Fourth Quarter 2018

Nebraska

By:  Stephen P. Murray

Question:  Under what circumstances do you recommend a Utilization Review (UR) or an Independent Medical Examination (IME) in an otherwise compensable claim?

Short Answer:  In Nebraska, there are several situations that call for using an independent medical examiner in a compensable claim.  These situations include (1) when an employer wants to question whether current or future medical care is reasonable; (2) whether work restrictions provided through a pro-claimant IME or by a treating physician are medically necessary or too restrictive; (3) whether an employee has reached maximum medical improvement; and (4) whether an employee has experienced a permanent impairment.  The Nebraska Workers’ Compensation Act specifically allows for utilization review.

Discussion:  In Nebraska, employee’s have the choice of physician.  Although this does not always mean every treating physician selected by an injured worker will opine that a work accident produced a compensable injury, a treating physician’s recommendations with regard to future medical treatment and/or work restrictions can often be significantly different than an independent physician who is not treating the patient.  As such, IMEs in Nebraska are common place for not only bringing into question the compensability and/or causation of an injury, but for obtaining evidence as it relates to reasonable medical care, work restrictions (both temporary and permanent), whether an employee should be placed at maximum medical improvement, the necessity of surgery or other recommended treatment, and permanent impairment, if any.

Independent Medical Examination (IME)

Probably the most overlooked use of an IME is using it to both obtain recommendations on future medical treatment and the associated costs for that recommended treatment.  Reaching a closed-medical settlement in a case where the employee necessarily needs very expensive and continuous medical treatment for the remainder of their life is not an easy thing to do and can often create a situation where a settlement requires hundreds of thousands of more dollars to close out medical.  One way to assist in reaching a reasonable settlement is by obtaining an IME that assesses the reasonableness of a treating physician’s recommendations for future medical treatment.  With evidence in hand that supports a finding that a specific physician’s recommendations for future medical treatment are unreasonable, often settlements can be reached for less money than they would be able to be reached without such an IME.

In Nebraska, when an employee injures their head, neck, or back, permanent impairment is based on whether an injury has caused a loss of earning capacity in the employee.  A vocational counselor is responsible for providing his or her determination of the loss of earning an employee has using a number of factors.  A major factor the vocational counselor takes into consideration when assessing loss of earning capacity is whether permanent work restrictions have been recommended.  For instance, if an employee has been given permanent work restrictions of 10 pounds lifting, an IME suggesting that no lifting restrictions are appropriate would help combat the 10 pound limit.

As it pertains to permanent impairment, a lot of treating physicians are not comfortable providing impairment ratings, and as such, evidence to support whether a certain permanent impairment exists or does not exist must be proven through an IME.  In Nebraska, when a scheduled member injury occurs, obtaining an IME that will provide a permanent impairment rating for a scheduled member will help an employer avoid a penalty situation, which may be assessed up to 50% of the owed benefits if an employee experiences a permanent impairment and PPD benefits pursuant to the Nebraska Workers Compensation Act are not begun within 30 days of the notice.  See Nebraska Revised Statute 48-125.  The court in Grammer v. Endicott Clay Products, 252 Neb. 315, 562 N.W. 332 (1997) has stated that when the total amount of compensation due for permanent disability is in dispute, the employer has a duty to pay within 30 days of the notice of disability any undisputed compensation.  The court also ruled that the only legitimate excuse for delay in the payment is the existence of a genuine dispute from a medical or legal standpoint that any liability exists.  Id.  Whether an employer has been put on “notice” of a permanent injury is left primarily up to the court to decide, which means if a treating physician notes that a permanent injury has occurred, and an employee has evidence from their own IME that a permanent impairment exists, an employer may find themselves in a penalty situation at trial without evidence of an employer IME suggesting no permanency exists.

Utilization Review (UR)

Although it is not widely used, Nebraska does allow utilization review by an agent, peer review and dispute resolution to determine whether treatment is medically necessary, inappropriate or excessive.  Pursuant to Nebraska Revised Statute 48-120.02, any person or entity may make a written application to the Nebraska Workers’ Compensation Court to have a managed care plan certified that provides management of quality treatment to injured employees for compensable injuries and diseases.  The Court will take credence in and certify a plan if it finds, among other things, that the plan provides appropriate financial incentives to reduce service costs and utilization without sacrificing the quality of service; provides adequate methods of peer review, utilization review, and dispute resolution to prevent inappropriate, excessive, or not medically necessary treatment and excludes participation in the plan by those individuals who violate treatment standards.

Practice Tip:  In Nebraska, choosing the proper IME physician can greatly influence not only the financial exposure of a workers’ compensation case, but the chances of actually prevailing on certain issues in that case at trial.  Many physicians that do IMEs almost exclusively side with either the employee or the employer.  Judges in Nebraska often take note to the physician that has provided a defense-directed IME.  Choosing a physician that is not exclusively hired by defense firms is a good way to gain credibility amongst many of the judges as it will be perceived as less biased.