§ 48-120 — Medical, surgical, and hospital services; employer's liability; fee schedule; physician, right to select; procedures; powers and duties; court; powers; dispute resolution procedure; managed care plan

Nebraska § 48-120

• Jurisdiction: Nebraska
• Ch. 48: Labor

Text

(1)(a) The 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 as and when needed, 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, and includes damage to or destruction of artificial members, dental appliances, teeth, hearing instruments, and eyeglasses, but, in the case of dental appliances, hearing instruments, or eyeglasses, only if such damage or destruction resulted from an accident which also caused personal injury entitling the employee to compensation therefor for disability or treatment, subject to the approval of and regulation by the Nebraska Workers' Compensation Court, not to exceed the regular charge made for such service in similar cases.
(b) Except as provided in section 48-120.04 , the compensation court shall establish schedules of fees for such services. The compensation court shall review such schedules at least biennially and adopt appropriate changes when necessary. The compensation court may contract with any person, firm, corporation, organization, or government agency to secure adequate data to establish such fees. The compensation court shall publish and furnish to the public the fee schedules established pursuant to this subdivision and section 48-120.04 . The compensation court may establish and charge a fee to recover the cost of published fee schedules.
(c) Reimbursement for inpatient hospital services provided by hospitals located in or within fifteen miles of a Nebraska city of the metropolitan class or primary class and by other hospitals with fifty-one or more licensed beds shall be according to the Diagnostic Related Group inpatient hospital fee schedule or the trauma services inpatient hospital fee schedule established in section 48-120.04 .
(d) A workers' compensation insurer, risk management pool, self-insured employer, or managed care plan certified pursuant to section 48-120.02 may contract with a provider or provider network for medical, surgical, or hospital services. Such contract may establish fees for services different than the fee schedules established under subdivision (1)(b) of this section or established under section 48-120.04 . Such contract shall be in writing and mutually agreed upon prior to the date services are provided.
(e) The provider or supplier of such services shall not collect or attempt to collect from any employer, insurer, government, or injured employee or dependent or the estate of any injured or deceased employee any amount in excess of (i) the fee established by the compensation court for any such service, (ii) the fee established under section 48-120.04 , or (iii) the fee contracted under subdivision (1)(d) of this section, including any finance charge or late penalty.
(2)(a) The employee has the right to select a physician who has maintained the employee's medical records prior to an injury and has a documented history of treatment with the employee prior to an injury or a physician who has maintained the medical records of an immediate family member of the employee prior to an injury and has a documented history of treatment with an immediate family member of the employee prior to an injury. For purposes of this subsection, immediate family member means the employee's spouse, children, parents, stepchildren, and stepparents. The employer shall notify the employee following an injury of such right of selection in a form and manner and within a timeframe established by the compensation court. If the employer fails to notify the employee of such right of selection or fails to notify the employee of such right of selection in a form and manner and within a timeframe established by the compensation court, then the employee has the right to select a physician. If the employee fails to exercise such right of selection in a form and manner and within a timeframe established by the compensation court following notice by the employer pursuant to this subsection, then the employer has the right to select the physician. If selection of the initial physician is made by the employee or employer pursuant to this subsection following notice by the employer pursuant to this subsection, the employee or employer shall not change the initial selection of physician made pursuant to this subsection unless such change is agreed to by the employee and employer or is ordered by the compensation court pursuant to subsection (6) of this section. If compensability is denied by the workers' compensation insurer, risk management pool, or self-insured employer, (i) the employee has the right to select a physician and shall not be made to enter a managed care plan and (ii) the employer is liable for medical, surgical, and hospital services subsequently found to be compensable. If the employer has exercised the right to select a physician pursuant to this subsection and if the compensation court subsequently orders reasonable medical services previously refused to be furnished to the employee by the physician selected by the employer, the compensation court shall allow the employee to select another physician to furnish further medical services. If the employee selects a physician located in a community not the home or place of work of the employee and a physician is available in the local community or in a closer community, no travel expenses shall be required to be paid by the employer or his or her workers' compensation insurer.
(b) In cases of injury requiring dismemberment or injuries involving major surgical operation, the employee may designate to his or her employer the physician or surgeon to perform the operation.
(c) If the injured employee unreasonably refuses or neglects to avail himself or herself of medical or surgical treatment furnished by the employer, except as herein and otherwise provided, the employer is not liable for an aggravation of such injury due to such refusal and neglect and the compensation court or judge thereof may suspend, reduce, or limit the compensation otherwise payable under the Nebraska Workers' Compensation Act.
(d) If, due to the nature of the injury or its occurrence away from the employer's place of business, the employee or the employer is unable to select a physician using the procedures provided by this subsection, the selection requirements of this subsection shall not apply as long as the inability to make a selection persists.
(e) The physician selected may arrange for any consultation, referral, or extraordinary or other specialized medical services as the nature of the injury requires.
(f) The employer is not responsible for medical services furnished or ordered by any physician or other person selected by the employee in disregard of this section. Except as otherwise provided by the Nebraska Workers' Compensation Act, the employer is not liable for medical, surgical, or hospital services or medicines if the employee refuses to allow them to be furnished by the employer.
(3) No claim for such medical treatment is valid and enforceable unless, within fourteen days following the first treatment, the physician giving such treatment furnishes the employer a report of such injury and treatment on a form prescribed by the compensation court. The compensation court may excuse the failure to furnish such report within fourteen days when it finds it to be in the interest of justice to do so.
(4) All physicians and other providers of medical services attending injured employees shall comply with all the rules and regulations adopted and promulgated by the compensation court and shall make such reports as may be required by it at any time and at such times as required by it upon the condition or treatment of any injured employee or upon any other matters concerning cases in which they are employed. All medical and hospital information relevant to the particular injury shall, on demand, be made available to the employer, the employee, the workers' compensation insurer, and the compensation court. The party requesting such medical and hospital information shall pay the cost thereof. No such relevant information developed in connection with treatment or examination for which compensation is sought shall be considered a privileged communication for purposes of a workers' compensation claim. When a physician or other provider of medical services willfully fails to make any report required of him or her under this section, the compensation court may order the forfeiture of his or her right to all or part of payment due for services rendered in connection with the particular case.
(5) Whenever the compensation court deems it necessary, in order to assist it in resolving any issue of medical fact or opinion, it shall cause the employee to be examined by a physician or physicians selected by the compensation court and obtain from such physician or physicians a report upon the condition or matter which is the subject of inquiry. The compensation court may charge the cost of such examination to the workers' compensation insurer. The cost of such examination shall include the payment to the employee of all necessary and reasonable expenses incident to such examination, such as transportation and loss of wages.
(6) The compensation court shall have the authority to determine the necessity, character, and sufficiency of any medical services furnished or to be furnished and shall have authority to order a change of physician, hospital, rehabilitation facility, or other medical services when it deems such change is desirable or necessary. Any dispute regarding medical, surgical, or hospital services furnished or to be furnished under this section may be submitted by the parties, the supplier of such service, or the compensation court on its own motion for informal dispute resolution by a staff member of the compensation court or an outside mediator pursuant to section 48-168 . In addition, any party or the compensation court on its own motion may submit such a dispute for a medical finding by an independent medical examiner pursuant to section 48-134.01 . Issues submitted for informal dispute resolution or for a medical finding by an independent medical examiner may include, but are not limited to, the reasonableness and necessity of any medical treatment previously provided or to be provided to the injured employee. The compensation court may adopt and promulgate rules and regulations regarding informal dispute resolution or the submission of disputes to an independent medical examiner that are considered necessary to effectuate the purposes of this section.
(7) For the purpose of this section, physician has the same meaning as in section 48-151 .
(8) The compensation court shall order the employer to make payment directly to the supplier of any services provided for in this section or reimbursement to anyone who has made any payment to the supplier for services provided in this section. No such supplier or payor may be made or become a party to any action before the compensation court.
(9) Notwithstanding any other provision of this section, a workers' compensation insurer, risk management pool, or self-insured employer may contract for medical, surgical, hospital, and rehabilitation services to be provided through a managed care plan certified pursuant to section 48-120.02 . Once liability for medical, surgical, and hospital services has been accepted or determined, the employer may require that employees subject to the contract receive medical, surgical, and hospital services in the manner prescribed in the contract, except that an employee may receive services from a physician selected by the employee pursuant to subsection (2) of this section if the physician so selected agrees to refer the employee to the managed care plan for any other treatment that the employee may require and if the physician so selected agrees to comply with all the rules, terms, and conditions of the managed care plan. If compensability is denied by the workers' compensation insurer, risk management pool, or self-insured employer, the employee may leave the managed care plan and the employer is liable for medical, surgical, and hospital services previously provided. The workers' compensation insurer, risk management pool, or self-insured employer shall give notice to employees subject to the contract of eligible service providers and such other information regarding the contract and manner of receiving medical, surgical, and hospital services under the managed care plan as the compensation court may prescribe.

Legislative History

Source: Laws 1913, c. 198, § 20, p. 585; R.S.1913, § 3661; Laws 1917, c. 85, § 6, p. 202; Laws 1919, c. 91, § 1, p. 228; Laws 1921, c. 122, § 1, p. 520; C.S.1922, § 3043; C.S.1929, § 48-120; Laws 1935, c. 57, § 19, p. 197; C.S.Supp.,1941, § 48-120; R.S.1943, § 48-120; Laws 1965, c. 278, § 1, p. 799; Laws 1969, c. 388, § 2, p. 1359; Laws 1969, c. 392, § 1, p. 1376; Laws 1975, LB 127, § 1; Laws 1978, LB 529, § 2; Laws 1979, LB 215, § 1; Laws 1986, LB 811, § 38; Laws 1987, LB 187, § 1; Laws 1992, LB 360, § 13; Laws 1993, LB 757, § 2; Laws 1998, LB 1010, § 2; Laws 1999, LB 216, § 3; Laws 2005, LB 238, § 3; Laws 2007, LB588, § 1; Laws 2009, LB195, § 51; Laws 2011, LB152, § 1; Laws 2015, LB480, § 2. Annotations: 1. Liability 2. Travel expense 3. Physician's fee 4. Miscellaneous 1. Liability An employer may contest any future workers' compensation claims for medical treatment on the basis that such treatment is unrelated to the original work-related injury or occupational disease, or that the treatment is unnecessary or inapplicable, only after a Form 50 physician has been appointed and prescribed treatment. Rogers v. Jack's Supper Club, 308 Neb. 107, 953 N.W.2d 9 (2021). Where there was sufficient evidence to support a factual finding that knee surgery was not required by the prior work-related injury, the Workers' Compensation Court did not err in denying compensation for the surgery under an award of future medical treatment. Pearson v. Archer-Daniels-Midland Milling Co., 285 Neb. 568, 828 N.W.2d 154 (2013). If an employer has sufficient knowledge of an injury to an employee to be aware that medical treatment is necessary, it has the affirmative and continuing duty to supply medical treatment that is prompt, in compliance with the statutory prescription on choice of doctors, and adequate; if the employer fails to do so, the employee may make suitable independent arrangements at the employer's expense. Clark v. Alegent Health Neb., 285 Neb. 60, 825 N.W.2d 195 (2013). If compensability is denied by the employer, the employee has the right to select a physician and the employer is liable for medical services subsequently found to be compensable. Clark v. Alegent Health Neb., 285 Neb. 60, 825 N.W.2d 195 (2013). Once it has been determined that the need for future medical care is probable, the employer is liable for any future care shown to be reasonably necessary under this section. Sellers v. Reefer Systems, 283 Neb. 760, 811 N.W.2d 293 (2012). An employee's injury which occurs en route to a required medical appointment that is related to a compensable injury is also compensable, as long as the chosen route is reasonable and practical. Straub v. City of Scottsbluff, 280 Neb. 163, 784 N.W.2d 886 (2010). Before an order for future medical benefits may be entered pursuant to this section, there should be a stipulation of the parties or evidence in the record to support a determination that future medical treatment will be reasonably necessary to relieve the injured worker from the effects of the work-related injury or occupational disease. Foote v. O'Neill Packing, 262 Neb. 467, 632 N.W.2d 313 (2001). The history of this section clearly manifests a legislative intent to make medical benefits available to a disabled worker without regard to any time limitation measured from the last date of payment, when an award is entered, so long as further medical treatment is reasonably necessary to relieve the worker from the effects of the work-related injury or occupational disease. Foote v. O'Neill Packing, 262 Neb. 467, 632 N.W.2d 313 (2001). The Workers' Compensation Court may allow an employee to recover the reasonable value of necessary home nursing care furnished by the employee's spouse. Kidd v. Winchell's Donut House, 237 Neb. 176, 465 N.W.2d 442 (1991). While a disabled employee may not be required to undergo surgery, an unreasonable refusal to submit to surgery, taking into account the risk involved to the employee, the nature of the surgery, and the likelihood of improving the condition, may result in the forfeiture or reduction of compensation benefits, as may be appropriate. Yarns v. Leon Plastics, Inc., 237 Neb. 132, 464 N.W.2d 801 (1991). The cost of a penile implant is a compensable medical procedure under this section. Canas v. Maryland Cas. Co., 236 Neb. 164, 459 N.W.2d 533 (1990). Generally, pursuant to this section, an employee may be reimbursed for nursing care in the employee's home or at a nursing home, when such care is necessitated by a work-related injury, so long as the cost of the care is fair and reasonable. Bituminous Casualty Corp. v. Deyle, 234 Neb. 537, 451 N.W.2d 910 (1990). An employer is liable only for those reasonable medical expenses incurred as a result of a compensable accident. Expenses not shown by the evidence to have been incurred as a result of a compensable accident are not allowable as charges against the employer. Hare v. Watts Trucking Service, 220 Neb. 403, 370 N.W.2d 143 (1985). Even though there is no present prospect for improvement of a condition of total and permanent disability or of further rehabilitation, the employer continues to be responsible under this section for further nursing care and therapy. S. & S. LP Gas Co. v. Ramsey, 201 Neb. 751, 272 N.W.2d 47 (1978). An employer is liable to an injured employee for reasonable medical and hospital services and medicines which are necessary to relieve or cure injury suffered by the employee. Spiker v. John Day Co., 201 Neb. 503, 270 N.W.2d 300 (1978). An injured employee may recover the reasonable value of necessary nursing care furnished to him by his wife while he was cared for at home. Spiker v. John Day Co., 201 Neb. 503, 270 N.W.2d 300 (1978); overruling Claus v. DeVere, 120 Neb. 812, 235 N.W. 450 (1931). The liability of an employer to an injured employee for reasonable medical and hospital services and medicine which are necessary as a result of injury, is not limited to only those situations in which the employee may be cured or his disability reduced by further treatment. Spiker v. John Day Co., 201 Neb. 503, 270 N.W.2d 300 (1978). When undisputed evidence shows plaintiff will require medicines and medical and hospital services in the future as a result of his injuries they shall, subject to approval by the Workmen's Compensation Court, be supplied by defendant. Shotwell v. Industrial Builders, Inc., 187 Neb. 320, 190 N.W.2d 624 (1971). In absence of showing of unreasonableness, hospital and nurse expense incurred will be allowed. Gourley v. City of Grand Island, 168 Neb. 538, 96 N.W.2d 309 (1959). Where further medical services would not improve condition, liability for same ceases. Peek v. Ayres Auto Supply, 155 Neb. 233, 51 N.W.2d 387 (1952). Medical services necessary in treating injury to eye were recoverable. Gruber v. Stickelman, 149 Neb. 627, 31 N.W.2d 753 (1948). Where evidence shows that further medical, hospital, and surgical services would not definitely improve condition of an injured employee, employer's liability to furnish such services ceases. Paulson v. Martin-Nebraska Co., 147 Neb. 1012, 26 N.W.2d 11 (1947). Employer is liable for reasonable medical and hospital services when award provides for further medical, surgical, and hospital care. Gilmore v. State, 146 Neb. 647, 20 N.W.2d 918 (1945). Employer is liable for reasonable hospital and medical services and medicines, when needed, and approved by compensation commissioner. Summers v. Railway Express Agency, 134 Neb. 237, 278 N.W. 476 (1938). Where evidence shows that further medical, surgical, and hospital services would not improve condition of injured employee, employer's liability for such services ceases. Wilson v. Brown-McDonald Co., 134 Neb. 211, 278 N.W. 254 (1938). Employer providing medical attention during three weeks subsequent to injury is not liable for medical expenses after blood poisoning developed. Epsten v. Hancock-Epsten Co., 101 Neb. 442, 163 N.W. 767 (1917). The general rule under this section is that, should a court determine a medical treatment for a condition unrelated to a work-related injury is medically reasonable and necessary to treat the underlying work-related injury, the medical treatment is required by the nature of the injury and is compensable. Carr v. Ganz, 26 Neb. App. 14, 916 N.W.2d 437 (2018). Under subsection (1)(a) of this section, 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. Yost v. Davita, Inc., 23 Neb. App. 482, 873 N.W.2d 435 (2015). Before an order for future medical benefits may be entered pursuant to subsection (1)(a) of this section, there must be explicit evidence that future medical treatment is reasonably necessary to relieve the injured worker from the effects of the work-related injury. Adams v. Cargill Meat Solutions, 17 Neb. App. 708, 774 N.W.2d 761 (2009). The trial judge did not err in ordering the employer to pay for medication, because the judge's determination that the medication was necessary to treat both the work-related side effects of pain medication and the unrelated condition of sleep apnea was not clearly wrong. Zitterkopf v. Aulick Indus., 16 Neb. App. 829, 753 N.W.2d 370 (2008). Medical expenses incurred before the date of an employee's accident in a repetitive trauma case may be compensable if they are reasonably necessary and related to the compensable injury. Tomlin v. Densberger Drywall, 14 Neb. App. 288, 706 N.W.2d 595 (2005). Making a home handicapped-accessible was an "appliance" and "supply" for which the employer of injured employee was liable. Koterzina v. Copple Chevrolet, 1 Neb. App. 1000, 510 N.W.2d 467 (1993). 2. Travel expense Because this section makes the employer liable for reasonable medical and hospital services, the employer must also pay the cost of travel incident to and reasonably necessary for obtaining these services. Armstrong v. State, 290 Neb. 205, 859 N.W.2d 541 (2015). An injured employee was not entitled to payment for travel expenses to Massachusetts where the trial court properly found that a physician was available in the local community or in a closer community than Massachusetts. Savage v. Hensel Phelps Constr. Co., 208 Neb. 676, 305 N.W.2d 375 (1981). Travel expenses to obtain medical treatment may be allowed. Pavel v. Hughes Brothers, 167 Neb. 727, 94 N.W.2d 492 (1959). Injured workman was entitled to recover travel expense incurred to obtain medical treatment. Pittenger v. Safeway Stores, Inc., 166 Neb. 858, 91 N.W.2d 31 (1958). Employer may be held liable for medical and hospital services, including cost of travel reasonably necessary for obtaining such services. Newberry v. Youngs, 163 Neb. 397, 80 N.W.2d 165 (1956). 3. Physician's fee Workmen's compensation court may allow medical expenses in accordance with medical fee schedule approved by the court. Schoenrock v. School Dist. of Nebraska City, 179 Neb. 621, 139 N.W.2d 547 (1966). Employer is liable for reasonable medical and hospital expense and medicines as and when needed. Brewer v. Hilberg, 173 Neb. 863, 115 N.W.2d 437 (1962). Physician is entitled to fee for making examination of employee after hearing before compensation commissioner and before trial in district court, to determine if surgical operation on employee as demanded by employer would be reasonably safe and beneficial. Solomon v. A. W. Farney, Inc., 130 Neb. 484, 265 N.W. 724 (1936). Family physician, chosen by employee to aid operating surgeon selected by employer, may recover for such services and post-operative attention to patient from the employer. Wingate v. Evans Model Laundry, 123 Neb. 844, 244 N.W. 635 (1932). 4. Miscellaneous The term "payor" as used in subsection (8) of this section is limited to third-party payors, such as health insurance carriers. VanKirk v. Central Community College, 285 Neb. 231, 826 N.W.2d 277 (2013). Upon receipt of payment from an employer, a supplier or provider of services becomes obligated to reimburse an employee any amounts he or she has previously paid. VanKirk v. Central Community College, 285 Neb. 231, 826 N.W.2d 277 (2013). An employer is not responsible for medical services furnished or ordered by any physician or other person selected by an injured employee in disregard of subdivision (2)(a) of this section. Clark v. Alegent Health Neb., 285 Neb. 60, 825 N.W.2d 195 (2013). Under subdivision (2)(a) of this section, an employee has the right to select a physician who has maintained the employee's medical records prior to an injury and has a documented history of treatment with the employee prior to the injury. The employer shall notify the employee following an injury of such right of selection in a form and manner within the timeframe established by the compensation court. Clark v. Alegent Health Neb., 285 Neb. 60, 825 N.W.2d 195 (2013). Under subsection (b) of this section, the fee schedule is applicable to payments made by third-party payors. Pearson v. Archer-Daniels-Midland Milling Co., 282 Neb. 400, 803 N.W.2d 489 (2011). This section, while not affording the Workers' Compensation Court with jurisdiction to resolve every disagreement that may arise with respect to the rights and obligations of a third-party insurer, clearly provides that the Workers' Compensation Court shall order an employer to directly reimburse medical care providers and medical insurers for the reasonable medical, surgical, and hospital services supplied to a workers' compensation claimant pursuant to this section. Kimminau v. Uribe Refuse Serv., 270 Neb. 682, 707 N.W.2d 229 (2005). This section does not require the court to have a physician examine plaintiff when medical evidence on cause is lacking. The statute applies only to issues of medical fact or opinion in cases where liability has been established and issues arise over such things as refusal or necessity of medical treatment. The statute grants the court discretionary power. Coco v. Austin Co., 212 Neb. 95, 321 N.W.2d 448 (1982). If psychiatric treatment is prescribed, refusal of the treatment may be deemed unreasonable in view of the absence of any physical suffering in the treatment. Davis v. Western Electric, 210 Neb. 771, 317 N.W.2d 68 (1982). The Nebraska Workmen's Compensation Court has continuing authority to determine the necessity, character, and sufficiency of medical services furnished or to be furnished and to order a change therein when it deems such change is desirable or necessary. S. & S. LP Gas Co. v. Ramsey, 201 Neb. 751, 272 N.W.2d 47 (1978). Ordinarily, an employee's right to recover the cost of medical and hospital services and medicines depends upon his having paid for services or incurred a liability to pay for them. Spiker v. John Day Co., 201 Neb. 503, 270 N.W.2d 300 (1978). Exclusive original jurisdiction to determine claims under workmen's compensation law is in compensation commissioner. Zurich General Accident & Liability Ins. Co. v. Walker, 128 Neb. 327, 258 N.W. 550 (1935). Plaintiff in action against noninsuring employer for personal injuries has not waived right of action, or brought himself within Workmen's Compensation Act, by accepting payment of hospital bill. Brown v. York Water Co., 104 Neb. 516, 177 N.W. 833 (1920). Employer is not liable for medical services procured by employee, where latter unreasonably refuses services of physician procured by employer. Radil v. Morris & Co., 103 Neb. 84, 170 N.W. 363 (1919). The meaning of subsection (4) of this section is plain and unambiguous. When an injured worker is seeking compensation for an injury from his employer and the employer seeks relevant information from the injured worker's treating physician regarding that injury, that information is not privileged. Scott v. Drivers Mgmt., Inc., 14 Neb. App. 630, 714 N.W.2d 23 (2006). Under certain circumstances, an injured worker should be reimbursed for the relocation costs when the relocation is undertaken upon a doctor's recommendation due to a work injury. Relocation expenses, pursuant to a doctor's recommendations, in order to lessen necessary medical treatment, additional injury, and pain, are within a liberal definition of "medical services" under this section. Hoffart v. Fleming Cos., 10 Neb. App. 524, 634 N.W.2d 37 (2001). A health care insurer cannot be a party to the underlying workers' compensation case which, if successful, results in the reimbursement of the health care insurer, nor can it be later joined after a successful result. Kaiman v. Mercy Midlands Medical & Dental Plan, 1 Neb. App. 148, 491 N.W.2d 356 (1992).