Workers' Compensation Attorney

As you know, I have been working with a group of dedicated workers’ comp attorneys to try to defeat some nasty bills that would significantly cut your benefits. Specifically, Assembly Bill 229 would require that rating doctors use the 6^th edition of the AMA Guides to the Evaluation of Permanent Impairments instead of the current 5^th edition. The self-insured employers and Employers Insurance in particular are sponsoring this legislation. It would reduce PPD awards by over a third in many cases. The legislators on the Committee for Commerce and Labor have been mislead into thinking that PPD awards are a windfall to injured workers. They do not know injured workers as real people as I do.

I know that after a devastating injury when a worker is off work for weeks or months only receiving 2/3 of his or her average monthly wage, there are bills and debts that must be paid from the award. These PPD awards are based on how much money the worker is making at the time of the accident and how old the injured worker is when the award is offered. That means that if you have the horrible luck of getting injured while working an interim job where you are making little wages, your award for a permanent injury will not be much. It also means that if you are an older injured worker, you get screwed even more so, and your award is not much at all. Now, the legislators are being convinced into believing that these awards should be reduced even more.

PLEASE, PLEASE write to the following legislators and tell them why PPD awards should not be rated using the 6^th edition of the Guides. Tell them your real story about how necessary this money will be to get you back on your feet financially. I need this right away. They do not give us any advance notice about when these bills are going to be heard. Bill 229 committee member emails:

Randy.Kirner@asm.state.nv.us; Victoria.Seaman@asm.state.nv.us; Paul.Anderson@asm.state.nv.us; John.Ellison@asm.state.nv.us; Michele.Fiore@asm.state.nv.us; Ira.Hansen@asm.state.nv.us; Erven.Nelson@asm.state.nv.us; PK.Oneill@asm.state.nv.us; Stephen.Silberkraus@asm.state.nv.us; Irene.BustamanteAdams@asm.state.nv.us; Maggie.Carlton@asm.state.nv.us; Olivia.Diaz@asm.state.nv.us; Marilyn.Kirkpatrick@asm.state.nv.us; Dina.Neal@asm.state.nv.us; James.Ohrenschall@asm.state.nv.us;

This is your chance to be heard. Thank you.

Additionally, there is a direct link to the legislative site where you can post additional comments about proposed legislation:

https://www.leg.state.nv.us/app/opinions/78th2015/a/.

Steve Miller ran two articles today in the Nevada Journal on the proposed legislation that would allow injured workers greater rights to choose their treating physicians. Let’s hope that Nevada’s lawmakers read them and pay particular attention to how ineffective DIR is with regard to looking out for the interests of injured workers as we try to weather the storm during this legislative session.

Meanwhile, the self-insured employers didn’t fare as well as they expected on AB 229 during the Assembly’s Committee on Commerce and Labor open hearing on March 25, 2015, with this nasty piece of legislation that had a laundry list of insults to the Nevada workers’ compensation system. Lobbyist Don Jayne for the self-insured group admitted that he hadn’t tried working with claimants’ advocates to determine what compromises were possible on the lengthy bill that covered a variety of topics. Claimants’ attorneys came well-prepared to respond to legislators questions as to why AB 229 was a bad idea. Some of the provisions in the proposed legislation included shortening the claim filing requirement from 90 to 30 days. For 25 years in Nevada, an injured worker has had 90 days to file a workers’ compensation claim. Another provision in the bill would allow insurers to suspend benefits if an injured worker who is unable to work from a work injury suddenly has a non-industrial medical condition, including pregnancy, that might prolong treatment for the work injury. A significant limitation to lifetime reopening rights was also included, and the insurers proposed that their adjusters be allowed to make discretionary decisions about allowing ongoing medication after a claim is closed, without giving injured workers appeal rights. Perhaps the most controversial provision that was discussion was requiring that rating doctors use the AMA Guides 6th edition instead of the 5th edition to rate impairment. The Committee chair concluded the session by telling Mr. Jayne that this was a dead bill until there was some attempt by the self-insureds to meet with the opposition to try to work out some compromises.

In response, the self-insureds have apparently dropped all of the proposed legislative changes in AB 229 except for requiring that rating doctors use the 6th edition of the AMA Guides to Evaluation of Permanent Impairment. This would also require that Nevada automatically adopt whatever new editions in the future that are published by the AMA Guides to Evaluation of Permanent Impairment. The reason the self-insureds want the 6th edition so much is that it will significantly gut awards for injured workers. For example, an injured worker who requires a knee replacement due to a work accident would get a 33 1/3% less rating under the 6th edition than under the 5th edition. Another example would be that an injured worker requiring a single level lumbar fusion from a work injury would be rated as having a 13% whole person impairment, whereas he would be rated as having a 20 to 23% whole person impairment under the 5th edition.

We need to educate legislators in the upcoming battle over the 6th edition rating guides that PPD awards are not the windfalls or jackpots people think they are. Most of my clients with serious work injuries who have been out of work receiving only 2/3 of their average monthly wage, use their PPD awards to pay off debts incurred while out of work. Many use their awards to continue their medical care with doctors of their own choosing who might do them some good. Now is the time for injured workers to speak up and tell their stories as to why PPD awards should not be reduced.

Effective 2/1/15 through 1/31/16, the cost of a permanent partial disability evaluation on a Nevada workers’ compensation claim is $754.62. That is for two body parts. The cervical spine is considered one body part, the thoracic spine another body part, and the lumbar spine would be a separate body part. For each additional body part after two, the rating doctor may charge an additional $252.02. That means that if an injured worker disagrees with the first rating obtained by the insurer on a claim involving three body parts, the injured worker will have to pay $1006.64 to obtain a second rating evaluation to give to a hearing officer to try to obtain a higher percentage impairment. A rating doctor who is asked only to review records and give a report on impairment may charge $376.57. Keep in mind that a hearings or appeals officer may order the insurer to reimburse an injured worker who pays for a second rating (or a first rating when the insurer refuses to schedule a rating).

Nevada injured workers can do something about the current law that limits their choice of treating doctors to those on their industrial insurers’ provider lists. The Nevada Chiropractic Association has sponsored a bill, AB 187, that would amend current law and would allow injured workers to treat with a doctor who is willing to accept what other contracted physicians accept for payment for similar treatment. I urge you to come to the Grant Sawyer Building on E. Washington in Las Vegas on March 11, 2015, at 1:30 pm, to testify before the assembly sub-committee considering this legislation to tell them your experiences with having to treat with “their doctors”. Alternatively, you may write a letter, with your name, address, and phone number immediately, and email or fax it to me at (702) 731-9097 and I will enter it as an exhibit on Wednesday.

There was a lengthy article in the Las Vegas Review Journal today about the only peripheral nerve surgeon in Las Vegas, Nevada- Tim Tollestrup, M.D. I wrote about meeting him previously in a post in October 2012. Since then, I’ve had half a dozen workers compensation claimants treat with him, with excellent results. Additionally, he is genuinely concerned about his patients. He has personally called me several times on difficult cases to make sure that what he is writing in his reporting is likely to be understand correctly by the adjuster handling the claim.

Successfully diagnosing a complex work injury is a skill that depends on the physician’s schooling, life experiences, interaction with real patients, and sometimes his or her focused specialty training. Orthopedic surgeons and neurosurgeons in Las Vegas can be reluctant to consider involving a peripheral nerve specialist on claims where the injured worker isn’t improving. However, as they get to know Dr. Tollestrup and see the results of his work, I think that will change and we will need a second peripheral nerve specialist in the valley soon.

Click on this website to find out who your representatives are in state government so that you can voice your opinion on this important issue:

https://www.leg.state.nv.us/Division/Research/Library/FAQ/WhichLegislatorRepresents.html?CFID=23920731&CFTOKEN=bf710a33b7c9b575-B1993405-F17A-47AD-CBA1A41D2BF543E2

The Nevada legislature meets only once every other year, and this year doesn’t look good for the changes that could gut benefits for Nevada’s injured workers. The amendment so many of us committed work comp attorneys hoped would get out of the senate committee on commerce and labor and to the legislature for a vote on allowing workers to choose their own doctors might be dead already. Meanwhile, big business employers and insurers are having a field day trying to take advantage of a a Republican majority assembly and a Republican majority senate to try to pass so-called reforms that would seriously harm Nevada employees with legitimate work injuries.

Please look at AB 229 and all of the nasty changes in this proposed legislation. Then, please send a message to the assembly person for your district that you are opposed. No hearing is scheduled yet, and these hearings are scheduled with only a few days notice.

Meanwhile, other states are likewise doing major harm to their workers’ compensation systems. Here is a good article on the effect of these legislative changes: http://www.npr.org/2015/03/04/390441655/injured-workers-suffer-as-reforms-limit-workers-compensation-benefits

I asked Laurie Clemens, director of the Professional Institute of Technology & Accounting (PITA) here in Las Vegas, what keyboard options she has tried when retraining injured workers with hand or arm injuries that make typing difficult. While there are medical differences of opinion as to whether typing can cause carpal tunnel syndrome, there is no question that typing on a regular keyboard can aggravate the condition. Almost all occupations now require some input on a computer and typing, so workers with any kind of hand injury may need a special keyboard.

Often times, employers are willing to provide reasonable accommodations for employees who suffer such work-related injuries and will purchase a special keyboard. According to Laurie, PITA recommends three products when it comes to these accommodations.

One of the most popular options for accommodating injuries such as carpal tunnel is Lilly Walter’s one-handed keyboards. This is essentially a child-sized keyboard designed to make maneuvering around the keys with only one hand a lot easier than a full-sized keyboard. The best part is, it’s portable, and looks identical to ordinary keyboards apart from the size.

In some of the more severe cases of hand injuries, another option exists from BoundlessAT. They have developed the Maltron Single Hand Keyboard, for use when normal hand movement is not possible due to an injury or disability. This keyboard has a different layout from a normal keyboard, and may require additional training to use.

Another option exists that can allow an injured worker to dramatically cut down on the required amount of typing during a normal work day. Dragon NaturallySpeaking Professional is a talk-to-text system that is also available through BoundlessAT.

I would like to give a special thanks to Laurie Clemens for this useful information.

Neurosurgeon Randal Peoples, M.D. spoke to a dozen claimants’ attorneys and interested health care providers recently about his philosophy in treating spinal injuries. He acknowledged that he has a reputation for being conservative about recommending surgery and stated that being a good surgeon is knowing when not to operate.

Dr. Peoples emphasized that the patient’s history about an injury is the most important information to him in diagnosing a spinal injury. About one third of the population has a disc herniation on a MRI, but most don’t know it and don’t have pain or disability. (more…)

If you work for an employer who employs more than 50 employees and you have worked sufficient hours to qualify for FMLA time (29 U.S.C.2601), you may want to ask that any time you are off work for your work injury be designated as FMLA time, particularly if you expect to be released full duty before your full 12 weeks of FMLA time is up. Many employers require that any time off for a work injury be designated as FMLA time so as to reduce your 12 weeks of FMLA. A recent 9th Circuit case (Escriba v. Foster Poultry Farms) appears to question that, but the Department of Labor website still states that an employer may legally deplete FMLA time for a work injury, even if the employee doesn’t want FMLA time to be used. However, if an employer forgets or doesn’t require that FMLA time be reduced for a work injury, then the employee will still have FMLA time (unpaid leave time) available for your later use.

Why then would you ever want to use your FMLA time while you are being compensated for your time off work under an accepted workers’ compensation claim? One reason would be if you think your employer may intend to replace you while you are off work and will not offer you employment after you return from your work injury. Under workers’ compensation law, your employer does not have to hold your job open for you. If you are released full duty without any permanent work restrictions, your employer can tell you that it was necessary to find someone else to do your job, or that they decided to downsize while you were gone. Under those circumstances, workers’ compensation will terminate your benefits, and your only recourse is to file for unemployment benefits while you search for a new job. However, if you properly requested FMLA time while you were out for the work injury, and if haven’t used all your FMLA time, your employer must return you to your pre-accident job. Just make sure that you follow all company policies and follow the steps to ask for FMLA protection when you are off work.