The burial benefit under the Nebraska Workers’ Compensation Act will increase to $11,300.00 effective July 1, 2023. This benefit applies upon the death of an employee, resulting through personal injuries as defined in NEB. REV. STAT. § 48-151

Please select this link to view the latest news from the Nebraska Workers’ Compensation Court (https://www.newcc.gov/home/court-news).

https://cpwlaw.com/news-releases-coming-burial-benefit-to-increase/

• 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.

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.

Effective January 1, 2023, the maximum weekly income benefit under the Nebraska Workers’ Compensation Act will increase to $1,029.00. This amount applies to work-related injuries and illnesses occurring on or after January 1, 2023 (https://www.wcc.ne.gov/home/court-news/2022-6-news).

Permanent injuries in Nebraska are either to a “scheduled member” or to the “body-as-a-whole.”  In general, “scheduled members” are those injuries specifically listed in § 48-121(3). Scheduled members include fingers, hands, toes, feet, knees, eyes, ears, and hearing. Permanent impairment to a single scheduled member, such as an arm, is compensated in terms of loss of function. You’ll most frequently see this loss of function expressed as a percentage of permanent impairment.

Alternatively, injuries to body parts not expressly listed in § 48-121(3) are commonly called whole-body or body-as-a-whole injuries. Most commonly, these include injuries to the back, neck, head, and psyche. For these whole-body injuries, compensation is based on the employee’s “loss of earning capacity” or “LOEC” which is also referred to as the employee’s “loss of earning power.”  There is no numerical formula to determine an employee’s LOEC. It is determined by considering four factors: (1) the worker’s general eligibility to procure and (2) hold employment, (3) the worker’s capacity to perform the tasks required by the work and (4) the worker’s ability to earn wages in employment for which he or she is engaged or fitted. Sidel v. Travelers Ins. Co., 205 Neb. 541, 288 N.W.2d 482 (1980).

Pursuant to a 2007 statutory amendment, the Act also provides that if an employee suffers two or more scheduled member injuries arising out of one accident and the loss of earning capacity is at least 30 percent, the compensation court has the discretion to compensate the employee based upon the resulting loss of capacity. Neb. Rev. Stat. § 48-121(3).  This is commonly called the “two scheduled member exception,” but for purposes of this post, it will be referred to succinctly as the ”exception.”

Historically, the purpose of the exception was meant to apply to bilateral injuries arising from the same accident or injuries to completely different body parts. For example, an employee who suffered bilateral knee injuries or both a hand injury in conjunction with a knee injury would be considered under the exception. That argument seemed to change in 2017 when Judge Hoffert held that an employee’s injuries to two different fingers on the same hand could also fall within the exception.

In Abdi v. JBS Holdings, 2017 WL 2437763 (Neb. Work. Comp. Ct.) Judge Hoffert first addressed whether or not a thumb and index finger qualify as multiple member injuries under the exception. To that, Judge Hoffert concluded, “The Court has carefully reviewed the subject statute and searched in vain for any applicable case law. In the end, the Court finds no prohibition against considering a thumb and finger injury as two separate member injuries as each are certainly listed as scheduled injuries under Section 48-121(3). If it were the legislature’s intent to exclude thumb and finger injuries from consideration an affirmative statement to that effect would likely have been made. Additionally, one could easily imagine a circumstance where an injured worker may lose or suffer serious injury to both thumbs in a single accident and would undoubtedly be significantly impaired as to his future earning capacity.” (emphasis added). Importantly, even Judge Hoffert seemed to recognize that the exception was most relevant to bilateral injuries.

Since Judge Hoffert’s decision, several similar cases were decided at the trial court level with differing opinions from the Judges as to whether injuries to the same extremity or limb can satisfy the “two scheduled members” exception.

The most relevant is Judge Fitzgerald’s recent decision in Espinoza v. Job Source, USA, 2022 WL 432217 (Neb. Work. Comp. Ct.). In Espinoza, Judge Fitzgerald held that a right arm and right-hand injury were not two separate injuries for purposes of the exception. As background, the employer in that case stipulated that the employee suffered both a right wrist and right elbow injury as a result of an accident on March 20, 2019. Shortly after the accident, the employee underwent a right wrist surgery. One month later, she had surgery on her right elbow. In light of the same, the employer stipulated that the employee was entitled to a 13% rating to the right upper extremity pursuant to the AMA Guidelines. This rating was a combination of a 5% rating to the elbow and a 9% impairment to the wrist. This is important because § 48-121(3) values an injury to the elbow differently than an injury to the wrist. Specifically, an injury to the elbow is worth up to 225 weeks while an injury to the wrist is worth up to 175 weeks.

Citing to the two-member exception, Judge Fitzgerald held: “A loss of use due to an injury to the wrist and the elbow in a single arm is not an injury to parts of more than one member. The arm is a single member, and any loss of use for an injury below the elbow would be included in the loss of the use of the same arm. The Court finds that an injury to the wrist and the elbow of the same arm is still an injury to a single member and does not entitle an employee to a loss of earning power.”

Espinoza is now on appeal to the Nebraska Supreme Court and is drawing attention from both sides of the workers’ compensation aisle. The Plaintiff’s bar argues that § 48-121(3) should be read to allow an employee to prove multiple injuries to the same limb to satisfy the two-member exception. However, such an argument overlooks the plain language of § 48-121(3), and the intent of the legislature from when it was passed.  Indeed, when the 2007 legislative session created the two-member exception, the phrase “bilateral injuries” was consistently utilized by proponents. The example of bilateral carpal tunnel was specifically raised as a type of injury that should qualify under the exception. Other examples included entirely different limbs – a rotator cuff and a knee.

A decision from the Supreme Court will likely not be issued for several weeks, but CPW Law will continue to closely monitor the same as it will certainly impact a dispute among the trial court Judges as to when the two-member exception applies.

If you have questions about a case involved multiple scheduled member injuries, 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.

In Nebraska, 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. Neb. Rev. Stat. § 48-120. This includes  plastic or reconstructive surgery and the furnishing of appliances, supplies, prosthetic devices, and medicines as needed. Simmons v. Precast Haulers, Inc., 288 Neb. 480, 849 N.W.2d 117 (2014). It also may include chiropractic care, home alternations, 24-hour in-home medical services, and moving expenses to a more accessible home. Simmons, supra; Rodgers v. Sparks, 228 Neb. 191, 421 N.W.2d 785 (1988); Hoffart v. Fleming Companies, 10 Neb. App. 524, 634 N.W.2d 37 (2001). Alternatively, an employer is not obligated to provide surgery, appliances, and devices for purely cosmetic reasons. Every year, the compensation court is asked to determine whether somewhat nontraditional “medical treatment” is compensable under the Act. This blog discusses some of those cases.

Pilates Sessions.  In 2020, Judge Hoffert was asked to determine whether Pilates sessions were compensable medical treatment. In that case, the employee’s treating physician opined that private Pilates sessions were “required to facilitate the [employee’s] medical rehabilitation” as it would “decrease the ongoing muscle tightness” from the work injury. The employer argued that such sessions were not reasonable and necessary, albeit they put forth no evidence from a medical provider regarding the same. Ultimately, largely due to the lack of evidence submitted by the employer, Judge Hoffert agreed that the employee had met her burden of proof to show that the Pilates sessions would relieve pain and hasten the employee’s restoration to health and employment, and the employer was required to pay for the medical treatment. Because of the Covid pandemic, Judge Hoffert further held that it was reasonable for the employee to have private sessions.

Massage Therapy. The issue presented to Judge Fitzgerald in December of 2020 centered on whether massages were “medical care” under § 48-120. The evidence offered at the hearing showed that the employee’s treating physician had previously said that the treatment that helped the employee most was “message therapy.” However, when the employee restarted message treatment at her own expense, the employer wrote to the treating physician and asked his opinion on whether that massage therapy was reasonable and necessary. To that, the doctor wrote, “She does have a chronic myofascial component to her pain. We are not in agreement with routine massage therapy but are happy to refer her to a trained physical therapist for myofascial techniques.” At trial, the employee testified that she attended physical therapy but received little benefit, nothing like the relief she received from massage therapy. Additionally, because the treating physician would not say that massages were medically necessary, the employee sought an opinion from her primary care provider. Without elaborating, the primary care provider opined that massages were necessary medical treatment. After citing the beneficent purpose of the Act and the fact that the treating doctor agreed that message treatment would help temporarily, Judge Fitzgerald held there is no requirement under § 48-120 that treatment provide a benefit that last a long period of time. The Court therefore awarded the message therapy treatment.

Brand New Home. In cases where employees suffer injuries requiring prosthetics or wheelchairs, the issue of home modifications frequently arise. The Nebraska Supreme Court has already stated that residential modifications fall within the purview of § 48-120. Simmons v. Precast Haulers, Inc., 288 Neb. 480, 849 N.W.2d 117 (2014).  However, in 2020, Judge Martin was asked to determine whether § 48-120 would require the employer to provide a custom-built accessible home for the employee if modifications to a current residence alone would not be sufficient. In Lewis v. MBC Construction Co., the employee’s work-related accident resulted in his leg being amputated. He required a wheelchair or prosthetic for most of his mobility. The parties did not disagree that the employee’s mobility challenges required him to have a “handicap accessible home.” However, after being evicted from his apartment (for reasons unrelated to his injury), the employee demanded that the employer build him a $400,000.00 home which included four bedrooms and a three-car garage. At trial, Judge Martin recognized that certain home accommodations would be necessary for the employee including wider doors, flooring without raised edges, and lower cabinet heights. Initially, Judge Martin ruled that the employer would have 45 days to find suitable housing that satisfied a number of requirements, or that it must alternatively build the employee an accessible home. That decision was ultimately appealed to the Nebraska Supreme Court which remanded the case back to Judge Martin for a more detailed order regarding the employer’s obligations to build or buy a new home. In the September of 2021 Order, Judge Martin changed her decision to say that Plaintiff had failed to meet his burden of proof that he was entitled to the $400,000.00 house and she therefore dismissed his Motion entirely (meaning she did not require the employer to do any home modifications). The issue has not yet been readdressed by the parties with a further hearing.

As medical treatment evolves and less traditional forms of treatment become more popular, disputes about what constitutes “medical treatment” under § 48-120 will continue to occur. The operative question in these cases is whether the treatment will “relieve pain or promote and hasten the employee’s restoration to health and employment.” Importantly, when disputes like these arise, the employer should seek contrary evidence via expert medical providers. The issue then becomes one of fact for the compensation court to determine.

If you have questions about a medical care issue, 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.

While litigation is by nature adversarial, reaching a settlement agreement can be one of the most rewarding moments. However, several recent decisions in the Nebraska Workers’ Compensation Court have been a gentle reminder that reaching a dollar figure in terms of a settlement agreement is only the first step of an entire process, a process which deserves equal attention by the defense attorney.

There are essentially two methods by which the parties can memorialize a full and final settlement: a Release of Liability or a Lump Sum Settlement. Regardless of which filing is applicable, both must be filed with, and approved by the Court. Until the Court enters an order dismissing the claim with prejudice, settlement has not been perfected. In several recent cases, the Court has addressed disputes over the settlement process. This article explores those decisions.

(1) Pay Settlements Timely

Pursuant to Neb. Rev. Stat. § 48-139(4), once the Court enters an order of dismissal with prejudice, the defendant must pay the settlement value within thirty days of the date the Release of Liability was filed with the Court. Failure to pay the settlement within 30 days results in a 50% penalty on the total amount owed. By way of example, if a defendant fails to pay a $50,000.00 settlement, the employee is entitled to an additional penalty of $25,000.00. The same 50% penalty applies to lump sum settlements which are not paid within 30 days of the date the Court enters an Order approving the same. Neb. Rev. Stat. § 48-125(3).

Every year, the Court addresses a handful of claims where the defendant fails to pay the settlement within the allotted 30 day time period. In February of 2021, Judge Hoffert awarded a penalty for a staggering $57,500.00 when the employer paid a settlement 40 days after a Release of Liability had been filed. The employer attempted to excuse its tardiness by saying a “series of unfortunate circumstances,” led to the late payment including the insurer inadvertently sending the check to the wrong firm, the attorney who received the check had COVID and was in quarantine, and the check again being sent to the wrong person from there. While sympathetic, Judge Hoffert highlighted that the law is mandatory in nature, and he had no discretion in the decision.

Because the law is not flexible, several recent cases have questioned how exactly to calculate thirty days. In February of 2022, Judge Fridrich had to answer that very question when presented with the argument that a settlement check, albeit received by the employee on the 32nd day, was still timely because of Martin Luther King Day. Citing Herrington v. P.R. Ventures, LLC, 279 Neb. 754, 781 N.W.2d 196 (2010), Judge Fridrich highlighted that if the 30th day is either a Sunday or a holiday for which the Compensation Court is closed, then the employer must pay the injured worker the next day which is not either a Sunday or a day the Court is closed. In the case at bar, the 30th day was a Sunday and the 31st day was a holiday (Martin Luther King Day). Therefore, despite the fact the payment was received on the 32nd day, the payment was not late, and no penalty was awarded.

Judge Stine was also recently asked to answer when to start counting the 30 days. As it frequently happens, an employee will sign a Release of Liability several days before the document is actually filed with the Court. In June of 2022, an employee attempted to argue that the 30 days to pay a settlement runs from the date the employee signed the release rather than the date it was filed with the Court. Quickly overruling that argument, Judge Stine highlighted that the 30 days only runs when the Release is filed with the Court.

(2) Scope of Settlements

While the vast majority of settlements in Nebraska are for “full and final settlements” meaning the employee waives all of his or her rights to benefits, there are times when the employee only waives a portion of his or her claim. For example, an employee may waive their future indemnity benefits but will keep his or her right to future medical care open. In cases where less than the entire claim is going to be resolved, it’s important to pay careful attention to ensure the settlement documents details the scope of benefits being waived.

On one end of the spectrum, in March of 2022, an employee filed a Motion asking the Court to enforce the settlement demand and require the defendant to pay certain outstanding medical bills and vocational rehabilitation. Contrary to that argument, Judge Fridrich highlighted that nowhere in the settlement agreements were those terms exempted (meaning, they were forever waived when the Court approved the settlement documents).

Contrast this with Judge Fridrich’s decision in a May of 2019 when he held that, by leaving open the employee’s right to future medical care, the employee was entitled to any and all treatment which resulted by virtue of the accepted back injury.

(3) Settlements Aren’t Perfected Until Filed

It sometimes happens that the parties agree to a settlement figure, only for one of the parties to thereafter change his or her mind. At least once a year, the Court is asked to enforce a settlement agreement that had not yet been approved by the Court.

In July of 2019, Judge Block was asked to enforce a settlement agreement against a defendant who, for whatever reason, decided to withdraw its agreement to settlement. The evidence showed that neither a Lump Sum Settlement Application nor Release was signed by the parties. Judge Block very clearly stated the Court does not have the authority to enforce a settlement agreement unless the same had been approved by the Court.

Judge Martin made the exact same holding in the May of 2021 case of Brayman v. Packaging Corporation of Amercia. In that case, no settlement documents had been filed with the Court. Judge Martin wrote, “While the Court understands plaintiff’s frustration by defendant’s action, or rather inaction, what she is seeking is specific performance of the settlement agreement. Specific performance is an equitable remedy. The Nebraska Workers’ Compensation Court does not have equity jurisdiction… Therefore, the Court has no alternative but to deny plaintiff’s Motion.”

These cases serve as a reminder that agreeing to a settlement figure isn’t the ending step. Until the correct documents are filed and approved by the Court, a settlement is not yet final. If you have questions about a settlement issue, 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.

While each litigated case in the workers’ compensation court is unique, the standard process of how a case gets to trial is roughly the same. One party files a Petition and the opposing party files an Answer. Days later, the parties typically exchange what are called discovery requests. These requests most commonly include interrogatories and requests for production of documents. In general, interrogatories are questions that the opposing party must answer, while requests for production of documents are just that, a request for tangible records or physical things to be disclosed.

The main purpose of discovery is to allow the investigation of all available and properly discoverable information in order to limit the issues at trial while allowing for an efficient resolution of a legal claim. Moreover, discovery is meant to allow adequate pretrial preparation. Above all, discovery is meant to eliminate an opponent’s tactical surprise with the aim being a result reached upon on the merits of the case rather than legal maneuvering. Norquay v. Union Pacific Railroad, 225 Neb. 527, 407 N.W.2d 146 (1987).

Because discovery occurs in virtually every case, discovery issues are one of the most common disputes the compensation court judges must determine. These disputes include a plethora of issues ranging from failure to timely respond to discovery, to providing incomplete or inadequate answers, or making objections not supported by law. Because discovery disputes are one (if not the most) filed motions in the court, it naturally follows that each judge has formed his or her own unique way of viewing the associated rules. This article specifically focuses on the two of the more common issues: failure to respond to discovery and allegedly “irrelevant” requests.

Before divulging into each judges’ view of these three disputes, it should be noted that every single judge has emphasized the importance of the parties attempting to resolve disputes without involvement of the Court. Indeed, the rules mandate such good faith attempts are made between the parties. See Nebraska Workers’ Compensation Court Rules of Procedure Rule 3(D)(4). Because motions require hearings and court reporters, these disputes can be unnecessarily expensive, and the parties should make every effort to attempt to agree on the extent of discoverable information.

In this author’s opinion, the most commonly filed Motion to Compel results from a party’s complete failure to answer discovery. In these cases, virtually every single judge will first order the non-answering party to respond to discovery within anywhere from 10 to 30 days. If the party still hasn’t responded within the ordered deadline, a split has been created as to what sanctions the Court can assess for the party’s failure to answer discovery. The more historical approach from the bench has been (in cases where the Plaintiff failed to respond) to dismiss his or her Petition with or without prejudice. If the Petition is dismissed with prejudice, it cannot ever be refiled at a later time. A Petition dismissed without prejudice can be refiled as long as the statute of limitations has not run. Judge Coe dismissed an action in August of 2021 with prejudice when the employee failed to respond to an order compelling discovery. Faatz v. American Dream, Doc 221, Page 0196 (Neb. Work. Comp. Court, 2021). Alternatively, Judge Stine in February of this year dismissed a Petition without prejudice for the failure to respond to the Court’s three prior orders compelling discovery. Pauletta v. Crete Carrier Corporation, Doc 221, No 0532 (Neb. Work. Comp. Ct. 2022). Judge Hoffert took a similar approach when dismissing a 2020 Petition without prejudice. Murphy v. Omaha-League of Human Dignity, Doc 220, No 0404 (Neb. Work. Comp. Ct. 2020). See also Wilson v. Advance Services, Doc 219, No 1401 (Neb. Work. Comp. Ct. 2021) (Judge Martin dismissing a Petition without prejudice).

While the various judges have differing views regarding whether to dismiss a Petition with or without prejudice for failure to respond to discovery, there tended to be agreement that the Petition should at least be dismissed. Contrary to that viewpoint, Judge Block, in recent decisions, has shown hesitancy to dismiss the pleadings. While he acknowledges that § 6-337(b) (2)(A-D) of the Nebraska Discovery Rules does allow for the Court to dismiss the present action, he has verbally expressed disagreement that it allows for a dismissal with prejudice. In fact, the exact language of the rule does not address whether the dismissal shall be with or without prejudice. The rules states that sanctions may include “(C) An order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof or rendering a judgment by default against the disobedient party.” As contemplated by the rule, Judge Block has elected to instead stay the proceedings until the party fully and completely complies with the order regarding discovery. Logistically, a stay on the proceedings means that the Petition is still considered on file, but the Court will not set it for trial until the stay is lifted. Practically, this approach means an employee doesn’t risk his claim being barred by the statute of limitations because the Petition isn’t actually dismissed. It also tends to allow a litigated case to become stagnant because there is no pending trial date. Thus far, Judge Block seems to be the only sitting judge who is taking the “stay” approach, but it will be interesting to monitor if this trend gains notoriety with other judges who typically preferred to dismiss a Petition without prejudice.

Another common discovery dispute is over what counsel will define as “irrelevant” requests. In a workers’ compensation claim, the issues are relatively well defined. However, it sometimes happens that a party requests discovery on a topic that seems to be wholly irrelevant to the underlying workers’ compensation claim.

The general provisions governing discovery in Nebraska provide that a party may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter. Such inquires will be allowed “if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.” § 6-326. In other words, there’s no question that discovery is meant to be construed broadly. This means that arguing something is not relevant to the pending case is not an easy argument to win. Stetson v. Silverman, 278 Neb. 389, 770 N.W.2d 632, (2009). Even so, while the scope of discovery may be broad, it is not unlimited. For example, an employee is certainly entitled to know from the employer the names of every other employee that witnessed the alleged accident. However, knowing the social security number of the witnesses would be highly irrelevant. Chestnut v. Rodney E. Rohde, Doc 221, No 1022 (Neb. Work. Comp. Ct. 2022).

Each judges takes a unique approach to determining whether a discovery request is relevant to the underlying workers’ compensation claim, and the ultimate decision always comes down to the exact type of information requested. However, important trends can be collected from some of the more recent cases. Judge Hoffert, for example, addressed whether an employee’s social media profile was relevant. In holding it was not, Judge Hoffert highlighted the lack of “factual predicate” underlying the request. Stated another way, Judge Hoffert noted the Defendant ought to present some kind of argument as to why the information was remotely relevant (for example, did the employee testify at his deposition that he posted accident-related information on his Facebook?). Judge Fridrich, in early 2022, similarly discussed how the party requesting the information should be prepared to argue how the requested information is expected to lead to discoverable information. Ziegelbein v. Moen Steel Erection, Doc 221, No 0915 (Neb.Work.Comp.Ct. 2022).

Judge Martin perhaps put it best when she verbalized her frustration when a party used the discovery rules to create unnecessary disputes long withdrawn from the true issues of the case. She wrote in a recent Order on Plaintiff’s Motion to Compel Discovery, “In looking at this matter, the Court was left to wonder what plaintiff gained from expending the time and energy to obtain this information on an accepted compensable accident and injury for which benefits are being paid.” Reading between the lines, it’s important that parties use the discovery rules for their intended purpose – to investigate the issues to be presented at trial – not as a matter of unnecessary gamesmanship.

If you have questions about a potential discovery issue, 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.

Notice Regarding Change to Nebraska Workers’
Compensation Mileage Reimbursement Rate

LINCOLN, Neb. — Effective July 1, 2022, the mileage rate will become 62.5 cents per mile for
travel to seek medical treatment or while participating in an approved vocational rehabilitation
plan.
Historic mileage reimbursement rate information is available in the Tables of Maximum / Minimum
Compensation Benefits, Burial Benefits, and Mileage Reimbursement Rates on the Nebraska
Workers’ Compensation Court’s “Benefits” web page (https://www.wcc.ne.gov/service­providers/
attorneys/benefit­rates).
For more information about workers’ compensation in Nebraska, refer to the Nebraska Workers’
Compensation Court website (http://www.wcc.ne.gov) or call our Information Line at 402­471­6468
or 800­599­5155 (toll free).

Click here for more information!