48-168. Compensation court; rules of evidence; procedure; informal dispute resolution; procedure.

(1) The Nebraska Workers' Compensation Court shall not be bound by the usual common-law or statutory rules of evidence or by any technical or formal rules of procedure, other than as herein provided, but may make the investigation in such manner as in its judgment is best calculated to ascertain the substantial rights of the parties and to carry out justly the spirit of the Nebraska Workers' Compensation Act.

(2)(a) The Nebraska Workers' Compensation Court may establish procedures whereby a dispute may be submitted by the parties, by the provider of medical, surgical, or hospital services pursuant to section 48-120, by a vocational rehabilitation counselor certified pursuant to section 48-162.01, or by the compensation court on its own motion for informal dispute resolution by a staff member of the compensation court or outside mediator. Any party who requests such informal dispute resolution shall not be precluded from filing a petition pursuant to section 48-173 if otherwise permitted. If informal dispute resolution is ordered by the compensation court on its own motion, the compensation court may state a date for the case to return to court. Such date shall be no longer than ninety days after the date the order was signed unless the court grants an extension upon request of the parties. No settlement reached as the result of an informal dispute resolution proceeding shall be final or binding unless such settlement is in conformity with the Nebraska Workers' Compensation Act. Any such settlement shall be voluntarily entered into by the parties.

(b)(i) Except as permitted in subdivision (b)(ii) of this subsection, a mediator shall not make a report, assessment, evaluation, recommendation, finding, or other communication regarding a mediation to a judge of the compensation court that may make a ruling on the dispute that is the subject of the mediation.

(ii) A mediator may disclose:

(A) Whether the mediation occurred or has terminated, whether a settlement was reached, and attendance; and

(B) A mediation communication evidencing abuse, neglect, abandonment, or exploitation of an individual to a public agency responsible for protecting individuals against such mistreatment.

(iii) A communication made in violation of subdivision (b)(i) of this subsection shall not be considered by a judge of the compensation court.

(c) Informal dispute resolution proceedings shall be regarded as settlement negotiations and no admission, representation, or statement made in informal dispute resolution proceedings, not otherwise discoverable or obtainable, shall be admissible as evidence or subject to discovery. A staff member or mediator shall not be subject to process requiring the disclosure of any matter discussed during informal dispute resolution proceedings. Any information from the files, reports, notes of the staff member or mediator, or other materials or communications, oral or written, relating to an informal dispute resolution proceeding obtained by a staff member or mediator is privileged and confidential and may not be disclosed without the written consent of all parties to the proceeding. No staff member or mediator shall be held liable for civil damages for any statement or decision made in the process of dispute resolution unless such person acted in a manner exhibiting willful or wanton misconduct.

(d) The compensation court may adopt and promulgate rules and regulations regarding informal dispute resolution proceedings that are considered necessary to effectuate the purposes of this section.

Source

Annotations

1. Rules of evidence, applicability

2. Miscellaneous

1. Rules of evidence, applicability

The Workers' Compensation Court is not bound by the usual common-law or statutory rules of evidence or by any technical or formal rules of procedure. Olivotto v. DeMarco Bros. Co., 273 Neb. 672, 732 N.W.2d 354 (2007).

Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993), does not apply in a workers' compensation case where the rules of evidence do not apply. Veatch v. American Tool, 267 Neb. 711, 676 N.W.2d 730 (2004).

Although the evidentiary rules of the Nebraska Workers' Compensation Court may not be more restrictive than those of trial courts, they may also be less so. The Nebraska Workers' Compensation Court is permitted to admit evidence which over proper objection could not be introduced in a state trial court. Sheridan v. Catering Mgmt., Inc., 252 Neb. 825, 566 N.W.2d 110 (1997).

Subject to the limits of constitutional due process, the admission of evidence is within the discretion of the Nebraska Workers' Compensation Court, whose determination in this regard will not be reversed upon appeal absent an abuse of discretion. Sheridan v. Catering Mgmt., Inc., 252 Neb. 825, 566 N.W.2d 110 (1997).

The Nebraska Workers' Compensation Court is not bound by the "general acceptance" test advanced in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923). Sheridan v. Catering Mgmt., Inc., 252 Neb. 825, 566 N.W.2d 110 (1997).

The Nebraska Workers' Compensation Court is not bound by the usual common-law or statutory rules of evidence. Sheridan v. Catering Mgmt., Inc., 252 Neb. 825, 566 N.W.2d 110 (1997).

Nebraska Evidence Rules do not apply to proceedings before the Nebraska Workers' Compensation Court. Sherard v. Bethphage Mission, Inc., 236 Neb. 900, 464 N.W.2d 343 (1991).

Evidentiary rules of the compensation court may not be more restrictive than those of trial courts. Fite v. Ammco Tools, Inc., 199 Neb. 353, 258 N.W.2d 922 (1977).

Evidence which would be incompetent as hearsay in other cases is not competent under Workmen's Compensation Act. Hamilton v. Huebner, 146 Neb. 320, 19 N.W.2d 552 (1945).

Statements made by injured employee within few minutes after accidental injury which resulted in death, were admissible in evidence as part of res gestae. Perry v. Johnson Fruit Co., 123 Neb. 558, 243 N.W. 655 (1932).

Technical or formal rules of procedure do not bind the Nebraska Workers' Compensation Court other than as provided in the Nebraska Workers' Compensation Act. Armstrong v. Watkins Concrete Block, 12 Neb. App. 729, 685 N.W.2d 495 (2004).

2. Miscellaneous

The Nebraska Workers' Compensation Court Rules of Procedure may supersede or supplant the Nebraska Court Rules of Pleading in Civil Actions. Cruz-Morales v. Swift Beef Co., 275 Neb. 407, 746 N.W.2d 698 (2008).

It is a general principle that intervention is not authorized after trial and neither subsection (1) of this section nor the beneficent purposes of the Nebraska Workers' Compensation Act authorize a postaward intervention by the employer's insurer. Risor v. Nebraska Boiler, 274 Neb. 906, 744 N.W.2d 693 (2008).

No Nebraska statute grants equity jurisdiction to the compensation court. Risor v. Nebraska Boiler, 274 Neb. 906, 744 N.W.2d 693 (2008).

Sections 48-129 and 48-168, R.R.S.1943, give the Workmen's Compensation Court jurisdiction to consider the issue of joint employment. White v. Western Commodities, Inc., 207 Neb. 75, 295 N.W.2d 704 (1980).

Permission to file amended petition after decision by one judge and before rehearing before entire court was within discretion of compensation court. Faulhaber v. Roberts Dairy Co., 147 Neb. 631, 24 N.W.2d 571 (1946).