For those people who want or who must represent themselves at the first level of hearings, you need to read the Rules of Practice. These are the rules that the hearing officers expect attorneys and hearing advocates to know when they appear for a hearing. Although the hearing officers do not expect unrepresented injured workers to be familiar with the Rules of Practice, I suggest that you read them so that you have a fighting chance in an arena where you don’t know how the game is played. There really is a learning curve and a need for experience when appealing an adverse determination by your adjuster. Certainly anyone can read NRS Chapters 616 and 617 and the regulations and the hundreds of court cases over the years from the Nevada Supreme Court that interpret these laws. But knowing how hearings and appeals officers decide particular issues is gained only by making hundreds of appearances at hearings. With that said, if you do intend to represent yourself at this initial appeal hearing, here’s a few tips to help you:
1. Stick to the issue when arguing your point
If you are appealing the insurer’s average monthly wage calculation, for example, the hearing officer won’t let you talk about bad medical care or late compensation checks. You would need to file a separate appeal for each adverse determination by the insurer.
2. Bring two copies of any documents you think prove your point
Again, if the issue is the average monthly wage calculation, bring two copies of your paychecks that go back one year prior to the date of your injury, or paychecks showing wages from a concurrent employer before the accident, or excused medical absences for the days you want excluded when calculating your average monthly wage. Put a cover sheet over your documents with your name, claim number, hearing number from your notice of hearing, date and time of your hearing, and then number your documents. One copy will be for the hearings officer and one copy for the attorney or hearing advocate representing the insurer. If the issue is the percentage of your PPD, you will probably need to obtain a second rating and have the report at the time of the hearing. Be sure to follow the procedure for obtaining a second rating, and copy the DIR assignment so that the hearing officer knows that your second rating was from the DIR rotating list. Also attach a copy of the invoice and your payment for the rating so that you can request reimbursement.
3. Your testimony will not be sufficient to overcome an adverse medical report
If the issue you are appealing is the closure of your claim, and you think you need more medical treatment, it is highly unlikely that your simply telling the hearing officer how much you still hurt will reverse the insurer’s determination. You will need to go to a doctor on your own, managing to use your private insurance to pay for the visit, or paying out of pocket yourself. That doctor will have to write a report stating that you still need more medical care and be specific about what is needed. The doctor’s report will be more persuasive if you give the doctor a copy of your medical records on the claim so that he or she can reference the treatment that you have already had when making a recommendation for additional treatment. Likewise, your testimony that you aren’t able to return to your pre-accident job isn’t going to result in the hearing officer ordering that your benefits be reinstated without some medical reporting that supports your contention that you can’t do your job anymore.
4. Be professional to the opposing advocate or attorney
It is the job of the person sitting across the table from you in the hearing room to convince the hearing officer that your appeal should be denied. Do not get into a heated argument with that person. Instead, focus on what your points were that you need the hearing officer to consider. Don’t let the opposing attorney distract you from the argument you prepared. Be professional by being prepared with notes of your main points and page references to the documentary evidence you have given to the hearing officer.
5. Ask for a minute to review the insurer’s documents
The rules of practice require the insurer to copy relevant documents from your claims file, and if requested by the opposing attorney to provide you with a copy before the hearing. However, the way it really works is that the attorney for the insurer will hand you a copy of their documents as you sit down for the hearing when your case is called into the hearing room. I usually ask the opposing attorney to give me a copy as we are waiting for the case to be called so that I can read it before the hearing. The clerk at the sign-in sheet can help identify the opposing attorney or advocate in the waiting room so that you may approach that person and ask for their evidence packet. Assuming you don’t have a chance to get the packet before you are ushered into the hearing room, you can ask the opposing attorney whether there are any new documents from the claims file that you might not have seen yet, and if so, what those pages are so that you may quickly read them prior to the start of the hearing. Ask the hearing officer for two minutes to read those few pages, but don’t expect the hearing officer to give you more than a minute or two.
6. Don’t expect a decision at the time of the hearing
Most hearing officers don’t want to make a ruling when the parties are in the hearing room. They want to avoid having to hear comments about the ruling or attempts at more argument by whatever side loses the appeal. The hearing officer will typically take about ten days to send a written decision to the parties listed on the certificate of mailing. If you moved after you filed your Request for Hearing form, give the hearing officer your new address.
7. You may testify by telephone
If you cannot testify in person at your hearing, be sure that you make it clear on your Request for Hearing form the phone number where you can be contacted. Hearings do not always go on the scheduled time. The hearing won’t take place before your scheduled time, but if the hearing officer is running behind with her calendar, your hearing might not be called for 30 minutes or even an hour after the scheduled time.
8. Be aware of the shorter 30-day time for filing an appeal to the next level
When you get the decision of the hearing officer in the mail, if you lost your appeal, you will be given a form to request an appeal at the Appeals Officer Division. This form will also inform you that you may request that the Nevada Attorney for Injured Workers represent you at this next hearing. At this point you need to decide whether you want a private attorney who you will pay a contingency fee on any permanent partial disability award or a fee on any retroactive benefits awarded, or whether you will have the free NAIW attorney represent you. It is a huge mistake to represent yourself at the Appeals Officer hearing. That hearing is the most important one as it is your last opportunity to present witnesses or documents that might help win your appeal.
9. If you win, be aware that the insurer could request a stay and file an appeal
The insurer and employer have the same right to appeal an adverse hearing officer decision that you have. You won’t know whether the insurer or employer intends to file an appeal unless the adjuster talks to you and tells you they don’t intend to appeal. Injured workers usually have to wait until the 30-day appeal time is up before knowing whether the insurer is appealing, and the way they find out is that they receive a Motion for Stay along with an appeal by the insurer. A Motion for Stay is a request that the appeals officer rule right away, before the scheduled appeal hearing, whether the insurer has to comply with the hearing officer’s decision before the second appeal is decided. It is essential that you file a written opposition to the insurer’s motion, or the appeals officer will grant a stay. Your opposition should state why the insurer will not prevail at the second appeal and why the insurer will not be irreparably harmed if the stay is not granted. The written opposition must be filed with 10 days of receiving the motion for stay.
10. The hearing officer may issue an order remanding the claim to the insurer
If you are giving the hearing officer and the insurer new reports such as a second PPD evaluation you obtained, or a new medical report from another doctor, and the insurer hasn’t seen these reports before the hearing, the hearing officer is likely to remand the case to the insurer for a new determination. That means that the insurer could have another 30 days to look at your report and reject it, giving you new appeal rights, and you would have to start the Request for Hearing process all over again on this new determination. It is common for hearing officer’s to remand claims involving conflicting PPD reports to the insurer for the insurer to schedule a third rating exam. If the insurer asks you to agree on a rating physician, you have the right not to agree to any the insurer suggests and to insist that the insurer get an assigned rating doctor from DIR’s rotating list. It always amazes me to see the number of injured workers agreeing to doctors they know nothing about. If you don’t know, don’t agree with the insurer’s suggestions for a rating doctor.
I have a Youtube video that shows you the inside of an actual hearing room and that explains how the hearing is conducted. Good Luck.