First Quarter 2018


By: Stephen P. Murray

Question:  In an otherwise compensable claim, when does an employer have to pay for pre-surgical testing/treatment and pay TTD benefits while such testing/treatment occurs?

Short AnswerIn limited circumstances in Nebraska, an employer may have to pay for personal health pre-surgical testing/treatment for conditions such as obesity.  However, generally it is very difficult on appeal for that testing/treatment to survive the Supreme Court of Nebraska without that testing/treatment directly relieving some type of condition that an actual work accident caused.  Employers are also required to pay TTD benefits for pre-surgical testing/treatment if the employee is off work.

DiscussionPursuant to Neb. Rev. Stat. 48-120, an employer is liable for all reasonable medical, surgical, and hospital services, including plastic surgery or reconstructive surgery, but not cosmetic surgery, when the injury has caused disfigurement, appliances, supplies, prosthetic devices, and medicines and as when needed.  These 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.  Whether medical treatment is reasonable or necessary to treat an injury is a question of fact.  When medical treatment is reasonable or necessary to treat an injury, employers are also required to pay TTD benefits when the employee is off work.

Whether pre-surgical testing and/or treatment is necessary prior to surgery, (which may be due to a personal health condition), and is a required liability of an employer, is a gray area that is determined on a case-by-case basis.  In Rodriguez v. Hirschbach Motor Lines, 707 N.W.2d 232 (2005) an employee attempted to have his workers compensation insurance cover a requested gastric bypass surgery prior to obtaining the necessary surgery to correct his work injury.  He requested it under the guise that his obesity prevented him from being able to receive the surgery for his work injury.  The trial judge concluded that there was insufficient evidence in the record to prove that gastric bypass was medically necessary.  On appeal, the Supreme Court of Nebraska affirmed the trial judge’s ruling, stating that the gastric bypass surgery would not directly relieve the effects of the work injury, but rather, simply make the employee more amenable to more surgery, that in turn, might better his condition.

The Supreme Court of Nebraska has recognized the generally accepted principle that in some circumstances, a medically necessary weight loss program may be compensable.  State ex. rel. Miller v. Indus. Comm, 71 Ohio St.3d 229, 643 E.2d 113 (1994); Hopp v. Grist Mill, 499 N.W.2d 812 (Minn. 1993) (finding sufficient evidence to support trial court’s determination that gastric bypass surgery was necessary to relieve effects of claimant’s compensable injury).

Practice TipEmployers should be mindful that although the courts in Nebraska tend to favor employees, the Court is still mindful of their limitations within the Nebraska Workers’ Compensation Act.  If an employee attempts to have pre-surgery testing/treatment covered by workers compensation insurance, it is wise to do an analysis on the requested testing/treatment to determine if that testing/treatment will relieve a symptom that was actually caused by a work-related injury.  If not, a denial is generally the right position to take unless the evidence suggests that there is no other way, but for the testing/treatment, to relieve the employees’ work injury symptoms.

Since TTD benefits are owed if the employee is off work for the pre-surgical testing/treatment, it is often easiest to stress to the physician the value to the employer of the employee returning to work as soon as possible, even if that means accommodating work restrictions.