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Workers comp court cannot dismiss claim as sanction for contempt: Neb. high court


LINCOLN, Neb.—A workers compensation court cannot dismiss a claim as a sanction for contempt or because an injured worker failed to cooperate, Nebraska's Supreme Court ruled Friday.

The ruling in Hofferber vs. Hastings Utilities stems from an October 2000 accident and a related workers comp claim Chad A. Hofferber filed nearly two years later. He alleged he suffered left-foot and left-side injuries, abdominal injuries, urological injuries and “severe and profound emotional injuries” as a result of stepping on a manhole cover, court records state.

After undergoing revascularization surgery in 2003, Mr. Hofferber still suffered from chronic pain. But after his periodic dif¬ficulties in keeping medical appointments because of other medical problems, insurer EMC Insurance Cos. requested a signed medical release from Mr. Hofferber so it could substantiate his reasons for not keeping an appointment.

EMC stopped Mr. Hofferber's benefit payments until he provided the signed release.

In 2006 Mr. Hofferber filed a Workers' Compensation Court petition alleging he was owed past-due benefits, unpaid medical and legal expenses, vocational rehabilitation, and future medical treatment.

But Mr. Hofferber responded to EMC's requests for discovery information and offers to assist him in resuming medical treatment with profane voice mails, court records state.

Eventually a court directed Mr. Hofferber to comply with EMC's discovery requests, and it directed him to avail himself of the medical treatment being offered.

In 2008, after he did not comply, a court penalized Mr. Hofferber by terminating his right to workers comp benefits for contempt and refusing to comply.

A year later, however, a court appointed a guardian after finding Mr. Hofferber lacked the capacity to make responsible decisions. The guardian sought to reinstate his benefits.

EMC argued that the 2008 court decision was final, but in 2010 a court vacated the 2008 order. EMC then appealed to a review panel that found, among other things, that a workers compensation court cannot dismiss a claim with prejudice in order to punish contemptuous behavior.

The review panel then affirmed the court’s 2010 finding, and EMC appealed to the Supreme Court.

But the Supreme Court ruled that although a workers comp court can dismiss a claim based upon certain discovery violations, no such viola¬tions were found in this case. It also said that “the compensation court is not authorized to dismiss a petition as a sanction for a party’s conduct either because an injured worker failed to cooperate with treatment or rehabilitation or as an exercise of contempt authority.”

It therefore upheld the review panel’s finding, which remanded the case to the trial court for further proceedings.