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Entry Upon an Employer's Property in Workers' Compensation Cases: What Purposes Does it Serve and Who May Attend?

An injured worker's attorney may request entry onto the employer's worksite to gather evidence pertinent to the workers' compensation claim. Access to an employer's property is permitted pursuant to Neb. Ct. R. Disc. § 6-334(a)(2), which allows for:

[E]ntry upon designated land or other property in the possession or control of the party upon whom the request is served for the purpose of inspection and measuring, surveying, photographing, testing, or sampling the property or other designated object thereon within the scope of Rule 26(b).

The most common reasons to request entry to the worksite include but are not limited to the following:

  • to videotape and/or photograph the claimant's work station and work duties;
  • to weigh product or work materials or otherwise test and assess physical exertion required to perform the work;
  • to assess whether an accommodated duty/light-duty position falls within the injured workers' temporary or permanent physical restrictions;
  • to inspect equipment and/or the premises to determine whether there may be third-party liability.

It is not uncommon for the injured worker to accompany their attorney at the inspection, and it is well recognized that the employer's attorney has a right to attend the inspection. The Nebraska Workers' Compensation Court has also ruled that others may be present at the inspection, including for example, a physical therapist. Specifically, in Gallo-Garcia v. Farmland Foods, Inc., Doc. 206 No. 2026 (September 9, 2008 Order), the injured worker's attorney sought entry to the employer's production plant to view and videotape job positions the employer alleged the worker was physically capable of performing. The employer objected to the requested inspection, arguing that:

  1. access may cause contaminations in violation of the United States Department of Agriculture contamination requirements, and
  2. the injured worker's attorney was hostile to the defendant.

The Nebraska Workers' Compensation Court allowed access to the injured worker, his attorney, and the physical therapist who conducted the injured worker's functional capacity evaluation (FCE). The Court also ordered a company representative be present at the inspection "to answer any questions the physical therapist may have." The Court declined, however, to allow access to the court appointed vocational expert and rebuttal vocational expert, reasoning that it was more appropriate that the physical therapist who performed the injured worker's functional capacity examination (FCE) be present, as the physical therapist was in better suited to ascertain the injured worker's ability to perform the duties required of each position.

Please note that the specific facts and issues presented in each case will dictate whether a worksite inspection is necessary or helpful and may also impact what individuals are allowed to attend the inspection.

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What Our Clients Say

  • The lawyers and support staff at Atwood Law Firm showed me sincere interest and caring on a very personal level, and I knew at all times my interests were front and center in all aspects of my workers' compensation case. This office is staffed by a great group of people. You can relax and be assured that your welfare comes first and foremost in their decisions and actions with respect to your legal case. You are kept aware of the process and progress in your case at all times, and your input is welcomed. I highly recommend the Atwood Law Firm to anyone needing legal assistance. - WN

  • I cannot thank you enough for the peace of mind you have brought to my family! Both of my parents are extremely grateful for your work. I knew we were in good hands from the first meeting and you have exceeded all my expectations! It may feel straightforward to you, but to us, you have moved mountains. This settlement will allow my parents, particularly my Dad, to enjoy the rest of their lives to the fullest of their abilities. We all agree that we would give every cent back and more for my Dad to walk again, but that is not going to happen... - DW

  • "...He didn't treat me like I was one of 100 clients. He treated me like I was his only client. He acted professionally but with empathy, dignity and friendliness. It didn't matter if it was something small or large, he was always there for me, be it by phone, fax, email, cellphone or meeting me personally at his office or elsewhere. He never rushed me when I didn't understand something, he'd take as much time as needed to explain things to me, especially when it came time for my deposition and in preparation for trial. He was there for me when I truly needed his help..." - CG

  • "...My husband and I felt his kindness immediately and were both very impressed with his knowledge of what to expect in a wrongful death case. He pursued our claim in an aggressive manner while at the same time being very protective of our rights and privacy and sheltered us from any unnecessary contact with insurance agents, or any other adverse parties. My husband and I cannot say enough about the kindness, professionalism and legal ability demonstrated by Atwood, Holsten, Brown, Deaver & Spier Law Firm, P.C., L.L.O." - RD

  • "...If it were not for this law firm all I would have received from this injury would have been a loss of income check and a pat on the back, goodbye. Which only would have been a fraction of what I actually received. He was always professional but more importantly he cared about me and my family as people not just a client. He went beyond his role as my lawyer. He even spoke with my bank and explained why I was behind on my car payment. And this saved me getting my car repossessed..." - HR

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