A Developing Trend in the Nebraska Workers’ Compensation Courts – For an Independent Medical Examiner to be Appointed in a Case, a Dispute Between Two Doctors Must be Present.

In May of this year, the Nebraska Workers’ Compensation Court in Maslonka v. Falewitch Construction Services Inc. DOC: 211 NO. 0602 (2013), held that there must be a dispute between two doctors on record before a party can request that an independent medical examiner be appointed. In Maslonka, the plaintiff requested the appointment of an independent medical examiner to resolve the following disputed medical issue: “Mr. Maslonka is still suffering from injuries sustained on 01-17-11, has not reached maximum medical improvement, and requires future medical care.” In response to this, the defendant objected to the appointment of the independent medical examiner to the administrator section of the Workers’ Compensation Court. However, that section determined that it was appropriate to appoint an independent medical examiner. Thus, the defendant filed its objection to the appointment with Judge Daniel R. Fridrich in the Nebraska Workers’ Compensation Court.

On review, Judge Fridrich determined that the issue was governed by Neb. Rev. Stat. §48-134.01 and Rule 63 of the Nebraska Workers’ Compensation Court. Rule 63 reads, “once a dispute regarding medical, surgical or hospital services, furnished or to be furnished under the Nebraska Workers’ Compensation Act, has arisen any parties … may submit the dispute for a medical finding by independent medical examiner.”

At the hearing, the defendant argued that the appointment of an independent medical examiner was unwarranted because there was no dispute between two physicians. The defendant also argued that there must be more than a dispute that the plaintiff has with his doctor, or with his care and treatment. Essentially, the defendant cogently argued that there must be a dispute between two doctors for a third doctor to resolve. The plaintiff argued that a mere dispute is all that was needed and pointed to the direct language of the statute. The plaintiff correctly identified that nowhere in the statute did it state there must be a dispute between two doctors before an independent medical examiner was appointed. Thus, the court was required to interpret Neb. Rev. Stat. §48-134.01 in an effort to give this statute a reasonable construction which best achieved its purposes.

In order to do this, Judge Fridrich looked at the legislative history of LB 757, which was introduced by Senator David Landis. In the record, Senator Landis stated, “the independent medical examiner is meant to put an end to the dueling doctor situation that occurs in practically every case that is litigated because that is what people contest for the most part. It gives us hopefully an independent medical examiner who is obligated to give us medical advice rather than represent to the strategic choices that would be the most extreme by the worker and the employer which is what happens now.” Thus, based on this language, the court determined that the purpose of the independent medical examiner section was to resolve a dispute between a doctor on the side of the injured worker and a doctor on the side of the employer. Ultimately, the defendant’s objection was sustained because the court found that there was no evidence that there was any dispute between two doctors.

This case illustrates that the Workers’ Compensation Court is not in favor of allowing the plaintiff to shop for a favorable opinion if he or she disagrees with the doctor’s opinion. Simple disagreements often arise between the plaintiff and the defendant regarding the medical treatment or care of the plaintiff. It is important for employers to recognize that a plaintiff needs more than a simple disagreement with his or her doctor to request an independent medical examination. It is also noteworthy to point out that not only has Judge Fridrich ruled in this manner, but he has also been joined by Judge Stein, which is clear evidence that a trend is starting to emerge in the Nebraska Workers’ Compensation Court.

Should you have any questions on the appointment of an independent medical examiner, please feel free to contact Robert B. Seybert or any of the Workers’ Compensation attorneys (listed below) at Baylor Evnen at 402-475-1074, or e-mail us at https://baylorevnen.com.

• Timothy E. Clarke
• David A. Dudley
• Darla S. Ideus
• Dallas D. Jones
• Jenny L. Panko
• Jill Gradwohl Schroeder
• Brenda S. Spilker
• Caroline M. Westerhold