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:
- access may cause contaminations in violation of the United States Department of Agriculture contamination requirements, and
- 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.
