State Codes and Statutes

State Codes and Statutes

Statutes > Nebraska > Chapter48 > 48-120

48-120. Medical, surgical,and hospital services; employer's liability; fee schedule; physician, rightto select; procedures; powers and duties; court; powers; dispute resolutionprocedure; managed care plan.(1)(a) The employeris liable for all reasonable medical, surgical, and hospital services, includingplastic surgery or reconstructive surgery but not cosmetic surgery when theinjury has caused disfigurement, appliances, supplies, prosthetic devices,and medicines as and when needed, which are required by the nature of theinjury and which will relieve pain or promote and hasten the employee's restorationto health and employment, and includes damage to or destruction of artificialmembers, dental appliances, teeth, hearing instruments, and eyeglasses,but, in the case of dental appliances, hearing instruments, oreyeglasses, only if such damage or destruction resulted from an accident whichalso caused personal injury entitling the employee to compensation thereforfor disability or treatment, subject to the approval of and regulation bythe Nebraska Workers' Compensation Court, not to exceed the regular chargemade for such service in similar cases.(b) Except as provided in section 48-120.04, the compensationcourt shall establish schedules of fees for such services. The compensationcourt shall review such schedules at least biennially and adopt appropriatechanges when necessary. The compensation court may contract with any person,firm, corporation, organization, or government agency to secure adequate datato establish such fees. The compensation court shall publish and furnish tothe public the fee schedules established pursuant to this subdivision andsection 48-120.04. The compensation court may establish and charge a fee torecover the cost of published fee schedules.(c) Reimbursement for inpatient hospital services providedby hospitals located in or within fifteen miles of a Nebraska city of themetropolitan class or primary class and by other hospitals with fifty-oneor more licensed beds shall be according to the Diagnostic Related Group inpatienthospital 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 differentthan the fee schedules established under subdivision (1)(b) of this sectionor established under section 48-120.04. Such contract shall be in writingand mutually agreed upon prior to the date services are provided.(e) The provider or supplier of such services shall not collector attempt to collect from any employer, insurer, government, or injured employeeor dependent or the estate of any injured or deceased employee any amountin excess of (i) the fee established by the compensation court for any suchservice, (ii) the fee established under section 48-120.04, or (iii) the feecontracted under subdivision (1)(d) of this section.(2)(a) The employee has the right to select a physician whohas maintained the employee's medical records prior to an injury and has adocumented history of treatment with the employee prior to an injury or aphysician who has maintained the medical records of an immediate family memberof the employee prior to an injury and has a documented history of treatmentwith an immediate family member of the employee prior to an injury. For purposesof this subsection, immediate family member means the employee's spouse, children,parents, stepchildren, and stepparents. The employer shall notify the employeefollowing an injury of such right of selection in a form and manner and withina timeframe established by the compensation court. If the employer fails tonotify the employee of such right of selection or fails to notify the employeeof such right of selection in a form and manner and within a timeframe establishedby 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 mannerand within a timeframe established by the compensation court following noticeby the employer pursuant to this subsection, then the employer has the rightto select the physician. If selection of the initial physician is made bythe employee or employer pursuant to this subsection following notice by theemployer pursuant to this subsection, the employee or employer shall not changethe initial selection of physician made pursuant to this subsection unlesssuch change is agreed to by the employee and employer or is ordered by thecompensation court pursuant to subsection (6) of this section. If compensabilityis denied by the workers' compensation insurer, risk management pool, or self-insuredemployer, (i) the employee has the right to select a physician and shall notbe 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 theemployer has exercised the right to select a physician pursuant to this subsectionand if the compensation court subsequently orders reasonable medical servicespreviously refused to be furnished to the employee by the physician selectedby the employer, the compensation court shall allow the employee to selectanother physician to furnish further medical services. If the employee selectsa physician located in a community not the home or place of work of the employeeand 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 orher workers' compensation insurer.(b) In cases of injury requiring dismemberment or injuriesinvolving major surgical operation, the employee may designate to his or heremployer the physician or surgeon to perform the operation.(c) If the injured employee unreasonably refuses or neglectsto avail himself or herself of medical or surgical treatment furnished bythe employer, except as herein and otherwise provided, the employer is notliable for an aggravation of such injury due to such refusal and neglect andthe compensation court or judge thereof may suspend, reduce, or limit thecompensation otherwise payable under the Nebraska Workers' Compensation Act.(d) If, due to the nature of the injury or its occurrenceaway from the employer's place of business, the employee or the employer isunable to select a physician using the procedures provided by this subsection,the selection requirements of this subsection shall not apply as long as theinability to make a selection persists.(e) The physician selected may arrange for any consultation,referral, or extraordinary or other specialized medical services as the natureof the injury requires.(f) The employer is not responsible for medical servicesfurnished or ordered by any physician or other person selected by the employeein disregard of this section. Except as otherwise provided by the NebraskaWorkers' Compensation Act, the employer is not liable for medical, surgical,or hospital services or medicines if the employee refuses to allow them tobe furnished by the employer.(3) No claim for such medical treatment is valid and enforceableunless, within fourteen days following the first treatment, the physiciangiving such treatment furnishes the employer a report of such injury and treatmenton a form prescribed by the compensation court. The compensation court mayexcuse the failure to furnish such report within fourteen days when it findsit to be in the interest of justice to do so.(4) All physicians and other providers of medical servicesattending injured employees shall comply with all the rules and regulationsadopted and promulgated by the compensation court and shall make such reportsas may be required by it at any time and at such times as required by it uponthe condition or treatment of any injured employee or upon any other mattersconcerning cases in which they are employed. All medical and hospital informationrelevant to the particular injury shall, on demand, be made available to theemployer, the employee, the workers' compensation insurer, and the compensationcourt. The party requesting such medical and hospital information shall paythe cost thereof. No such relevant information developed in connection withtreatment or examination for which compensation is sought shall be considereda privileged communication for purposes of a workers' compensation claim.When a physician or other provider of medical services willfully fails tomake any report required of him or her under this section, the compensationcourt may order the forfeiture of his or her right to all or part of paymentdue for services rendered in connection with the particular case.(5) Whenever the compensation court deems it necessary, inorder to assist it in resolving any issue of medical fact or opinion, it shallcause the employee to be examined by a physician or physicians selected bythe compensation court and obtain from such physician or physicians a reportupon the condition or matter which is the subject of inquiry. The compensationcourt may charge the cost of such examination to the workers' compensationinsurer. The cost of such examination shall include the payment to the employeeof all necessary and reasonable expenses incident to such examination, suchas transportation and loss of wages.(6) The compensation court shall have the authority to determinethe necessity, character, and sufficiency of any medical services furnishedor to be furnished and shall have authority to order a change of physician,hospital, rehabilitation facility, or other medical services when it deemssuch change is desirable or necessary. Any dispute regarding medical, surgical,or hospital services furnished or to be furnished under this section may besubmitted by the parties, the supplier of such service, or the compensationcourt on its own motion for informal dispute resolution by a staff memberof 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 submitsuch a dispute for a medical finding by an independent medical examiner pursuantto section 48-134.01. Issues submitted for informal dispute resolution orfor a medical finding by an independent medical examiner may include, butare not limited to, the reasonableness and necessity of any medical treatmentpreviously provided or to be provided to the injured employee. The compensationcourt may adopt and promulgate rules and regulations regarding informal disputeresolution or the submission of disputes to an independent medical examinerthat are considered necessary to effectuate the purposes of this section.(7) For the purpose of this section, physician has the samemeaning as in section 48-151.(8) The compensation court shall order the employer to makepayment directly to the supplier of any services provided for in this sectionor reimbursement to anyone who has made any payment to the supplier for servicesprovided in this section. No such supplier or payor may be made or becomea 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 employermay contract for medical, surgical, hospital, and rehabilitation servicesto be provided through a managed care plan certified pursuant to section 48-120.02.Once liability for medical, surgical, and hospital services has been acceptedor determined, the employer may require that employees subject to the contractreceive medical, surgical, and hospital services in the manner prescribedin the contract, except that an employee may receive services from a physicianselected by the employee pursuant to subsection (2) of this section if thephysician so selected agrees to refer the employee to the managed care planfor any other treatment that the employee may require and if the physicianso selected agrees to comply with all the rules, terms, and conditions ofthe managed care plan. If compensability is denied by the workers' compensationinsurer, risk management pool, or self-insured employer, the employee mayleave 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 employeessubject to the contract of eligible service providers and such other informationregarding the contract and manner of receiving medical, surgical, and hospitalservices under the managed care plan as the compensation court may prescribe. SourceLaws 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.Annotations1. Liability2. Travel expense3. Physician's fee4. Miscellaneous1. LiabilityBefore 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).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 expenseAn 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 feeWorkmen'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. MiscellaneousThis 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).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).