Nebraska Employer Need Not Pay for Unauthorized Medical Treatment in Florida Following Worker’s Relocation

Employer Balks at Out-of-State MD’s Recommendation of Long-Term Opioid Cocktail

That an injured worker’s “Form 50” physician had died and the worker had subsequently moved from Nebraska to Florida did not excuse the worker from following the Nebraska Workers’ Compensation Act regarding authorized medical treatment, held the Supreme Court of Nebraska in Rogers v. Jack’s Supper Club, 2019 Neb. LEXIS 170 (Dec. 6, 2019). Accordingly, it was error for the state’s Workers’ Compensation Court to order her former employer and its carrier to reimburse her for various medical charges she incurred in Florida after her relocation. The Court found the worker had offered no compelling argument to excuse compliance with Neb. Rev. Stat. § 48-120(2)(Cum. Supp. 2018). Although the issue played no role in the legal determination, an underlying factor in the case appears to have been the Florida MD’s recommendation of a long-term opioid cocktail to help the worker with pain.

Background

Rogers injured her back while working for Jack’s Supper Club (“JSC”) in 2001. Shortly after her injury, she completed what the parties indicated was a “Form 50,” indicating that she was choosing a “Dr. Beyers” in Benkelman, Nebraska, to treat her for her work-related injury. In 2010, the parties agreed to a lump sum settlement, with JSC remaining responsible to pay for Rogers’ reasonable and necessary medical care related to the injury.

At some point, Dr. Beyers died and Rogers began treatment with Dr. Stonehocker, one of Dr. Beyers’ colleagues. JSC apparently reimbursed Rogers for treatment provided by Dr. Stonehocker. In 2010, Rogers moved to Florida and the parties’ counsel engaged in a series of communications regarding Rogers’ treating physician. Following the move, JSC proposed that the parties agree to a pain management specialist in Florida. Rogers’ counsel responded that she would not agree with JSC to such a specialist, that she had selected a “Dr. Daitch,” a pain management specialist in Florida. Rogers’ counsel also informed JSC that there was no “Form 50” and that Rogers was, therefore, free to select her own doctor. JSC’s counsel responded that there was indeed a Form 50 and that as a result, it was not clear what basis existed for Rogers to chose her own doctor unilaterally.

Hearing on the Issue of Authorized Physician

At a hearing on the issue, Rogers testified that she had received treatment from Dr. Daitch and from a “Dr. Means,” a chiropractor in Florida. No evidence was presented to show that JSC had agreed to the use of either doctor. Moreover, there was no evidence that Dr. Stonehocker had referred Rogers to either doctor. The compensation court rejected JSC’s argument that it was not responsible for the medical expenses incurred by Rogers. JSC appealed.

Nebraska’s Choice of Physician Statute

Initially, the Court observed that Neb. Rev. Stat. § 48-120(2) contained rules governing from whom an injured employee could obtain medical treatment for a compensable injury. Those rules allow an employee, in some circumstances, to select a physician to provide such treatment. There was no dispute that Rogers made such a selection by designating Dr. Beyers on the Form 50. In Nebraska, such a designed doctor is typically referred to as a “Form 50 Physician.” Generally speaking, once a Form 50 Physician has been designated, neither the employee nor the employer may change the initial selection of physician unless such change is agreed by the employee and employer or is ordered by the compensation court. If the employee seeks treatment outside the rules, the employer is not responsible for reimbursement or direct payment.

Parties’ Contentions

JSC’s position was that it was not responsible to pay for medical treatment unless it was provided by the Form 50 Physician or by a provider to whom the patient was referred by the Form 50 Physician. On the other hand, Rogers did not argue that the plain language of § 48-120(2)(a) entitled her to reimbursement for treatment from a provider that was not her Form 50 Physician or a person to whom she was referred by her Form 50 Physician. Instead, she argued that the Court should not follow the plain language in this case. Alternatively, she contended that JSC could not rely on § 48-120(2) because of certain actions and omissions on its part.

Court’s Reasoning

The Court disagreed with Rogers that application of the plain language of § 48-120(2)(a) in these circumstances would lead to “manifest absurdity.” Rogers argued that in circumstances in which a Form 50 Physician dies or the employee moves out of state, the employee can no longer be treated by or receive referrals from the Form 50 Physician and thus should be able to unilaterally choose a new physician. The Court stressed, however, that the language of the statute did not leave employees in such situations without remedies. A new Form 50 Physician could be selected either with agreement of the employer or by bringing the matter to the attention of the compensation court.

The Court added that it could not say that it would be manifestly absurd for the Legislature to require persons whose Form 50 Physician is no longer able to provide treatment or make referrals to obtain a new Form 50 Physician through the procedures explicitly set out in the statute. According to the Court, it was not tasked with selecting what it believed was the best policy. It was the function of the Legislature, through the enactment of statutes, to declare what is the law and public policy of Nebraska.

Nor was JSC bound by the fact that, following Dr. Beyers’ death, it had reimbursed Rogers for treatment rendered by Dr. Stonehocker. In Nebraska, voluntary payments of workers’ compensation benefits did not constitute an admission of liability on the part of the employer. The employer had not waived its right to rely on the statute.

The Elephant in the Room: The Opioid Cocktail

At the initial hearing before the compensation court, JSC offered a medical report from a physician who stated that Rogers’ complaints were “disproportionate with what would be expected from the back injury which she sustained and the surgical intervention that was undertaken.” In a subsequent report, the employer’s expert expressed concern that Rogers was taking fentanyl, Norco, Lyrica, Valium, and Flexeril. The physician also stated that patients often believe that such a combination of opioids, benzodiazepines, and muscle relaxants is more beneficial than it actually is. Dr. Daitch indicated that Rogers would require a lifelong medication regimen of fentanyl, Norco, Lyrica, and Valium. JSC’s expert said she should be weaned from oral opiates.

JSC also offered a report of another physician, who reviewed Rogers’ records and examined her. He stated that Rogers’ complaints of pain were disproportionate with what would be expected and that there was “no evidence to support the long-term use of opioids for [Rogers] condition related to the work injury.” This physician also recommended weaning Rogers from the opioid portion of the medication regimen, indicating that there was no evidence to support the long-term use of opioids for Rogers’ condition.

One should, of course, be sympathetic to the pain that Rogers has suffered. Still, numerous studies have indicated that long-term opioid use is not helpful; rather it is harmful. Other studies point to additional health problems associated with combining opioids and benzodiazepines (see my earlier writing on this issue here and here). Physician choice debates are often contentious. The injured worker should have confidence in his or her treating physician. The employer, alternatively, has a right to expect that treatment will aid the overall health of the worker, not make matters worse. Let’s hope that in this instant case, an effective compromise can be found.