up to 175 weeks.

Citing to the two-member exception, Judge Fitzgerald held: “A loss of use due to an injury to the wrist and the elbow in a single arm is not an injury to parts of more than one member. The arm is a single member, and any loss of use for an injury below the elbow would be included in the loss of the use of the same arm. The Court finds that an injury to the wrist and the elbow of the same arm is still an injury to a single member and does not entitle an employee to a loss of earning power.”

Espinoza is now on appeal to the Nebraska Supreme Court and is drawing attention from both sides of the workers’ compensation aisle. The Plaintiff’s bar argues that § 48-121(3) should be read to allow an employee to prove multiple injuries to the same limb to satisfy the two-member exception. However, such an argument overlooks the plain language of § 48-121(3), and the intent of the legislature from when it was passed.  Indeed, when the 2007 legislative session created the two-member exception, the phrase “bilateral injuries” was consistently utilized by proponents. The example of bilateral carpal tunnel was specifically raised as a type of injury that should qualify under the exception. Other examples included entirely different limbs – a rotator cuff and a knee.

A decision from the Supreme Court will likely not be issued for several weeks, but CPW Law will continue to closely monitor the same as it will certainly impact a dispute among the trial court Judges as to when the two-member exception applies.

If you have questions about a case involved multiple scheduled member injuries, 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.

In Nebraska, an employer is liable for all reasonable medical, surgical, and hospital services which are required by the nature of the injury, and which will relieve pain or promote and hasten the employee’s restoration to health and employment. Neb. Rev. Stat. § 48-120. This includes  plastic or reconstructive surgery and the furnishing of appliances, supplies, prosthetic devices, and medicines as needed. Simmons v. Precast Haulers, Inc., 288 Neb. 480, 849 N.W.2d 117 (2014). It also may include chiropractic care, home alternations, 24-hour in-home medical services, and moving expenses to a more accessible home. Simmons, supra; Rodgers v. Sparks, 228 Neb. 191, 421 N.W.2d 785 (1988); Hoffart v. Fleming Companies, 10 Neb. App. 524, 634 N.W.2d 37 (2001). Alternatively, an employer is not obligated to provide surgery, appliances, and devices for purely cosmetic reasons. Every year, the compensation court is asked to determine whether somewhat nontraditional “medical treatment” is compensable under the Act. This blog discusses some of those cases.

Pilates Sessions.  In 2020, Judge Hoffert was asked to determine whether Pilates sessions were compensable medical treatment. In that case, the employee’s treating physician opined that private Pilates sessions were “required to facilitate the [employee’s] medical rehabilitation” as it would “decrease the ongoing muscle tightness” from the work injury. The employer argued that such sessions were not reasonable and necessary, albeit they put forth no evidence from a medical provider regarding the same. Ultimately, largely due to the lack of evidence submitted by the employer, Judge Hoffert agreed that the employee had met her burden of proof to show that the Pilates sessions would relieve pain and hasten the employee’s restoration to health and employment, and the employer was required to pay for the medical treatment. Because of the Covid pandemic, Judge Hoffert further held that it was reasonable for the employee to have private sessions.

Massage Therapy. The issue presented to Judge Fitzgerald in December of 2020 centered on whether massages were “medical care” under § 48-120. The evidence offered at the hearing showed that the employee’s treating physician had previously said that the treatment that helped the employee most was “message therapy.” However, when the employee restarted message treatment at her own expense, the employer wrote to the treating physician and asked his opinion on whether that massage therapy was reasonable and necessary. To that, the doctor wrote, “She does have a chronic myofascial component to her pain. We are not in agreement with routine massage therapy but are happy to refer her to a trained physical therapist for myofascial techniques.” At trial, the employee testified that she attended physical therapy but received little benefit, nothing like the relief she received from massage therapy. Additionally, because the treating physician would not say that massages were medically necessary, the employee sought an opinion from her primary care provider. Without elaborating, the primary care provider opined that massages were necessary medical treatment. After citing the beneficent purpose of the Act and the fact that the treating doctor agreed that message treatment would help temporarily, Judge Fitzgerald held there is no requirement under § 48-120 that treatment provide a benefit that last a long period of time. The Court therefore awarded the message therapy treatment.

Brand New Home. In cases where employees suffer injuries requiring prosthetics or wheelchairs, the issue of home modifications frequently arise. The Nebraska Supreme Court has already stated that residential modifications fall within the purview of § 48-120. Simmons v. Precast Haulers, Inc., 288 Neb. 480, 849 N.W.2d 117 (2014).  However, in 2020, Judge Martin was asked to determine whether § 48-120 would require the employer to provide a custom-built accessible home for the employee if modifications to a current residence alone would not be sufficient. In Lewis v. MBC Construction Co., the employee’s work-related accident resulted in his leg being amputated. He required a wheelchair or prosthetic for most of his mobility. The parties did not disagree that the employee’s mobility challenges required him to have a “handicap accessible home.” However, after being evicted from his apartment (for reasons unrelated to his injury), the employee demanded that the employer build him a $400,000.00 home which included four bedrooms and a three-car garage. At trial, Judge Martin recognized that certain home accommodations would be necessary for the employee including wider doors, flooring without raised edges, and lower cabinet heights. Initially, Judge Martin ruled that the employer would have 45 days to find suitable housing that satisfied a number of requirements, or that it must alternatively build the employee an accessible home. That decision was ultimately appealed to the Nebraska Supreme Court which remanded the case back to Judge Martin for a more detailed order regarding the employer’s obligations to build or buy a new home. In the September of 2021 Order, Judge Martin changed her decision to say that Plaintiff had failed to meet his burden of proof that he was entitled to the $400,000.00 house and she therefore dismissed his Motion entirely (meaning she did not require the employer to do any home modifications). The issue has not yet been readdressed by the parties with a further hearing.

As medical treatment evolves and less traditional forms of treatment become more popular, disputes about what constitutes “medical treatment” under § 48-120 will continue to occur. The operative question in these cases is whether the treatment will “relieve pain or promote and hasten the employee’s restoration to health and employment.” Importantly, when disputes like these arise, the employer should seek contrary evidence via expert medical providers. The issue then becomes one of fact for the compensation court to determine.

If you have questions about a medical care issue, 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.

While litigation is by nature adversarial, reaching a settlement agreement can be one of the most rewarding moments. However, several recent decisions in the Nebraska Workers’ Compensation Court have been a gentle reminder that reaching a dollar figure in terms of a settlement agreement is only the first step of an entire process, a process which deserves equal attention by the defense attorney.

There are essentially two methods by which the parties can memorialize a full and final settlement: a Release of Liability or a Lump Sum Settlement. Regardless of which filing is applicable, both must be filed with, and approved by the Court. Until the Court enters an order dismissing the claim with prejudice, settlement has not been perfected. In several recent cases, the Court has addressed disputes over the settlement process. This article explores those decisions.

(1) Pay Settlements Timely

Pursuant to Neb. Rev. Stat. § 48-139(4), once the Court enters an order of dismissal with prejudice, the defendant must pay the settlement value within thirty days of the date the Release of Liability was filed with the Court. Failure to pay the settlement within 30 days results in a 50% penalty on the total amount owed. By way of example, if a defendant fails to pay a $50,000.00 settlement, the employee is entitled to an additional penalty of $25,000.00. The same 50% penalty applies to lump sum settlements which are not paid within 30 days of the date the Court enters an Order approving the same. Neb. Rev. Stat. § 48-125(3).

Every year, the Court addresses a handful of claims where the defendant fails to pay the settlement within the allotted 30 day time period. In February of 2021, Judge Hoffert awarded a penalty for a staggering $57,500.00 when the employer paid a settlement 40 days after a Release of Liability had been filed. The employer attempted to excuse its tardiness by saying a “series of unfortunate circumstances,” led to the late payment including the insurer inadvertently sending the check to the wrong firm, the attorney who received the check had COVID and was in quarantine, and the check again being sent to the wrong person from there. While sympathetic, Judge Hoffert highlighted that the law is mandatory in nature, and he had no discretion in the decision.

Because the law is not flexible, several recent cases have questioned how exactly to calculate thirty days. In February of 2022, Judge Fridrich had to answer that very question when presented with the argument that a settlement check, albeit received by the employee on the 32nd day, was still timely because of Martin Luther King Day. Citing Herrington v. P.R. Ventures, LLC, 279 Neb. 754, 781 N.W.2d 196 (2010), Judge Fridrich highlighted that if the 30th day is either a Sunday or a holiday for which the Compensation Court is closed, then the employer must pay the injured worker the next day which is not either a Sunday or a day the Court is closed. In the case at bar, the 30th day was a Sunday and the 31st day was a holiday (Martin Luther King Day). Therefore, despite the fact the payment was received on the 32nd day, the payment was not late, and no penalty was awarded.

Judge Stine was also recently asked to answer when to start counting the 30 days. As it frequently happens, an employee will sign a Release of Liability several days before the document is actually filed with the Court. In June of 2022, an employee attempted to argue that the 30 days to pay a settlement runs from the date the employee signed the release rather than the date it was filed with the Court. Quickly overruling that argument, Judge Stine highlighted that the 30 days only runs when the Release is filed with the Court.

(2) Scope of Settlements

While the vast majority of settlements in Nebraska are for “full and final settlements” meaning the employee waives all of his or her rights to benefits, there are times when the employee only waives a portion of his or her claim. For example, an employee may waive their future indemnity benefits but will keep his or her right to future medical care open. In cases where less than the entire claim is going to be resolved, it’s important to pay careful attention to ensure the settlement documents details the scope of benefits being waived.

On one end of the spectrum, in March of 2022, an employee filed a Motion asking the Court to enforce the settlement demand and require the defendant to pay certain outstanding medical bills and vocational rehabilitation. Contrary to that argument, Judge Fridrich highlighted that nowhere in the settlement agreements were those terms exempted (meaning, they were forever waived when the Court approved the settlement documents).

Contrast this with Judge Fridrich’s decision in a May of 2019 when he held that, by leaving open the employee’s right to future medical care, the employee was entitled to any and all treatment which resulted by virtue of the accepted back injury.

(3) Settlements Aren’t Perfected Until Filed

It sometimes happens that the parties agree to a settlement figure, only for one of the parties to thereafter change his or her mind. At least once a year, the Court is asked to enforce a settlement agreement that had not yet been approved by the Court.

In July of 2019, Judge Block was asked to enforce a settlement agreement against a defendant who, for whatever reason, decided to withdraw its agreement to settlement. The evidence showed that neither a Lump Sum Settlement Application nor Release was signed by the parties. Judge Block very clearly stated the Court does not have the authority to enforce a settlement agreement unless the same had been approved by the Court.

Judge Martin made the exact same holding in the May of 2021 case of Brayman v. Packaging Corporation of Amercia. In that case, no settlement documents had been filed with the Court. Judge Martin wrote, “While the Court understands plaintiff’s frustration by defendant’s action, or rather inaction, what she is seeking is specific performance of the settlement agreement. Specific performance is an equitable remedy. The Nebraska Workers’ Compensation Court does not have equity jurisdiction… Therefore, the Court has no alternative but to deny plaintiff’s Motion.”

These cases serve as a reminder that agreeing to a settlement figure isn’t the ending step. Until the correct documents are filed and approved by the Court, a settlement is not yet final. If you have questions about a settlement issue, 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.

While each litigated case in the workers’ compensation court is unique, the standard process of how a case gets to trial is roughly the same. One party files a Petition and the opposing party files an Answer. Days later, the parties typically exchange what are called discovery requests. These requests most commonly include interrogatories and requests for production of documents. In general, interrogatories are questions that the opposing party must answer, while requests for production of documents are just that, a request for tangible records or physical things to be disclosed.

The main purpose of discovery is to allow the investigation of all available and properly discoverable information in order to limit the issues at trial while allowing for an efficient resolution of a legal claim. Moreover, discovery is meant to allow adequate pretrial preparation. Above all, discovery is meant to eliminate an opponent’s tactical surprise with the aim being a result reached upon on the merits of the case rather than legal maneuvering. Norquay v. Union Pacific Railroad, 225 Neb. 527, 407 N.W.2d 146 (1987).

Because discovery occurs in virtually every case, discovery issues are one of the most common disputes the compensation court judges must determine. These disputes include a plethora of issues ranging from failure to timely respond to discovery, to providing incomplete or inadequate answers, or making objections not supported by law. Because discovery disputes are one (if not the most) filed motions in the court, it naturally follows that each judge has formed his or her own unique way of viewing the associated rules. This article specifically focuses on the two of the more common issues: failure to respond to discovery and allegedly “irrelevant” requests.

Before divulging into each judges’ view of these three disputes, it should be noted that every single judge has emphasized the importance of the parties attempting to resolve disputes without involvement of the Court. Indeed, the rules mandate such good faith attempts are made between the parties. See Nebraska Workers’ Compensation Court Rules of Procedure Rule 3(D)(4). Because motions require hearings and court reporters, these disputes can be unnecessarily expensive, and the parties should make every effort to attempt to agree on the extent of discoverable information.

In this author’s opinion, the most commonly filed Motion to Compel results from a party’s complete failure to answer discovery. In these cases, virtually every single judge will first order the non-answering party to respond to discovery within anywhere from 10 to 30 days. If the party still hasn’t responded within the ordered deadline, a split has been created as to what sanctions the Court can assess for the party’s failure to answer discovery. The more historical approach from the bench has been (in cases where the Plaintiff failed to respond) to dismiss his or her Petition with or without prejudice. If the Petition is dismissed with prejudice, it cannot ever be refiled at a later time. A Petition dismissed without prejudice can be refiled as long as the statute of limitations has not run. Judge Coe dismissed an action in August of 2021 with prejudice when the employee failed to respond to an order compelling discovery. Faatz v. American Dream, Doc 221, Page 0196 (Neb. Work. Comp. Court, 2021). Alternatively, Judge Stine in February of this year dismissed a Petition without prejudice for the failure to respond to the Court’s three prior orders compelling discovery. Pauletta v. Crete Carrier Corporation, Doc 221, No 0532 (Neb. Work. Comp. Ct. 2022). Judge Hoffert took a similar approach when dismissing a 2020 Petition without prejudice. Murphy v. Omaha-League of Human Dignity, Doc 220, No 0404 (Neb. Work. Comp. Ct. 2020). See also Wilson v. Advance Services, Doc 219, No 1401 (Neb. Work. Comp. Ct. 2021) (Judge Martin dismissing a Petition without prejudice).

While the various judges have differing views regarding whether to dismiss a Petition with or without prejudice for failure to respond to discovery, there tended to be agreement that the Petition should at least be dismissed. Contrary to that viewpoint, Judge Block, in recent decisions, has shown hesitancy to dismiss the pleadings. While he acknowledges that § 6-337(b) (2)(A-D) of the Nebraska Discovery Rules does allow for the Court to dismiss the present action, he has verbally expressed disagreement that it allows for a dismissal with prejudice. In fact, the exact language of the rule does not address whether the dismissal shall be with or without prejudice. The rules states that sanctions may include “(C) An order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof or rendering a judgment by default against the disobedient party.” As contemplated by the rule, Judge Block has elected to instead stay the proceedings until the party fully and completely complies with the order regarding discovery. Logistically, a stay on the proceedings means that the Petition is still considered on file, but the Court will not set it for trial until the stay is lifted. Practically, this approach means an employee doesn’t risk his claim being barred by the statute of limitations because the Petition isn’t actually dismissed. It also tends to allow a litigated case to become stagnant because there is no pending trial date. Thus far, Judge Block seems to be the only sitting judge who is taking the “stay” approach, but it will be interesting to monitor if this trend gains notoriety with other judges who typically preferred to dismiss a Petition without prejudice.

Another common discovery dispute is over what counsel will define as “irrelevant” requests. In a workers’ compensation claim, the issues are relatively well defined. However, it sometimes happens that a party requests discovery on a topic that seems to be wholly irrelevant to the underlying workers’ compensation claim.

The general provisions governing discovery in Nebraska provide that a party may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter. Such inquires will be allowed “if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.” § 6-326. In other words, there’s no question that discovery is meant to be construed broadly. This means that arguing something is not relevant to the pending case is not an easy argument to win. Stetson v. Silverman, 278 Neb. 389, 770 N.W.2d 632, (2009). Even so, while the scope of discovery may be broad, it is not unlimited. For example, an employee is certainly entitled to know from the employer the names of every other employee that witnessed the alleged accident. However, knowing the social security number of the witnesses would be highly irrelevant. Chestnut v. Rodney E. Rohde, Doc 221, No 1022 (Neb. Work. Comp. Ct. 2022).

Each judges takes a unique approach to determining whether a discovery request is relevant to the underlying workers’ compensation claim, and the ultimate decision always comes down to the exact type of information requested. However, important trends can be collected from some of the more recent cases. Judge Hoffert, for example, addressed whether an employee’s social media profile was relevant. In holding it was not, Judge Hoffert highlighted the lack of “factual predicate” underlying the request. Stated another way, Judge Hoffert noted the Defendant ought to present some kind of argument as to why the information was remotely relevant (for example, did the employee testify at his deposition that he posted accident-related information on his Facebook?). Judge Fridrich, in early 2022, similarly discussed how the party requesting the information should be prepared to argue how the requested information is expected to lead to discoverable information. Ziegelbein v. Moen Steel Erection, Doc 221, No 0915 (Neb.Work.Comp.Ct. 2022).

Judge Martin perhaps put it best when she verbalized her frustration when a party used the discovery rules to create unnecessary disputes long withdrawn from the true issues of the case. She wrote in a recent Order on Plaintiff’s Motion to Compel Discovery, “In looking at this matter, the Court was left to wonder what plaintiff gained from expending the time and energy to obtain this information on an accepted compensable accident and injury for which benefits are being paid.” Reading between the lines, it’s important that parties use the discovery rules for their intended purpose – to investigate the issues to be presented at trial – not as a matter of unnecessary gamesmanship.

If you have questions about a potential discovery issue, 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.

Notice Regarding Change to Nebraska Workers’
Compensation Mileage Reimbursement Rate

LINCOLN, Neb. — Effective July 1, 2022, the mileage rate will become 62.5 cents per mile for
travel to seek medical treatment or while participating in an approved vocational rehabilitation
plan.
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.wcc.ne.gov/service­providers/
attorneys/benefit­rates).
For more information about workers’ compensation in Nebraska, refer to the Nebraska Workers’
Compensation Court website (http://www.wcc.ne.gov) or call our Information Line at 402­471­6468
or 800­599­5155 (toll free).

Click here for more information!

On a global scale, one of the more unique aspects of the Nebraska Workers’ Compensation Act is the creation of vocational rehabilitation benefits. A primary purpose of the Act is restoration of an injured employee to gainful employment. When an injured employee is unable to perform suitable work for which he or she has previous training or experience, the employee is entitled to vocational rehabilitation services “as may be reasonably necessary to restore him or her to suitable employment.” The rules and regulations for vocational rehabilitation benefits can be found at § 48‑162.01. Generally speaking, before vocational rehabilitation benefits are awarded, the employee must prove that he or she has permanent restrictions or disability. This is because, absent permanent impairment or restrictions, the worker is fully able to return to any employment for which he or she was fitted before the accident, including the occupation held at the time the injury occurred. If an employee is able to work, he or she is not entitled to vocational rehabilitation.

There are two ways an employee can ask for vocational rehabilitation services. First, he or she may simply request these benefits at trial. However, an employee may also wish to request vocational rehabilitation services before trial or when litigation hasn’t been filed. This article focuses on the latter. The first step is for an employee to ask the employer if it will stipulate to a particular vocational counselor from the approved list of counselors provided by the Court. If the employer either does not agree that the employee is entitled to vocational rehabilitation benefits or will not agree to the proposed counselor, the employee may file a Request for a Vocational Counselor through the Court. At that point, the Vocational Rehabilitation Section of the Court will either grant the request and assign a counselor, or it may deny the request. If the employer does not feel that an employee is entitled to vocational rehabilitation benefits as a matter of law, it may file a Motion to Quash the appointment.

There are many reasons why an employee may not be entitled to vocational rehabilitation benefits. The first is a failure to show “prima facie” evidence of both a qualifying injury resulting from an accident, and corresponding permanent impairment and/or permanent restrictions. The Latin phrase prima facie means “first impression.” Stated another way, the prima facie standard means the employee only has to put forth enough evidence to show the Court that he/she may prevail on the issue – the Court will not actually decide if it agrees with that evidence.

This “prima facie” standard has been the center of several recent trial level decisions in the last year and therefore warrants a closer look at what the judges are saying about an employee’s entitlement to vocational rehabilitation. Before discussing the first decision, I should note that a common misconception is that an employee must have permanent work restrictions and that an impairment rating alone is not enough to support an award of vocational rehabilitation benefits. This is incorrect. See Font v. JBS USA, L.L.C., 2021 WL 1185840. The Nebraska Court of Appeals recently confirmed that, while creating a vocational plan absent permanent work restrictions may be “difficult,” it’s not necessarily legally impermissible. Stated another way, the Court can choose to award vocational rehabilitation benefits absent any evidence of permanent restrictions. This is precisely what Judge Fitzgerald did in Font. He awarded vocational rehabilitation benefits based on the employee’s 11% permanent impairment to her arm. However, just because a judge can doesn’t necessarily mean the judge must award benefits.

Judge Hoffert’s April of 2022 decision in Sorensen v. Sarpy County confirms this statement. Judge Hoffert fully recognized the employee had permanent impairment ratings for both ears, but after examining the evidence, he held, “there is no credible evidence at this juncture to quantify just how plaintiff’s medical impairments impact or diminish his ability to earn an income.” Judge Hoffert therefore declined to award vocational rehabilitation benefits as he wasn’t convinced the employee’s hearing loss meant he was not capable of performing suitable employment.

Judge Fridrich made a similar holding to that of Judge Hoffert in his 2019 decision in Rhodman v. White Trucking, LLC. In that case, the employee presented evidence of an impairment rating to his knee, but he did not have any permanent work restrictions. After declining to award vocational rehabilitation benefits, Judge Fridrich cited that a lack of permanent restrictions would result in a vocational counselor performing “unnecessary work at a cost to [the defendant].” He continued, “It seems more prudent and cost effective for there to be work restrictions in place before the costs of a vocational rehabilitation counselor are incurred.”

Judges Coe, Block and Martin have not directly analyzed vocational rehabilitation benefits in this context in the last few years, however, it should be noted that Judge Martin has discussed the “prima facie” standard as needing to be aligned with the “beneficent purpose of the Act.” Where the purpose of vocational rehabilitation benefits is to return employees to gainful employment, it’s a safe statement to say that Judge Martin will closely analyze the evidence and, if an employee presents credible evidence that he or she cannot return to suitable employment because of an accident-related injury, Judge Martin is likely to award vocational rehabilitation services.

Another common reason that vocational rehabilitation services are denied is the failure of the employee to show he or she cannot perform “suitable work.” In 2021, Judge Block recognized that an employee testified he could not use his shoulder which he claimed impacted his ability to work. However, the employee’s work record showed he had in fact returned to work after his accident without any apparent difficulties. In light of the same, Judge Block declined to award vocational rehabilitation services. Judge Stine made a similar opinion in August of 2019 when he held that the only evidence before him showed that the employee had no apparent issue returning to her pre-accident employment for some six months before she voluntarily resigned, and she failed to otherwise explain why she could not return to that job.

A final misconception is that vocational rehabilitation benefits are only eligible for employees who suffered whole body injuries. This thought is misapplying a separate role of vocational counselors. In workers’ compensation cases, vocational counselors are often asked to establish a vocational rehabilitation plan and/or assess an employee’s loss of earning capacity. While it’s true that an employee must have a whole-body injury in order to request a loss of earning power capacity evlauation, that does not apply to vocational rehabilitation services. All of the judges fully recognize this position and have been quick to reject any argument to the contrary.

Where vocational rehabilitation issues have been appearing more and more frequently in the Court, it’s important to understand both the legal requirements and each judge’s unique view of the evidence required from the employee to show a “prima facie” entitlement to vocational rehabilitation services. Knowing the unique viewpoints of each judge not only allows an employer to properly set reserves, but it also helps the employer construct an appropriate defense it if believes an employee is not entitled to benefits.

If you have questions about a potential vocational rehabilitation issue, 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. 

At the heart of almost every trial level decision is a dispute between two medical experts. In Nebraska, unless the character of an injury is objective and plainly apparent (for example, an amputation), an injury is a subjective condition and the employee has the burden of proof and persuasion to establish the causal relationship between the accident and the injury through expert medical testimony. Caradori v. Frontier Airlines, Inc., 213 Neb. 513, 329 N.W.2d 865 (1983). As a general rule, the Nebraska Workers’ Compensation Court is not bound by the usual common law or statutory rules of evidence. This means that expert Daubert challenges do not exist in the compensation court like they do in the civil courts. However, a few rules do apply to expert medical opinions in the Nebraska Workers’ Compensation Court.

First, only certain types of medical providers can provide legally sufficient causation opinions. Physical therapists, PAs, APRNs, and speech pathologists are a few of the more common specialties that cannot, as a matter of law, provide legally sufficient causation opinions. Lounnaphanh v. Monfort, Inc., 7 Neb. App. 452, 583 N.W.2d 783 (1998).  Additionally, even a qualified medical expert cannot provide expert testimony or opinions if he or she is not in possession of facts which will enable him or her to express a reasonably accurate conclusion. Haynes v. Good Samaritan Hosp., 291 Neb. 757, 869 N.W.2d 78 (2015). Stated another way, the expert must have enough facts to show that his or her opinion is not merely guess or speculation. Finally, because of unique evidence rules in the compensation court, it’s rare that a medical expert testifies in person at trial. More often than not, physician’s provide opinions in written reports and letters. There are no magic words that an expert medical provider must use, however, some language is legally insufficient. For example, a doctor’s use of phrases like “could”, “may” or “possibly” lacks the definiteness required to support an award. Edmonds v. IBP, Inc., 239 Neb. 899, 479 N.W.2d 754 (1992).

Assuming the medical expert provides a legally sufficient causation opinion which satisfies the above, it ultimately becomes the prerogative of the assigned judge to decide which expert is more persuasive. But what exactly makes one doctor’s opinion more persuasive than another? What factors do the different judges find persuasive?  At the outset, it should be acknowledged that each case is unique, and the judges will closely analyze the facts of each case. There’s certainly no way to predict with any level of certainty which doctor a judge will find to be more credible. However, there are notable trends to consider when attempting to assess if your expert opinion is going to be more credible than your opponents.

First and most obviously, what is the provider’s specialty? As a matter of law, both a chiropractor and a neurosurgeon can opine on causation of a head injury, but commonly, the judges will find the latter to be more credible in light of the additional specialized education and training required. Along the same line, a pulmonologist tends to be more credible than a general practice or family medicine physician in lung injury cases.

Secondly, what other information in the record tends to support or disprove the expert’s opinion? More commonly than one may guess, an expert will provide an opinion based on an accident description which is completely different than the employee’s own testimony at trial. Even less blatant differences between the provider’s opinion and the employee’s testimony are relevant. In 2021, Judge Block discredited an expert’s causation opinion because it discussed how a particular mechanism of injury would cause an immediate injury and pain, but that directly contrasted with the employee’s own testimony that his pain started gradually at a later date.

Similarly, lawyers sometimes fail to provide the expert with adequate information from the record. In 2019, Judge Stine held that a defense medical examiner’s opinion was “rendered unreliable” because he was not provided with a highly important post-accident medical record. Similarly, Judge Fridrich completely ignored a treating physician’s opinion because it failed to recognize or discuss any of the employee’s past medical treatment. Just recently, Judge Martin also discredited an expert’s opinion because the attorney did not tell the doctor that the treating physician previously found the condition to be unrelated to a work incident. If the physician doesn’t have the benefit of the full record, it certainly makes the opinion less credible.

Judges will also examine how the expert’s opinion compares to the daily treatment notes, and the overall presentation of the employee in the courtroom and on surveillance. Routine “physical examinations” in the treatment notes and physical therapy notes are often overlooked but can be strong pieces of evidence when disputing the nature and extent of a particular injury. By way of example, Judge Martin discredited an employee’s expert because he discussed the mechanism of injury as involving blunt force trauma, yet the emergency room records from the same day indicated the employee had no visible bruising. This is particularly true with scheduled member injuries. Frequently, an impairment rating will be based on things like a range of motion, but a review of the treatment notes may show the employee had full range of motion for months before being placed at MMI. Likewise, an expert who provides a permanent restriction of no sitting for more than an hour will leave the judges questioning that opinion if the employee sits comfortably during a three-hour trial.  Indeed, a party whose expert relies on objective medical findings and evidence tends to be more successful than one whose opinion relies on subjective complaints, (though that’s certainly not always the case, especially if the judges find the employee to be credible).

In cases involving pre-existing conditions, judges will not find it highly relevant for doctors to conclude that an accident did not aggravate that condition if the employee had no treatment for years before the incident.  In 2020, Judge Coe opined that a lack of evidence of medical treatment by an employee in the year before the incident is a strong indication that the accident caused an aggravation of a pre-existing condition rather than a recurrence. Attempting to persuade the judges otherwise has proven to be a difficult task.

Above all, the judges care about how well the physician explains his or her opinion. Every year, the judges openly speak about their views on check-box reports. While there are certainly valid reasons to use a check box report, a lawyer cannot expect to be successful if causation is only explained by a simple check mark next to the answer “yes” or “no.” Judge Hoffert explained it best when he wrote that a check box report, without any supporting information, simply lacks the kind of detail required on the “critical element” of causation. It is no secret that judges are not medical doctors. They therefore depend on the doctor to not only provide an opinion, but also explain the facts, information, and research which supports that conclusion. Using check box reports, one sentence opinions, and completely ignoring the “bad” facts in a case are quick ways to reduce the value of an expert’s opinion.

Almost as important as the factors the judges are considering when deciding between two experts is a quick discussion of what type of information isn’t relevant. If you’ve seen any courtroom TV dramas, you may be surprised to hear that the compensation court is much less contentious. In recent years, no judge has ever discredited an expert because he or she was paid for the time spent formulating that opinion. It’s well recognized that physician’s time is valuable and both parties frequently have to pay for an opinion.  Another factor rarely discussed is that a defense medical examiner may only have the opportunity to examine the employee one time. While it’s certainly true that a treating physician may be more credible because he or she examined the employee over a number of months, a defense medical examiner is rarely discredited simply because he or she wasn’t afforded that same opportunity. Unlike what you may see on TV, the judges also don’t discuss what medical schools one particular expert went to over another. While a specialist may be given more credit, no judge has ever discredited an expert because of his or her chosen medical school or training. Again, it’s worth repeating that judges care most about the substance of the opinions and don’t focus on unrelated red herrings.

It’s worth repeating that these trends aren’t a hard science. Judges decide cases based on the facts of each case. Each of the trends discussed above certainly has an exception. However, these trends are important factors to consider when predicting the likelihood of success at trial and determining whether a supplemental opinion from your expert may be necessary.

If you have questions about a potential expert issue, 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.  

Nestled towards the end of the Nebraska Workers’ Compensation Act is Neb. Rev. Stat. § 48-162.01 which establishes an employee’s rights to vocational rehabilitation benefits in Nebraska. However, a recent Nebraska Supreme Court decision has significantly muddied the waters by relying on this statute to allow an employee to essentially relitigate compensability of a prior injury.

The Nebraska Supreme Court’s (“NESC”) decision in Spratt v. Crete Carrier, 311 Neb. 262 (2022) has left defendants questioning what truly constitutes a “final” award. This history of the Spratt case started in 2016 when a driver injured his thoracic and lumbar spine. At the time of trial, both parties presented expert medical evidence which confirmed Spratt’s thoracic strain had resolved without any evidence of permanency. The compensation court therefore only awarded him additional lumbar related medical treatment. Six weeks after the award, Spratt’s doctor sought permission to treat his thoracic back pain, but the defendant declined, citing the finding in the original award. Roughly a year and a half after the original award, Spratt’s doctor placed Spratt’s lumbar condition at maximum medical improvement (“MMI”) and again noted that his thoracic spine continued to be symptomatic. The doctor also offered a causation opinion attributing the thoracic condition to the original work accident. When the defendant filed a modification to cease temporary benefits, Spratt responded by requesting a modification of the original award so that he may receive treatment for his thoracic spine.

The compensation court rightfully questioned whether it had authority to “re-visit” Spratt’s request for treatment for his thoracic condition. Indeed, in Nebraska, a party who disagrees with an order or award must challenge that opinion by either: (1) appealing to the Nebraska Court of Appeals or Supreme Court under § 48-170, or (2) requesting a modification within 14 days of the award under § 48-180.  A party who argues the employee’s condition substantially changed after an award must rely on § 48-141 which allows a modification on the grounds of an increased or decreased incapacity due solely to the injury. Spratt neither appealed nor requested a modification of the original award under § 48-141 or § 48-180. In light of the same, the compensation court held it did not have the statutory authority to “re-visit” an issue that had been previously adjudicated at a prior hearing.

Spratt appealed and the NESC advanced the appeal to its docket. For the first time, Spratt argued that § 48-162.01(7) allowed the compensation court to award thoracic treatment. After discussing the importance of finality, but also highlighting the “beneficent” purpose of the Act, the NESC reversed the compensation court and held that it had the power under § 48-162.01 to “modify the original award.”

Before discussing the context of the Spratt decision, a bit of a history lesson is in order. There’s no question that § 48-162.01 establishes most of the procedures and processes applicable to vocational counselors. At issue in this blog post is the text found in subparts (6) and (7). The exact text can be found here. Both sections use the phrase “physical and medical rehabilitation services.” The question then is what the Legislature intended by including “physical and medical rehabilitation services” in a statute reserved for vocational rehabilitation benefits. There’s no dispute that Neb. Rev. Stat. § 48-120 provides the compensation court with the authority to award medical treatment, including treatment that is “physical and medical rehabilitation.” During testimony of a 1969 amendment to § 48-162.01, a workers’ compensation judge testified to the legislature that vocational rehabilitation and “physical or medical rehabilitation” were two very different things, yet rather than remove the language in subparts (6) and (7), the Legislature has continually retained it. To be clear, while the language has been kept, it has rarely ever been amended or discussed beyond renumbering or grammatical changes. In fact, the 1993 version of § 48-162.01 includes almost the exact same wording of what is found currently in section (6).

One could argue that, at the time § 48-162.01 was drafted, the Legislature recognized the interplay between one’s ability to return to work and certain types of medical rehabilitation. In 1993, § 48-162.01 actually stated in part that vocational “specialists shall continuously study the problems of rehabilitation, both physical and vocational…”  (emphasis added). Likewise, in the medical field, “physical and medical rehabilitation services” commonly refer to the practice of medicine which involves a multifactorial approach to restoring function. These services sometimes include medical treatment that isn’t necessarily medication or physical therapy. One could argue then that the use of the phrase “physical and medical rehabilitation” may simply have been a way of ensuring that an employee receive more unique kinds of treatment if necessitated to accelerate an employee’s return to gainful employment.

With this brief history in mind, fast forward to the late 1990s when the NESC decided Dougherty v. Swift-Eckrich, 251 Neb. 333, 557 N.W.2d 31 (1996). In that case, the compensation court awarded a vocational rehabilitation plan which ended in August of 1994, but the end date was based on a miscalculation by the vocational counselor. There was no question that the actual end date should have been in December, but the employee failed to appeal or otherwise challenge that decision. Therefore, at a later hearing, the compensation court extended the vocational plan through December. The employer appealed. Reversing the compensation court’s decision, the NESC held that the court was without statutory authority to make such a change respecting vocational rehabilitation.

In response to Dougherty, the 1997 Nebraska Legislature amended § 48-162.01. The amended language can now be found at the end of subpart (7) and reads: “The compensation court or judge thereof may also modify a previous finding, order, award, or judgement relating to physical, medical, or vocational rehabilitation services as necessary in order to accomplish the goal of restoring the injured employee to gainful and suitable employment, or as otherwise required in the interest of justice.” When introducing the amendment, the Senator proclaimed the intent of the bill was specifically to “allow the modification of a vocational rehabilitation plan by the Court after the award has become final for the purpose of restoring the employee to gainful and suitable employment or as otherwise required in the interest of justice.” Business and Labor Committee, 95th Leg., 1st Sess. (Jan. 27, 1997) (emphasis added).

One can fairly argue that, if the Legislature didn’t intend for the 1997 amendment to apply to prior awards of medical benefits, the amendment shouldn’t have said, “relating to physical, medical, or vocational rehabilitation services.” There’s very little information explaining how this exact text was selected by the drafters, but it’s unquestionable that the debate focused on vocational rehabilitation plans. Also, don’t forget that drafters of amendments prefer consistencies in the way statutes are drafted. As noted above, don’t forget that § 48-162.01 had consistently used the phrase “physical and medical rehabilitation services.” Whether moot language or not, the drafters in 1997 would have been encouraged to maintain consistencies by using this same language in the post-Dougherty amendment.

After being amended in 1997, the court’s review of § 48-162.01 almost exclusively involved vocational rehabilitation disputes. For example, in 2007, the Nebraska Court of Appeals addressed McKay v. Hershey Food Corp., 16 Neb. App. 79 (2007). In that case, despite having a permanent injury with permanent restrictions, the compensation court did not award the employee any vocational rehabilitation benefits because he remained gainfully employed at the time of trial. Two years later, after the defendant’s company shut down, the employee requested vocational rehabilitation benefits. Denying the motion, both the compensation court and the review panel held that § 48-162.01 was inapplicable because “to invoke subsection 7, a prior award of vocational rehabilitation services must have been made.” On appeal, the Nebraska Court of Appeals affirmed the denial. The holding in McKay still dictates that the compensation court cannot award vocational rehabilitation benefits which were not expressly provided for in the original award.

Relevant here is an unpublished decision in 2016, Mischo v. Chief School Bus Service.  In Mischo, an employee received an award of benefits for a cervical injury, but the compensation court did not expressly award any future medical treatment. Four years later, the plaintiff filed a motion and asked the court to award future medical treatment for his neck. In doing so, the plaintiff relied on § 48-162.01. The compensation court held: “The provision at issue is simply intended to permit the compensation court to modify rehabilitation plans in response to changed circumstances following the entry of the initial plan.” It continued, “Plaintiff cannot use the language of the last sentence of § 48-162.01(7) to expand the Court's authority to grant additional benefits that were not awarded in the original award.” An appeal followed, but the Court of Appeals affirmed the judge’s decision.

The NESC in Spratt recognized the McKay decision and the legislative history in response to Dougherty, but nonetheless held that asking for thoracic spine treatment was not a request for new benefits, but instead, a “modification of medical rehabilitation services that the compensation court had already awarded him.”  Stated another way, the NESC held that Spratt only requested a change in the “extent” of medical rehabilitation provided for by the original award. Because Spratt had been awarded treatment for his lumbar spine, the NESC held that treatment for his thoracic spine was not a “new” benefit. By taking this approach, the NESC approved of a very broad and arguably unsupported reading of § 48-162.01(7).

The NESC provided very little context as to how the award of medical treatment for Spratt’s thoracic spine was not “new.” It wrote, “[Defendant] argues that the compensation court cannot modify an award to include any medical rehabilitation services that were not specifically included in the prior award, regardless of how similar the services were to those awarded in the prior award. Under this rationale, the compensation court would be incentivized to broadly include all hypothetical medical rehabilitation services (no matter how redundant or speculative) in order to ensure it can modify the award later if necessary.” However, the Court seems to miss the critical issue, and it confuses the manner in which the court awards future medical treatment. First, the critical issue in Spratt was not necessarily the type of medical treatment requested by the employee; it was the fact that he requested treatment for an entirely different body part. An injury to the thoracic spine is not the same as an injury to the lumbar spine just like an injury to the hand is different than an injury to the finger. Additionally, the NESC seemed to forget that the compensation court had previously held Spratt’s thoracic injury was only temporarily exacerbated by the work accident. By allowing him to “modify” the prior award, the NESC allowed Spratt a second chance to relitigate an injury that had been previously resolved by the compensation court. A fundamental rule in all legal proceedings is the idea of finality. As the NESC quoted, “Litigation must be put to an end, and it is the function of a final judgment to do just that.” Black v. Sioux City Foundry Co., 224 Neb. at 828, 401 N.W.2d at 682 (1987).  In this case specifically, the employer is prejudiced by now having to relitigate a thoracic injury that had previously been resolved.

Part and parcel of the NESC’s confusion seems to be a misunderstanding as to how “medical rehabilitation services” are awarded. After a trial, the compensation court does not detail in vain each specific type of future medical treatment that is being awarded. In fact, the NESC has previously made it clear that an employer may be liable for medical treatment “even if the necessity for a specific procedure or treatment did not exist at the time of the award.” See Sellers v. Reefer Systems, Inc., 283 Neb. 760, 811 N.W.2d 293 (2012). In light of those decisions, it’s entirely unclear what concerns the NESC had when it said, “the compensation court would be incentivized to broadly include all hypothetical medical rehabilitation services (no matter how redundant or speculative) in order to ensure it can modify the award later if necessary.” The compensation court certainly does not need to provide all hypothetical services that could be needed. Instead, the compensation court need only determine the nature and extent of the pled injuries, and, if the employee has permanent injuries, whether he or she is entitled to future medical treatment for said injuries.

To illustrate the concerns created by this holding, if Spratt files a motion and requests additional medical treatment for an entirely new body part completely unrelated to the spine, say his head or perhaps a scheduled member like his knee, would § 48-162.01 allow such an argument so long as he can prove it arises out of the original work accident?

Procedurally, this matter will now return to the compensation court. Because the NESC only held that the compensation court has the authority to “re-visit” Spratt’s thoracic treatment, the judge will still need to determine whether the employee satisfied his burden of proof and persuasion on a factual basis that he requires additional thoracic treatment to be restored to gainful and suitable employment. However, the implications of the Spratt decision may continue to haunt defendants and efforts should be made both judicially and legislatively to return § 48-162.01 to its original purpose of addressing vocational rehabilitation benefits.

If you have questions about a potential modification issue, 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.