The Nevada Supreme Court Says That PPD Benefits Can Be Paid After An Employee Retires.


By Jason Weinstock on October 9, 2020
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On October 8, 2020, the Nevada Supreme Court published their decision in Clark County v. Brent Bean, 136 Nev. Adv. Op. 65 (2020). The Court took the opportunity to agree with the District Court’s reasoning to deny Clark County’s Petition for Judicial Review that permanent partial disability (“PPD”) benefits differ from temporary total disability (“TTD”) benefits, in that PPD benefits are medical benefits  “intended to compensate the injured worker for permanent physical damages caused by the industrial injury or occupational disease and not a form of disability compensation associated with lost wages.” The Court not only agreed with the Appeals Officer’s finding that the Claimant in Bean was entitled to PPD benefits but held that compensation for a retired employee’s PPD rating must be based on the wages they earned before retiring.

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Case Summary.

This is a firefighter case, where a firefighter filed a claim for industrial insurance benefits for an occupational disease after he had retired. The claimant in this case, Mr. Bean, worked as a Clark County firefighter and retired in 2011. Three years after he retired, in 2014, he was diagnosed with cancer and had part of his prostate removed. He received a 40% PPD rating and filed a claim for an occupational disease under the Nevada Industrial Insurance Act. (Certain professions like firefighters who develop cancer can file a claim for an occupational disease even after retirement.) See, NRS 617.453(6).

Clark County accepted Mr. Bean’s case but declined to pay him any benefits for the PPD rating. Clark County based their denial on a 2005 case, where the Nevada Supreme Court held that a workers’ compensation claimant is not entitled to TTD benefits for an occupational disease manifesting after retirement. See, Howard v. City of Las Vegas, 121 Nev. 691 (2005). However, in 2019 the Nevada Supreme Court held that a retired claimant was entitled to death benefits based on the wages earned immediately before retirement. See, DeMaranville v. Employers Insurance Co. of Nevada, 135 Nev. 259 (2019).

Mr. Bean appealed Clark County’s refusal to pay him benefits and won before the Appeals Officer. Clark County then appealed the Decision and Order to District Court and sought a Petition for Judicial Review. The District Court declined the Petition for Judicial Review and thus the Appeals Officer’s Decision and Order would stand. Clark County then appealed to the Supreme Court of the State of Nevada.

In this case, the Supreme Court stated, “We conclude that DeMaranville’s analysis of compensation for death benefits is directly applicable here because the regulation governing the calculation of compensation for both types of benefits [TTD and PPD benefits] is the same. Furthermore, neither death benefits nor permanent partial disability benefits are statutorily limited based on the amount of work missed, and both are meant to compensate an employee who suffers death or permanent disability resulting from their employment.”

The Court affirmed the District Court’s denial of Clark County’s Petition for Judicial Review, as the appeals officer correctly found that the retiree was entitled to permanent partial disability [PPD] benefits based on the wages he was earning at the time he retired.”

Another great decision from the Supreme Court of the State of Nevada!

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

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New Workers’ Compensation Provider Lists


By Jason Weinstock on October 2, 2020
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Previously, I wrote a blog about SB 381, which was a bill passed in the 2019 legislative session that changed how workers’ compensation developed and published their provider lists. SB 381 was codified in the Nevada Revised Statutes at NRS 616C.087. This new statute dictates how many doctors for each specialty an insurer must has have on their provider list, where the workers’ compensation insurers must publish their lists, and how doctors willing to treat injured workers may be added or removed from the insurer’s list.

A provider list is a list of doctors that a workers’ compensation insurance company has of doctors who they authorize to treat injured workers insured by their insurance company. Almost every insurance company or self-insured employer has a provider list.

The deadline for workers’ compensation insurers to send their new provider lists, which comply with the doctor per specialty requirement of NRS 616C.087, was October 1, 2020. Insurance companies had to send these lists to the Division of Industrial Relations (“DIR”) by then and the DIR would then publish these lists on their website for all to see. Previously, these lists were only given when requested directly from the workers’ compensation insurance company and were often frequently changing. Those days are now over!

Failure of a workers’ compensation insurance company to publish a list to the DIR by October 1, 2020, means that an injured worker can select and treat with physicians on the DIR’s master list, which includes all physicians in Nevada that are authorized to treat injured workers.

A list of all the workers’ compensation insurer’s provider lists can be found here. A list of the DIR’s master provider list can be found here.

Give me a call or send an email for a free consultation if you have questions or concerns about your Nevada workers’ compensation claim or workers’ compensation doctors / insurance company provider lists.

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Timeline for Filing a Workers’ Compensation Claim


By Jason Weinstock on September 4, 2020
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A quick look at the timeline for filing a workers’ compensation claim in Nevada. Contact me for a free consultation or case review.

Timeline: Filing a Workers Compensation Claim in Nevada
Timeline Infographic: Filing a Workers Compensation Claim in Nevada

 

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3 Things to Check to Determine If Your PPD Award / Workers’ Compensation Settlement Is Correct.


By Jason Weinstock on August 14, 2020
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Frequently I am asked by potential clients and current clients whether there is a settlement at the end of their workers’ compensation case or how much their case is worth. This question is often hard or impossible to answer. Sometimes, I can estimate whether I think you are likely to have a permanent partial disability (PPD) award and ballpark what I think it might equate to. However, your PPD award or workers’ compensation settlement is a figure that is based on your rating percentage, your age, your average monthly wage, and a figure from the applicable annuity table. For purposes of this blog a PPD award and a workers’ compensation “settlement” are the same thing. Below are 3 things to check to determine if your PPD award / workers’ compensation settlement is correct.

3 Things to Check to Determine if your PPD Award Workers / Compensation Settlement is correct
3 Things to Check to Determine if your PPD Award Workers / Compensation Settlement is correct

  • Is your average monthly wage correct?

Your average monthly wage is a figure that is determined by your workers’ compensation adjuster, which they use to calculate your temporary total, temporary partial, permanent partial, and permanent total disability benefits.

The workers’ compensation insurance adjuster will request your wage information from your employer through a D-8 form. There are two ways to calculate average monthly wage, through a 84 days and 1 year wage history. The workers’ compensation adjuster should also factor in any concurrent (second job) employment you had at the time of the injury. The adjuster must use the highest average monthly wage figure.

The higher your average monthly wage the higher your PPD award / workers’ compensation settlement.

  • Did the insurance company use the correct annuity table?

An annuity table is a set of figures that conform to a person’s age, the inflation rate, interest rates, and life expectancy. These tables are created by an actuary and adopted by the Division of Industrial Relations (DIR) every year on July 1st. The workers’ compensation insurance company must use the table that has been adopted by the DIR at the time the injured worker accepts the PPD award. Meaning if your workers’ compensation adjuster made the PPD award offer on June 28th and you accept the award on July 2nd they must recalculate the PPD award using the new tables. The current annuity table can be found here.

  • Did the rating doctor give you the correct PPD percentage?

At the end of all your treatment for a work-related injury your workers’ compensation doctor will state whether you have a ratable impairment. A ratable impairment means you have a lasting effect from the injury you suffered at work, otherwise known as a permanent disability. A permanent disability does not always equate to the same thing as a disability in the eyes of, for example, social security disability. In workers’ compensation this permanent disability if established using the AMA Guides to the Evaluation of Permanent Impairment. Nevada uses the 5th Edition of the AMA Guides to the Evaluation of Permanent Impairment. Your percentage of impairment can be determined by your symptoms, your range of motion, and the type of treatment you had.

Common errors made my rating doctors include incorrect apportionment (subtracting from the total impairment for possible prior injuries), not evaluating all accepted body parts, and not thoroughly examining the medical records.

The higher the impairment percentage the higher the PPD award / workers’ compensation settlement.

Give me a call or send an email for a free consultation if you have questions or concerns about your Nevada workers’ compensation claim or your PPD award / workers’ compensation settlement.

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If I Have A Workers’ Compensation Claim, Can I Find a New Job?


By Jason Weinstock on August 7, 2020
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A lot of clients have this question. Frustration often sets in immediately after the injury, but can be made worse if the injured employee feels she is not being treated fairly at work, is not receiving TTD (pay for being out of work) benefits, receiving TTD benefits, or their employer is not following their work restriction. Many times I have heard from clients that their employer/ co-workers are harassing them about being injured, that they cannot survive on 66 and 2/3% of what they were making, or that their employer is requiring them to work beyond the restrictions given by their doctor. These problems led to the question, “can I find a new job?”

In short, my answer is usually “yes.” However, I always have to warn my clients that looking for a new job requires an understanding of three very important things: 1) if you quit your job, you are no longer entitled to TTD benefits; 2) your new job must fall within your work restrictions; and 3) you need to let the workers’ compensation insurance company know about the new job.

No longer eligible for TTD benefits?!

An injured employee is entitled to TTD benefits when their employer either has no light duty work, that complies with the doctor’s work restrictions, or when the injured employee is taken off work completely for a period of time by the doctor. TTD benefits are paid at 66 and 2/3% of the injured worker’s average monthly wage. The benefits continue to be paid until either the doctor releases the injured worker to work “full duty” or until the employer offers a light duty job position that complies with the doctor’s work restrictions.
If an injured employee voluntarily takes themselves out of the work force by either quitting or going on FMLA leave, the workers’ compensation insurance adjuster can stop TTD benefits.

My new job has to know I was injured at work?!

Yes. If an injured worker gets a new job, while they have work restrictions from a workplace injury at another job, the injured worker cannot work outside of those work restrictions for a new employer. An injured worker must notify the new employer of any work restrictions they may have to be sure the new job will not exceed them. Working outside your work restrictions can negatively impact a workers’ compensation claim in the following ways: 1) give an adjuster reasons to deny further treatment, 2) give an adjuster a reason to issue claim closure, and 3) give an adjuster a reason to pursue a claim for workers’ compensation insurance fraud with the Attorney General’s office.

I need to tell my adjuster about the new job?!

Yes. The workers’ compensation insurance company needs to know about the new job for two reasons, 1) so that they can stop TTD benefits, and 2) so they can confirm you are working within your work restrictions. An injured worker cannot both collect TTD benefits and work a new job, doing so may cause an adjuster to file a claim for fraud.

An example of when an injured worker can look for/ take a new job is:

A construction worker gets hurt at work and is placed on restrictions by a doctor making him no longer able to perform his typical work duties. The injured construction worker shows his work restrictions to his employer, who then says he has no light duty work. (The injured construction worker then is eligible for TTD benefits.) The injured construction worker finds an add for a call center that pays more than his TTD benefits do. The injured construction worker interviews with the call center and informs them that he is only allowed light duty work and cannot lift more than 10lbs. The call center says that is fine. The injured construction worker then quits with the construction company and starts working for the call center. The injured “former” construction work then calls and notifies his workers’ compensation insurance adjuster that he is working a new job that falls within his work restrictions.

Give me a call or send an email for a free consultation if you have questions or concerns about your Nevada workers’ compensation claim or about finding a new job while receiving workers’ compensation benefits.

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Nevada Workers’ Compensation Benefits for Injuries After July 1, 2020 (FY 2021).


By Jason Weinstock on July 10, 2020
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For Fiscal Year 2021, which began on July 1, 2020, the maximum average monthly wage used to calculate workers’ compensation benefits has increased to $6,275.73. This is applicable to injuries on claims filed after July 1, 2020. 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 $4,183.82 in compensation benefits that month. The usual 14-day payment will be $1,924.16. 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 $137.44

View: Average Monthly Wage for Fiscal Year 2021 Increases!

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 she 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, do not neglect to do something about it, even if you are not 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 more money, and you will want that average monthly wage to be used. 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.

Remember there are two ways to calculate average monthly wage: 1) 84 days wage history, and 2) an one-year’s wage history. The insurance company must use which ever is higher, when establishing your average monthly wage for workers’ compensation benefits. It does not 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 have questions or concerns about your Nevada workers’ compensation claim or average monthly wage and how it effects your settlement.

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New Treating Panel of Workers’ Compensation Doctors is Now Posted!


By Jason Weinstock on July 3, 2020
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In a previous blog post I talked about SB 381, which was passed in the 2019 legislative session. SB 381 created some much-needed changes and added regulation in how the Division of Industrial Relations (DIR) compiles their treating provider list. Prior to SB 381 the DIR’s treating provider list had over 4,000 providers, 50% of which were either not practicing anymore, not seeing workers’ compensation patients anymore, or were deceased. SB 381 required the DIR to have doctors complete a new application and then develop a new master list for insurance companies to use in creating their lists. July 1st has arrived, and the new treating panel of workers’ compensation doctors is now posted! Click here to see the new DIR Treating Panel of Providers and Chiropractors list.

 

What does this mean for workers’ compensation insurance companies?

The race is on! Workers’ compensation insurance companies now have until October 1, 2020, to complete their provider lists using the doctors on the DIR’s list. SB 381 also requires insurance companies to have at least 12 providers/doctors per specialty. The specialties include orthopedic surgery (which has 9 subcategories all of which must have 12 providers/doctors), neurosurgery, neurology, cardiology, pulmonology, psychiatry, pain management, occupational medicine, general practice, and chiropractic. All other specialties/disciplines must contain at least 8 provider/doctors unless the DIR’s list contains less than 8.

This is a huge change for insurance companies that for years were getting away with only having 2 or 3 doctors in each specialty. Once the insurance companies make their list, which must be complete by October 1, 2020, they must then send their lists to the DIR. The DIR will then publish these lists on their website for all to see. These lists will lock the providers/doctors “in,” as insurance companies will no longer be able to remove doctors without one of six reasons laid out in SB 381. The days of insurance companies removing doctors overnight because they did not like what the doctor was saying are over!

What does this mean for injured workers?

More doctors, more choice! Injured workers will have more doctors to choose from within the first 90 days of the claim. Injured workers will be able to go online and see exactly who is on their insurance company’s provider list. NRS 616C.090 gives injured workers the right to choose their doctor for a transfer of care within the first 90 days of their claim, and now they will have at least 12 doctors to choose from for most specialties.

Is the new treating doctor list perfect?

No. There are still excellent doctors that did not make the list and efforts are underway to try to get them added. I expect the DIR’s list will change over the next few weeks as more doctors are added. There are still a lot of the same names and doctors that I am not a huge fan of, but this is a great first step. I am excited for the future and I believe injured workers should be too!

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

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New 2020 Actuarial Tables Released On June 23, 2020, Go Into Effect On July 1, 2020.


By Jason Weinstock on June 26, 2020
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In 2015 Attorney Virginia Hunt, along with a group of other claimant’s attorneys, determined that the Division of Industrial Relations (DIR) had been slacking on their statutory duties to update the actuarial annuity table used in the calculation of permanent partial disability (PPD) awards. It was determined that the actuary table being used had not been updated for something like over 15 years. This led to claimant’s getting much less than they deserved. After Ms. Hunt passed other attorneys continued the fight and the DIR has been updating their tables ever since. The new 2020 actuarial tables released on June 23, 2020, go into effect on July 1, 2020.

What does this mean for injured workers?

PPD awards should increase! With the interest rate dropping from 2.98% in 2019 to 1.46% in 2020, injured workers will see an increase in their awards. These actuarial tables are used in combination with an injured worker’s average monthly wage, age, and percentage of impairment to calculate the PPD award.

It is necessary to have the actuarial tables and the correct statutory formula to correctly calculate the award. (See DIR forms 9a and 9b).   Injured workers with the same percentages of impairment for the exact same injury will receive different PPD awards depending on how much money they were making at the time of their accidents, and how old they are.

The PPD award needs be calculated at the time it is accepted. Meaning if you received your award offer letter on June 26, 2020, but do not accept it until July 5, 2020, then the insurer will need to recalculate the award using the July 1, 2020, actuarial tables. The day the award is accepted does not matter; it is the month in which it is accepted that is important.

The new actuarial annuity table can be found here.

An injured worker may accept a PPD award in a lump sum or may elect to receive the award in installments until she is 70 years old.  Awards taken in a lump sum are reduced to present value. If the injured worker’s impairment was greater than 30%, only the equivalent of a 30% PPD can be taken in a lump sum.  The percentage over 30% is paid in installments.

Although the PPD percentage is not based on an injured worker’s ability to return to work, the percentage does govern the length of a retraining program that can be offered if the injured worker is entitled to vocational rehabilitation services.  (See this blog on vocational rehabilitation for more information.)

Please note that this is only a summary of how permanent partial disability awards are determined in Nevada.  Pertinent statutes and regulations are:  NRS 616C.100, NRS 616C.490, NRS 616C.495, NRS 616C.110, NAC 616C.1162, NAC 616C.103.  Many attorneys offer a free review of a PPD rating report for signs of obvious errors.

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

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Workers’ Compensation COVID-19 Update (6/5/2020):


By Jason Weinstock on June 5, 2020
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On June 4, 2020, the Senior Appeals Officer at the Nevada Department of Administration, Appeals Division, released a statement regarding the Department of Administration’s plan to reopen. June 4, 2020, also marked the start of casino reopening, a major step in the economic recovery for Nevada. The Senior Appeals Office is putting in place a 5-phase plan to reopen the Department of Administration, that puts safety of their employees, attorneys, and injured workers to the forefront. Below is a recap of the workers’ compensation COVID-19 update issued by the Senior Appeals Officer.

Phase 1 (The Department of Administration is currently in this phase.)

    • No in-person hearings or appeals.
      • Only telephonic hearings and appeals.
    • All documents must be submitted/filed via USPS.
    • Requests for hearings before the Hearing/Appeals Officers may be filed by email at hearingsandappeals@admin.nv.gov.
    • Department of Administration staff are taking extreme precautions to sanitize equipment and continue to maintain following social distancing guidelines.

Phase 2 (Estimated effective date 6/22/2020.)

    • Documents can be filed at the Victims of Crime office (Suite 210-A) inside the Department of Administration (2200 S. Rancho Dr., Las Vegas, NV 89102).
      • All persons entering the building are required to wear a mask and may be subject to infrared thermometer checks.
    • All hearings before the Hearing Officers will continue to be done telephonically.
    • All hearings before the Appeals Officers will continue to be done telephonically, unless a request to hold a video conference hearing is granted.
      • Currently, only one courtroom has the capability to conduct video hearings.

Phase 3 (Estimated effective date is 30-45 days after Phase 2.)

    • In-person hearings will be available by request only, for hearings before the Appeals Officers.
      • This is contingent upon successful installation of protective Plexiglass barriers at the lobby of the front counter.
      • Only 2 courtrooms will be open for in-person hearings and participants are to wait in their cars or parking lot until called by the appeals officer.

Phase 4 (Estimated effective date is 30-45 days after Phase 3.)

    • Documents and requests for hearings can return to being filled at both the Hearings and Appeals office front counters.
      • Contingent on Plexiglass being installed at both front counters.
    • In-person hearings before the Hearing Officers will be available by request only.
      • Only 2 hearing rooms will be available in both the morning and afternoon.
      • Participants are to wait in their cars or parking lot until called by the hearing officer.

Phase 5 (Estimated effective date is 30-45 days after Phase 4.)

    • Both lobbies for Hearings and Appeals are reopened to allow participants to wait inside the building for their hearings.
      • Seating will be arranged to maintain social distancing.
    • It will be considered to open additional courtrooms/hearing rooms for in-person hearings.
      • They Department of Administration will try to implement a system that allows counsel to choose between an in-person, video, or telephonic hearing when notices of hearing are sent out.

Though many claimants, attorneys (on both sides), and hearing/appeals officers would like things to return to “normal,” I applaud the Senior Appeals Officer for giving some guidance and providing clearer guidelines to a reopening and “new normal.”

The Department of Administration is still behind in scheduling hearings and appeals that were filed, as there were over 1500 hearings and appeals filed during the closure. Patience and understanding is going to be necessary as we all await hearing and appeal dates.

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

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