What Does Workers’ Compensation Being An Exclusive Remedy Mean?

By Jason Weinstock on October 18, 2019

All too often I hear from client’s “I don’t want to sue my employer… I love where I work!” Occasionally, I will also hear, “I hate my employer… this is all their fault, can I sue them?” My response to both of these clients is the same. In Nevada, an injured worker can not sue their employer for injuries that occurred in the course and scope of their employment. The injured workers’ remedy is to file a claim for workers’ compensation through their employer’s workers’ compensation insurance policy.

Workers’ Compensation is an Exclusive Remedy.

In most states, including Nevada, a workers’ compensation claim is an injured workers’ only  remedy for injuries that occurred at work. This means you cannot sue your employer for negligence, even if a co-worker pulled the ladder out from under you or if your employer had you using old busted tools. It is a no fault system. Now, this is not to say that one can go and smash his hand with a hammer in an attempt to get a settlement. The injury must still be unforeseen, sudden, and tangible. However, the injured worker will not need to show that some duty of care was breached or that the injury was caused by someone else.

The negative side effects of an inability to sue an employer for negligence include no punitive damages and no recovery for pain and suffering. A workers’ compensation claim is an insurance claim for medical and monetary benefits for injuries that occurred at work. The purpose of workers’ compensation insurance is to have medical treatment paid for, to receive compensation for any time missed from work, and to receive some compensation for any permanent impairment that may affect future employment.

A positive side effect includes the ability for employers and injured workers to rest easy knowing that this shouldn’t create animosity in the workplace. Although, the reality of it is filing a claim can occasionally cause animosity, it is important for both sides to remember that this is a claim for insurance benefits from the insurance company.

In Nevada, every employer with one or more employees is required to have workers’ compensation insurance. Workers’ compensation insurance not only protects an injured worker, but their employers as well.

Give me a call or send an email for a free consultation if you if you have questions or concerns about filing a workers’ compensation claim.

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Nevada Workers’ Compensation Benefits for Injuries After July 1, 2019 (FY 2020).

By Jason Weinstock on October 14, 2019

Average Monthly Wage for Fiscal Year 2020 Increases.

For Fiscal Year 2020, which begins on July 1, 2019, the maximum average monthly wage used to calculate workers’ compensation benefits has increased to $6,096.60. This is applicable to injuries on claims filed after July 1, 2019. If you have a claim established already, this increase will not affect your benefits. The maximum temporary total disability benefit in Nevada is 66 2/3 of the maximum average monthly wage. That means that if the injured worker is off work due to the injury for a month, or her employer does not have light duty work within the doctor’s restrictions, she will receive $4,064.40 in compensation benefits that month. The usual 14-day payment will be $1,869.28. Each day in the pay period is counted, including Saturdays and Sundays, when calculating compensation benefits. The daily rate under the new maximum average monthly wage is $133.52.

The average monthly wage used to calculate off work benefits is also an important factor in determining how much money an injured worker will received if he has a permanent impairment as defined by the criteria in the AMA Guides to Evaluation of Permanent Impairment. If the adjuster sends you a letter with your average monthly wage, and it seems too low, don’t neglect to do something about it, even if you aren’t losing time from work. You could lose a significant amount of money by not making sure that the average monthly wage is as high as it should be when it is time to calculate a PPD award.

The average monthly wage at the time of the injury also controls the amount of compensation benefits if the claim is ever reopened in the future. Your original injury may have occurred ten years ago when you were making a lot less money. If you need to reopen your claim now and will be out of work again for another surgery, your benefits will be based on what your income was 10 years ago. It doesn’t cost anything to check with a reputable attorney about whether your compensation benefits are calculated correctly and whether you should be proceeding on a reopened claim as opposed to a new claim.

Give me a call or send an email for a free consultation if you think your average monthly was miscalculated.

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Nevada Workers Compensation Law NRS 616C.145

By Jason Weinstock on October 9, 2019

Claimants love it and insurers don’t… the famous/infamous NRS 616C.145.

Prior to the 1990’s Nevada workers’ compensation claims used to be liberally construed in favor of the injured worker, claims would move much faster, and the whole process was much less burdensome than it is today. It was in the 1990’s that the wind shifted and injured workers’ started to get the colder end of the deal. The language in the statute that mandated that claims be “liberally construed in favor of the claimant” was removed and so were the days of “no litigation claims.”

In 2017, the legislature passed AB 458, which is now known as NRS 616C.145 (“.145”). 145 is the injured worker’s first reminder of the days prior to the 1990’s in a long time. 145 gives the injured worker some ability to gain a little “say-so” in their claim management. It allows the injured worker to request an independent medical evaluation (“IME”) once a year if a treatment plan is at issue, scope of the claim is at issue, or if the insurer sends them to an IME of their own. There are other reasons and ways to obtain an IME through 145, but treatment and scope are the big ones. 145 also allows an injured worker who’s claim is being closed without a permanent partial disability rating to obtain a permanent partial disability (“PPD”).

Now you may be thinking, “This sounds great, who wouldn’t love 145?” The answer is insurers, employers, and workers’ compensation defense attorneys. The reasoning is that the insurer or third-party administrator must pay for it and there is no defense. The injured worker is entitled to one once a year if one of the statutorily prescribed issues is present.

From the standpoint of an attorney who only represents injured workers, I love 145. It in no way makes the Nevada workers’ compensation system a fair one, but it does level the playing field just slightly. In my opinion it has the ability to speed up claims and help resolve litigation. This is not to say that a 145 IME or 145 PPD always works in favor of the injured worker. Whether or not to request a 145 IME or a 145 PPD is something an injured worker should discuss with a knowledgeable Nevada workers’ compensation attorney.

Give me a call or send an email for a free consultation and I will let you know if I think a 145 IME or 145 PPD is appropriate in your case.

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Why is the infamous PPR (Physician’s Progress Report) so important?

By Jason Weinstock on October 7, 2019

The “PPR” serves several very important purposes. The PPR (Physician’s Progress Report) can be viewed as an injured worker’s report card from their treating physician. Insurance adjusters often get these reports directly from the treating doctor, however, injured workers can also get a copy after each appointment with their doctor. It is my recommendation that you do request one before you leave the doctor’s office!

What does the PPR tell you?

The PPR contains a lot of important information that dictates many aspects of an injured workers’ claim. For example, the PPR indicates: (1) when your next appointment is, (2) work restrictions, and (3) the progress of your treatment. Insurance adjusters use PPRs to determine eligibility for temporary total disability benefits (TTD), and to determine whether or not more treatment needs to be authorized. Employers use PPRs to comply with work restrictions. You can use PPRs to enforce your rights to receive TTD benefits, to work in an environment conducive to your recovery, to stay on top of your treatment, and as a reminder of further appointments.

Why is the PPR even more important to you near the end of your treatment?

Arguably, the most important purpose the PPR can serve is to indicate your entitlement to a permanent partial disability (PPD) rating. On the PPR is a box for a doctor to check when you have reached maximum medical improvement (MMI), meaning no further treatment is required. In addition to the MMI box is another box for the doctor to check if he believes you have a ratable impairment. This box guides the insurance adjuster’s determination of whether or not to schedule you for a PPD rating. It is this rating that evaluates you for any permanent impairment entitling you to further monetary benefits. Further, the PPR can contain permanent work restrictions that may entitle you to vocational rehabilitation.


In short the PPR is important because it is the guidepost for many decisions that are made in regards to your benefits, both current and future, and it informs you of your treatment progress/future appointments.

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I filed a workers’ compensation claim, do I need an attorney?

By Jason Weinstock on October 4, 2019

Not necessarily! If your claim is running smoothly, you are getting the treatment you need, and you are receiving all your benefits, then proceed on your own. However, there are benefits to having an attorney that is knowledgeable regarding workers’ compensation law.

What benefits are there in having an attorney’s assistance?

A knowledgeable workers’ compensation attorney can provide an injured worker with numerous benefits and assist in making sure their claim runs as smooth as possible. Injured workers can use an attorney as sort of a case manager. Attorneys can often expedite communications with adjusters, request necessary medical records, and ensure the law is being applied correctly. Workers’ compensation attorneys are often experienced in physician selection, and can assist you in getting the best possible care. During the closing of a claim an attorney can advise a client on when to obtain a PPD (permanent partial disability), if one is not being offered, and review the settlement calculations to ensure the injured worker receives the proper amount.

Some attorneys attend rating appointments with their clients to make certain that proper procedures are used (my office always attends the rating with the client). An attorney’s knowledge of the law is useful in requesting a change in doctors, appeals, making sure benefits are being paid to injured workers that have been taking off work, and in meeting deadlines.

Is an attorney ever necessary in a workers’ compensation claim?

Only in second level hearings or in District Court. Many decisions made by an insurance adjuster can be appealed, through a process called a hearing. If an injured worker receives a determination by an insurance adjuster which they do not agree with (claim denial, refusal to transfer care, etc.), they must file a request for a hearing. The first level hearing can be done without an attorney with the injured worker representing themselves in front of a hearing officer. If the decision of the hearing officer is unfavorable, the injured worker can file an appeal. Insurers are almost always represented at the first and second level hearings, having an advocate on your side can be very helpful at these hearings.

A second level hearing is an appeal of a hearing officer’s decision. These are more formal proceedings in which an advocate is typically required. An injured worker may represent themselves (pro se), but will find that the appeals officer will request that they retain an attorney (often the appeals officer will give an application for the Nevada Attorney for Injured Workers). This is because the insurance company always has an attorney present at these hearings and it is the injured workers’ last shot at a favorable decision from an administrative judge.

There are timelines for filing a request for a hearing at both the hearing and appeal level, so it is important to stay aware of dates on letters and hearing officer decisions.

I pride myself on being upfront and honest with my clients. Give me a call or send an email for a free consultation and I will let you know if I think you need an attorney or should continue on your own.

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Cost of PPD increased

By Jason Weinstock on February 23, 2016

In most cases, it is the Insurer who is responsible for paying the cost of a Permanent Partial Disability exam. However, in some cases, the burden falls on the injured worker. Unfortunately, this burden just got a bit heavier for injured workers to carry in these rare situations.

Effective February 1, 2016, the cost of a PPD evaluation for 2 body parts rose from $754.62 to $775.75.

Two of the most common reasons an injured worker may have to pay for a rating out-of-pocket include situations in which the insurer is attempting to close the claim without a rating, and when the injured worker disagrees with the resulting percentage from a prior rating evaluation.

If you believe your claim has been unfairly closed without a rating, or that you had an inaccurate rating evaluation, consult an experienced attorney in order to weight the pros and cons of paying the hefty out-of-pocket expense necessary to get a rating yourself. I will review your PPD report and offer free of charge. Call my office to schedule a free consultation.

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What happens when your FCE is invalid?

By Jason Weinstock on February 10, 2016


An FCE is a Functional Capacity Evaluation that takes about 2-3 hours at a physical therapist’s office selected by the adjuster to help the treating doctor determine whether the injured worker should have permanent work restrictions.  More and more treating physicians are requesting that they be done before the doctor gives permanent work restrictions.   Unfortunately, some doctors don’t understand (or don’t want to understand) that they have the final authority as treating doctor to agree or disagree with the FCE findings.

If the FCE comes back invalid, most doctors feel compelled to return the injured worker to full duty work even though it is obvious that the injured worker is incapable of doing full duty work.  I’ve been told by one facility that does many FCE’s that almost a third of its evaluations are invalid, because the injured worker did not pass 70% of the validity criteria necessary to make the test valid.   The validity criteria are supposedly a measure of whether a person is giving a legitimate effort to do the tasks asked by the FCE examiner.  For example, if the injured worker does not show an increase in blood pressure but reports that it is too difficult to  lift a certain weight, the test may be regarded as invalid.  While these FCE examiners swear by their validity criteria, there are legitimate reasons why a person may have invalid results.

Claimants’ attorneys compare what facilities routinely showed invalid FCE evaluations.  Repeat FCE’s done at other reputable facilities often show valid efforts.  Of course, it takes time and money to schedule a repeat FCE that should then be sent to the treating physician for realistic permanent work restrictions.  Meanwhile, the adjuster has stopped compensation checks based on the prior full duty work release, and an appeal must be filed.

If you have an invalid FCE, the sooner you have your attorney file an appeal and schedule a repeat FCE at a different facility, the faster you compensation checks can be restored.

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Mileage reimbursement decreased in 2016

By Jason Weinstock on January 12, 2016

Effective January 1, 2016, the reimbursement rate for workers compensation related travel has been decreased significantly from 57.5 cents per mile to 54 cents per mile.

Injured workers are eligible for mileage allowance under NAC 616C.150. Mileage is eligible for reimbursement if the injured worker

gas station

  • is traveling to a doctor’s appointment related to his or her workers compensation claim (this includes physical therapy); and
  • is using a private vehicle; and
  • travels 20 miles or more one way; or
  • travels 40 miles or more within one week

In order to be reimbursed for eligible travel expenses, the injured worker must fill out a D-26 ‘Application for Reimbursement of Claim Related Travel Expenses’ and submit it to the adjuster. Mileage expenses must be submitted within 60 days of the travel date.

There are a couple of things you can do to make reimbursement as simple as possible for yourself, as well as your adjuster.

  • Fill out one reimbursement form for each month. Submitting multiple forms at separate times throughout the month makes it more difficult for your adjuster to calculate the expenses, and may delay your reimbursement check;
  • Use MapQuest or Google Maps to calculate the mileage. Your adjuster will double check the distance using one of these sites;
  • When following up with your adjuster for mileage reimbursement check, have a copy of the request on hand. Knowing the dates that the request covered will help your adjuster know exactly which expenses you are referring to. Keep in mind that the insurance company has 30 days to issue a mileage reimbursement check. Generally, the check goes out in the mail the day after it is issued.
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Occupational Illnesses Frequently Denied by Insurers

By Jason Weinstock on January 7, 2016

It isn’t always clear what the difference between a work-related illness and  an illness that doesn’t originate in work activities but is made worse when the employee must try to work.    Even when it is obvious and doctors directly report that an illness is caused by an employee’s particular work duties, you can count on most workers’ compensation insurers and their administrators to deny the claim.  The reasons for denial of these occupational illness claims cited by administrators in their denial letters often make no sense.  It is as if administrators are not aware that in addition to work injures  caused by specific accidents that diseases caused by work are often compensable too.

Some occupations have coverage for diseases that are not covered under workers’ compensation law in Nevada.  For example, police officers and fire fighters are specifically allowed coverage for heart disease, lung disease, some cancers, and other illnesses that have been legally presumed to be caused by their work.  However, even when a specific law allows benefits, police officers and fire fighters often have a fight on their hands to get medical care and compensation benefits for an illness presumed to be caused by their work.

Yesterday I had a conversation with a local hand surgeon who has been treating patients for several decades.  We talked about how carpal tunnel syndrome was routinely accepted ten years ago  as an occupational illness by industrial insurers and hearings and appeals officers.  Then the tide shifted and insurers started denying most claims.  Some of those denials were based on the American Medical Associations’ view that carpal tunnel syndrome was not likely caused by only repetitive  hand or wrist motion at work.  However, he and I agreed that whether  claims for repetitive motion hand and elbow problems are accepted or denied has more to do with what insurers arbitrarily decide will be designated as an occupational illnesses than what medical science shows about the cause of these problems.

Here is the link to an interesting article about the plight of an ill employee and his family as they fought to get his occupational illness claim accepted.

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Low Back Pain is Leading Cause of Occupational Disability

By Jason Weinstock on December 23, 2015

back dr

According to the Department of Labor, low back pain accounts for one-third of all occupational mesculoskekletal injuries and illnesses resulting in work disability.  A recent article in the Journal of Occupational and Environmental Medicine, December 2015,  states that two thirds of low back pain cases return to work within 1 month, but a substantial number (17%) experience work disability for 1 to 6 months, and 7% for 6 months or longer.  The article goes on to examine the length of disability and medical costs with regard to various states’ workers’ compensation policies.  While the study may have some interest for those concerned with various states’ laws on medical provider choice, it has less to offer readers most interested  in treatment of low back pain with length of work disability or medical costs.


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