Workers' Compensation Attorney

I believe that people are responsible for their actions in life, particularly decisions they make that affect their own personal health. Although I represent injured people, I may personally disagree with a sensational jury verdict against a deep-pocket corporation where it doesn’t appear that the plaintiff (person suing) was looking out for their own health either. For example, despite the highly addictive properties of nicotine, I admit I don’t feel a lot of sympathy for smokers who sue tobacco companies for emphysema or heart disease when they continued to smoke after warnings were placed about risks on cigarette packages. However, I haven’t read the evidence or testimony in those cases. I mention this example because it shows that we all have our opinions and prejudices when it comes to judging others’ behavior, even when we have limited information.

In the workers’ compensation arena, employees have an expectation that their employer will be looking out for their safety, and it comes as an unpleasant surprise when a severely injured employee cannot sue an employer for a clear-cut safety hazard that causes injury. Neither the fault of the employer, nor the fault of the employee in causing a work accident is supposed to increase or decrease benefits unless the law specifically allows it. For example, Nevada has a specific law that specifically denies benefits to employees who are injured because they are intoxicated. However, employees who are injured through their own lack of due care (contributory negligence), are entitled to benefits the same as other injured workers.

I am seeing a trend though where employers and insurers are trying to bring fault into play to reduce benefits to employees who haven’t maintained healthy lifestyles. (more…)

Yesterday I met with Amie Pellegrini, the Nevada business manager for IW Pharmacy, an online prescription company that services injured workers. My staff and I have been having such difficulty getting prescriptions filled timely for clients, with many administrators using intermediary drug companies that only confuse and delay medication fills. This company promises to quickly fill prescriptions for my clients, even those prescriptions that are denied and in the appeals process, so long as an attorney is on the case and advocating for the injured worker. This company handles any pre-authorizations that might be required, billing the adjuster, and has staff that knows how to properly handle workers’ comp claims. Additionally, they don’t have the out-of-stock problem that many of my clients have encountered with local pharmacies not having sufficient quantities of medication. Prescriptions are delivered to your home. In order to enroll, you must fax your prescription to 1-800-497-4276. I look forward to working with them.

Effective January 1, 2015, the reimbursement rate for workers compensation related travel has been increased from $.56 per mile to $.575 per mile.

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

• 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.

I’ve got good news and bad news about occupational hearing loss.

First the bad news about occupational hearing loss claims:

• It can be hard to prove that the hearing loss was caused by a work accident or by an incident of loud noise at work as opposed to hearing loss from aging, particularly if there is no baseline audiogram when the employee begins the job,
• Insurers fight these claims because hearing aids are expensive and need frequent replacement,
• Claims for hearing loss that comes on gradually over time from noise exposure at work are often denied if the employee writes a date of onset more than 90 days before a C-4 claim form is completed. The insurer may argue that the claim should have been filed sooner.
• Insurers change the rules as to how to compare hearing loss from one year to the next,
• An employee can have a significant hearing loss and need hearing aids, but still may not have a ratable impairment under the AMA Guides and not be entitled to a permanent partial disability award.

Now the good news– the N.Y. Times reports on advances in treatment of hearing loss with medication Medication may cost less than treatment with expensive hearing aids and may ultimately result in less resistance from insurers in accepting these claims. Additionally, many people have a hard time adjusting to hearing aids.

The most important hearing on a contested workers’ compensation case in Nevada is the one before the the appeals officer, because that hearing is recorded, it is the last avenue for presenting witnesses or documentary evidence on the contested issue, and the appeals officer’s decision is difficult to attack. However, any of the parties who lose at the appeals officer level, has the right to file an appeal to a district court judge, and that appeal is called a Petition for Judicial Review.

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Some third-party administrators of Nevada workers’ compensation claims routinely send injured workers their own medical release forms which give the adjuster authorization to request any and all medical records from any medical providers. I don’t have my clients sign those overly broad medical releases. They are an invasion of the injured worker’s privacy, and injured workers are not required to sign those types of release forms.

NRS 616C.177 is the law that allows an insurer to ask about preexisting conditions and that requires the injured worker to sign a release. However, this statute limits both the inquiry about preexisting medical conditions and the release form to “a preexisting medical condition that is reasonably related to the industrial injury of that injured employee.” [emphasis added] This law also states that the release is to assist the insurer to determine the nature and amount of workers’ compensation to which the employee is entitled.

NAC 616C.079, a regulation adopted by the DIR, says that the insurer may require the injured worker to sign a medical release for records “necessary for the insurer to obtain appropriate information and documents to determine the nature and amount of benefits.” [emphasis added] To the extent a regulation conflicts with a statute, the statute prevails, according to rules of statutory interpretation by the Nevada Supreme Court.

NRS 616A.400 gives authority to the DIR to regulate the forms used to process workers’ compensation claims. DIR passed NAC616A.480(4) which requires insurers and third-party administrators to use the forms that DIR has written and listed in that regulation. One of those forms is the D-36 used by insurers to ask about prior medical conditions that might affect the current claim. This form has a medical release incorporated into the form. It is a limited release form and only requests records pertinent to the injury. Insurers who want to use a different form are supposed to ask permission from DIR.

I doubt that DIR would authorize an insurer to use a very broad medical release form that can be used to obtain medical records for all past treatment, regardless of its relevancy to the current injury. If DIR were to approve such a form, it is my opinion that it would be a violation of the first law I cited, NRS 616C.177, that limits inquiries and releases to records of preexisting conditions that are reasonably related to the claim.

Rather than just fail to return an overly broad release, I recommend that you print the D-36 form that is linked in this post, complete it as to any body parts that are at issue with this claim, and tell the adjuster that you will not sign other forms that are not authorized by DIR.

I do not practice federal workers’ compensation law, but recently met an excellent attorney at a national work comp conference who does handle these cases. As he explains in his guest post below, while you may live in Nevada, because federal law is the same in every state, it makes sense to hire the best federal work comp attorney even if he is physically located across the country. I am referring all clients with federal work comp questions to Dan. His contact information is below. Virginia Hunt

The Federal Employees Compensation Act (FECA) covers traumatic injury claims and occupational disease or illness claims for most all civilian employees of the United States government, including temporary employees, contract employees and volunteers who are injured during the course of and as result of their employment. Benefits include wage loss compensation, medical benefits, vocational rehabilitation benefits, survivor benefits and payment for permanent partial disability to specified parts of the body. FECA is administered by the United States Department of Labor, Office of Worker’s Compensation Programs (OWCP), Division of Federal Employee Compensation which has 12 district offices serving various regions of the country (http://www.dol.gov/owcp/dfec/). OWCP plays a hybrid role as not only the adjudicator of the claim, but it is also designated to assist the employee in the development of the claim. All claims are submitted and initially determine by a paper filing. If an appeal is necessary, it is heard administratively in an informal manner with no courts or judges involved. FECA is a unique statutory scheme unlike any other worker compensation law in the country.

A lawyer may represent a government employee FECA claimant no matter where that employee resides or is employed as the law is uniform amongst all states and U.S. territories and all FECA practitioners have a national practice. Personal appearances at hearings or appeals are not required and often times they are conducted by video conference or telephonically. There are no more than approximately 20 lawyers in the country the majority of whose practice is FECA.

Daniel B. Shapiro, Esq., a graduate of Boston University and New England Law Boston, is a frequent lecturer on the Federal Employees Compensation Act and practice before the Office of Worker Compensation Programs of the United States Department of Labor. He has addressed and advised many local branches of federal employee unions and their individual members on their worker compensation rights for over thirty-eight years. He is the vice-president of the FECA Law and Advisory Group, a national organization of OWCP claimant representatives. Shapiro & Associates at >Daniel B. Shapiro, Esq is the single largest provider of FECA legal services in the country.

New OSHA regulations go into effect the first of this year that increase the reporting requirements for employers of more than 10 employees of work-related serious injuries. The December 22, 2014 article in theLas Vegas Business Press states that with increased funding and expanded enforcement Nevada employers have noticed increased OHSA investigations. Reportable serious injuries would include in-patient hospitalization, partial or complete amputations or loss of an eye. Those accidents should trigger immediate investigations, site inspections, witness interviews, and examination of an employer’s safety and training programs. Violations of record-keeping rules can also result in fines and penalties, just like safety violations. (more…)

The Division of Industrial Relations (DIR) is the Nevada sub-agency responsible for maintaining a list of doctors authorized to perform impairment evaluations, also known as ratings, on injured workers with Nevada workers’ compensation claims. On December 14, 2014, the DIR updated its list of rating doctors to show which doctors have been added, or which ones are inactive, and the medical specialty for each doctor. Several doctors are listed more than once to indicate that the doctor is available in multiple geographical areas in Nevada. The total number of rating doctors who are currently active is 137, with chiropractors now numbering 100 of that total. (more…)

I have had rating issues come up in the past on how to rate injuries to the sacroiliac joint, and fortunately I had two experienced rating doctors reason that they should be rated under the DRE categories for a low back injury. I say fortunately because some rating doctors would have taken the position that because the AMA Guides 5th edition don’t specifically mention the sacroiliac joint, they would have found no ratable impairment. The November/December 2014 AMA Guides Newletter should settle any controversy over how to rate an injury to the SI joint.

This article notes that diagnosing an injury to the SI joint can be difficult because the injured worker’s pain complaints are similar to other causes of low back pain. Imaging studies of both the low back and the SI joint may reveal degenerative changes which may or may not be pain contributors, and there doesn’t seem to be a consensus as to what tests will definitely distinguish between a disc problem, facet joint , or the SI joint as the source of back pain.

But once the diagnosis has been made of a SI joint injury and appropriate treatment is finished, it should be easier to establish what the impairment should be now that this article sanctions the use of the low back DRE categories to rate under the 5th edition of the Guides. If the SI joint injury presents the rating doctor with findings of “muscle guarding”, “muscle spasm”, asymmetric loss of motion”, and non-verifiable radicular complaints, it should be rated as a DRE Category II ( 5%-8% whole person, depending on impairment in activities of daily living).