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.