NWCDN Members regularly post articles and summary judgements in workers’ compensations law in your state.
Select a state from the dropdown menu below to scroll through the state specific archives for updates and opinions on various workers’ compensation laws in your state.
Contact information for NWCDN members is also located on the state specific links in the event you have additional questions or your company is seeking a workers’ compensation lawyer in your state.
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Maximum Weekly Income Benefit: Effective 01/01/2023, the maximum weekly income benefit under the Nebraska Workers' Compensation Act is $1,029.00.
Mileage Reimbursement Rate: Effective 01/01/2023, the mileage reimbursement rate is 65.5 cents per mile.
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When it comes to setting reserves for claims, the most common expenses that come to mind are doctor’s visits, physical therapy, the potential for surgery, and indemnity benefits. Most of the time, significant consideration isn’t given to an expense like mileage. Frankly, mileage expenses rarely exceed five figures. However, mileage is unique in that almost every single compensable claim involves an employee needing to drive to seek medical treatment. Stated another way, mileage is arguably one of the few expenses that occurs in every case.
It should come as no surprise that there are very few cases in the Nebraska Workers’ Compensation Court where mileage is the sole dispute (though admittedly, it does occur once or twice a year). Likewise, mileage disputes aren’t usually hotly contested. The dispute is usually whether the underlying treatment is causally related to the alleged accident. However, several recent decisions from the compensation court serve as good reminders that mileage isn’t simply owed because the underlying treatment is compensable.
Before discussing the cases, it’s important to remember the overarching law regarding mileage. Mileage has routinely been considered a “medical expense” reimbursable pursuant to Neb. Rev. Stat. § 48-120. Specifically, when the employer is liable for reasonable medical services, it must also pay the cost of travel incident to and reasonably necessary for obtaining these services. Armstrong v. State, 290 Neb. 205, 218, 859 N.W.2d 541, 552 (2015). Before mileage is due, the burden is on the employee to prove that he or she had a compensable accident and injury, and that the treatment he or she is driving to is causally related to the same. Id. Assuming this burden can be met, most employees will demand mileage by providing the dates of medical treatment and the number of miles driven to and from that treatment. Once the employee provides notice that mileage is due, assuming there is no reasonable basis for the employer to deny the same, the employer must issue payment for the mileage within 30 days. There are very specific mileage rates depending on the date of the treatment. These rates are determined by the compensation court and can be found on its’ website here. With that general framework in mind, we turn to some of the recent compensation court decisions regarding mileage.
Pursuant to Neb. Rev. Stat. § 48-120(2)(a), an employee is not entitled to mileage if he or she selects a physician located in a different community than where the employee lives or works. This provision only applies if a physician is available in the employee’s local community or in a closer community than where the selected provider is located. By way of example, suppose that an employee living and working in Grand Island is injured. Pursuant to the Form 50 rules, the employee selects his doctor in Kearney to treat his injuries. While the law clearly allows the employee to make that selection, that decision also means the employee may not be entitled to mileage since there are many qualified physicians available in the Grand Island and Hastings areas, both which are in a “closer community” than Kearney. See Ripp v. Senior Lifestyle Holding Company, 2022 WL 2708076 (Neb. Work. Comp. Ct. July 2022)(J. Martin); Duarte v. Cargill Meat Solutions Corp., 2019 WL 5294637 (Neb. Work .Comp. Ct. Oct 2019)(J. Block).
While the judges are relatively consistent in applying the above approach, there is some disagreement as to whether this rule applies when the employee selects a surgeon outside of his or her local community. In 2016, Judge Hoffert held that an employee’s right to select his or her surgeon essentially trumps the provision regarding mileage not being compensable if there is a surgeon available in the immediate community. In Wilson v. JBS Holdings, 2016 WL 6142878 (Neb. Work. Comp. Ct. Oct. 2016), Judge Hoffert ordered an employer to pay an employee’s mileage from Grand Island to Omaha as it was reasonable for the employee to select an Omaha based surgeon despite Hastings and Grand Island having several surgeons available. However, how far this rule will stretch is a bit of an unanswered question. While selecting a surgeon within Nebraska seems to be more reasonable, disputes start to become more significant when an employee chooses a surgeon in a different state. See Heisner v. The Nebraska Medical Center, 2022 WL 18216313 (Neb. Work. Comp. Ct., Dec 2022)(J. Coe)(approving the parties proposed resolution regarding compromised mileage when the employee traveled to Chicago for the surgeon of her choosing).
Along the same lines, be mindful of a medical provider that offers treatment in multiple locations. For example, a pain management provider may have offices in Omaha and Lincoln. Absent a showing by the employee that the medical services were unavailable at the location closest to their home, the compensation court may disallow an increased mileage demand if the employee treats at the location farther away from his or her home. Morales v. JBS USA, LLC, 2022 WL 274865 (Neb. Work. Comp. Ct., Jan. 2022)(J. Martin).
Another important consideration when it comes to mileage is whether the employer can confirm that the reason for the mileage is related to the accident and injury. More often than not, an employee can prove the mileage is related by simply producing the corresponding treatment notes. However, it frequently happens that an employee fails to produce any evidence explaining the mileage. Take for example one of Judge Martin’s decisions in 2019. The employee demanded reimbursement of 3,440 miles to see her doctor. However, the treatment notes from the doctor were for entirely different dates of service. In light of the same, Judge Martin declined to award any mileage.
As a final reminder, because mileage is considered a “medical expense,” it’s important to ensure that mileage is paid within 30 days’ notice of the obligation to pay unless there is a reasonable basis to deny the same. If there is no basis to deny the mileage, an employee may request an attorney’s fee for the failure to pay within 30 days. Neb. Rev. Stat. § 48-125. There are many reasons that mileage may not be compensable, including those discussed above. This, of course, is not an exhaustive list of the reasons that mileage may be fairly disputed, but instead is only a small list of reasons that may shield an employer from potential penalties.
If you have questions about a case involving mileage, 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.
Claimant was involved in a compensable work accident and was placed on total disability. He filed a Petition to add the left shoulder as a compensable body part, while the Employer filed a Termination Petition to end total disability and to address resolution of injuries. Right before the Hearing, the Claimant conceded to end total disability, and thus the Employer communicated to the Workers’ Compensation Fund a request for it to waive reimbursement of total disability, while noting the Hearing was still going forward on other issues. The Fund agreed.
The morning of the Hearing, the Claimant requested a continuance of the resolution issue. The Board granted the continuance, and the Hearing went forward solely on the left shoulder issue. A few days later, the Board issued the Order on the continuance, which prompted the Fund to renege on its waiver of reimbursement; the Fund argued the continuance allowed it to bring in evidence to justify reimbursement and began scheduling a deposition. The Employer filed a Motion to Enforce the settlement/waiver, which was presented at a Legal Hearing, with the Board taking the matter under advisement while it considered whether to grant or deny the motion.
The Board subsequently issued a Decision on Claimant’s Petition, finding the left shoulder was never injured in the work accident. It accepted the testimony of Dr. Matz, who discussed the lack of shoulder complaints in the early records, the lack of acute MRI findings, and other data points arguing against a specific shoulder injury. As such, claimant’s Petition was denied.
A week later, the Board issued its ruling on the Motion to Enforce. The Order confirmed there was no indication of “deception or sharp practice on the part of Employer’s counsel,” and that the Employer was fully up front with the Fund about what it was seeking and what it intended to do; the continuance was strongly opposed by the Employer, and thus there was no foul play. The simple fact was the Fund had agreed to waive reimbursement, and the continuance was solely on the issue of resolution, and not on the issue of termination of total disability. Therefore, the Board ordered the Fund to abide by its waiver, resulting in no reimbursement from the Employer.
Should you have any questions regarding this Decision, please contact Nick Bittner, or any other Attorney in our Workers’ Compensation Department.
Gary Steadman v. Evergreen Waste Services, IAB No. 1519915, Decision on Petition to Determine Additional Compensation Due, dated Nov. 21, 2022, Order on Motion to Enforce, dated Nov. 28, 2022
Medical Marijuana:
Recent Pennsylvania Commonwealth Court Decisions.
Fegley, as Executrix of Estate of Paul Sheetz v. WCAB(Firestone Tire & Rubber), ___ A.3d ___ (Pa.Cmwlth. 2023) and Edward Appel v. WCAB (GWC Warranty Corporation), ___ A.3d ___ (Pa.Cmwlth. 2023).
In Fegley the Commonwealth Court found that Section 2102 of Pennsylvania’s Medical Marijuana Act (“MMA”) which provides that, “[n]othing in this act shall be construed to require an insurer or health plan, whether paid for by Commonwealth funds or private funds, to provide coverage for medical marijuana.” did not prohibit reimbursement of out-of-pocket payments by claimants for medical marijuana. It held that the Pennsylvania Worker’s Compensation Act mandates workers’ compensation carriers to reimburse claimants for out-of-pocket costs of medical treatments that have been found to be reasonable and necessary for work-related injuries and this included medical marijuana.
The court also addressed Section 2103 of the MMA which indicates that nothing in the MMA “shall require an employer to commit any act that would put the employer or any person acting on its behalf in violation of Federal law.” In addressing Section 841(a) of the Federal Drug Act which provides that it is “unlawful for any person knowingly of intentionally … to manufacture, distribute, or dispense … a controlled substance.” 21 U.S.C. § 841(a),the court held that reimbursement of out-of-pocket expenses for medical marijuana by a workers’ compensation carrier was not a violation of federal law as reimbursement is not the manufacturing, distribution, or dispensing of medical marijuana.
Following its Opinion in Fegley, the Commonwealth Court in Appel held that while the MMA did not require an employer/carrier to provide coverage for medical marijuana, coverage is “different and distinct from reimbursement,” and there is no statutory language which prohibited the reimbursement to a Claimant for costs incurred for the lawful use of medical marijuana.
Thus, the denial of reimbursement costs incurred for lawful use of medical marijuana which has been found to be reasonable and necessary treatment of a compensable work injury can be found to constitute a violation of the Workers’ Compensation Act. Provided that medical marijuana is reasonable and necessary for a work injury and a Claimant is lawfully using the drug under the MMA, failure to make payment could now subject an employer/carrier to penalties under the Workers’ Compensation Act.
Both decisions, based the rationale applied differentiating between coverage and reimbursement given the potential significant impact upon the defense industry, will most likely be appealed to the Pennsylvania Supreme Court. It should be noted that there was a well written and reasoned dissent filed in Fegley which noted that there should not be reimbursement made by a carrier if there is no coverage for the item that is requested to be reimbursed. Further, it was posited that if the doctor is contributing to the dispensing of marijuana, which is still prohibited by Federal Law, the treatment may not be reasonable and necessary treatment.
It should be noted that there may be other arguments that could be advanced against the payment and/or reimbursement of medical marijuana. Such argument may require the initiation of litigation. Should a request be received for reimbursement for medical marijuana, it may be advisable to seek legal counsel as failure to take action or issue payment within thirty (30) days may now lead to the filing of a Petition for Penalties by the claimant’s bar as well as a request for the imposition of Lorino fees for the time expended by counsel in seeking reimbursement for such invoices.
