Workers' Compensation Attorney

 This past weekend (November 7-9, 2014), I spoke twice at a conference of the American Academy of Orthopedic Surgeons.  Orthopedic doctors from various states attending the particular sessions I taught were mostly older, and many were hired by industrial insurance adjusters to do independent medical exams on claims where attorneys were involved.   I had just blasted so-called IME’s in Nevada in my last blog post, so it was interesting that I now had to face a group of doctors for two hours each day to lecture and answer their questions about how a  claimant’s’ attorney analyzes work comp medical issues.  I hope it was a learning experience for the doctors.  I know that I learned a lot and think I will be a better claimants’ attorney having this opportunity to interact with these doctors. 

My first impression of this group of doctors was that their opinion of claimants’ attorneys was very negative.   Many of them truly thought I would agree to represent someone  who had no medical evidence to support an injury claim so long as I thought I could earn a fee. Others thought that the longer I was able to keep an injured worker off work, the more money  I made.  

Former defense attorney, David DePaulo, Esq., co-taught both seasons with me.  He now runs www.workcompcentral.com, a website with a wealth of information on all states’ and federal work comp systems.   He is an engaging and highly knowledgeable speaker. I enjoyed working with him. 

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 If you are an injured worker with an accepted workers’ compensation claim in Nevada, you should not be receiving bills from hospitals, radiologists, labs, doctors, or physical therapists for treatment that was authorized by your adjuster. In fact, it is against the law for medical providers  on claims they know are accepted to bill the injured worker if they don’t get paid quick enough or at all by the workers’ comp. insurer. NRS 616C.135.

Sometimes, I see bills that have a stamp that says the work comp insurer has been billed and that because it hasn’t been paid, the injured worker should show the bill to the employer.  This too is wrong, because the employer isn’t responsible for the bill.  Nor is it likely that an employer will actually get after the insurer to pay the bill.  Instead, the injured worker worries, and even pays the bill that he or she shouldn’t have to pay.

I also see cases where the medical provider sends the bill to collections against the injured worker when the work comp insurer fails to pay bills on accepted claims.  I’m trying to track just how prevalent this occurs so I can do more about it.  The law referenced above says that the DIR can fine a medical provider $250 for violating the law.  Big deal!!  What is $250 to a billion dollar corporation?  How much money has already been wrongfully collected from injured workers,  and how many have had their credit ruined?  I want to know.

Until I can find a better solution for injured workers, I recommend that you file a complaint with DIR, attaching a copy of your claims acceptance letter and the bill you receive from a medical provider.  Also attach any collection notices.  Please note that this statute only covers situations where you can show that the medical provider knew that they were providing services on a workers’ compensation claim that was already accepted.  I would really like to hear from you if this has happened or is happening to you so that I know how frequently this occurs. 

(Please note:  This is not to be interpreted as any promise to provide you with legal representation.  I am simply trying to determine how serious this problem is for injured workers at this time.)

 When an injured worker in Nevada gets a letter requiring attendance at an "independent medical examination",  it’s reasonable to assume that the doctor will in fact be independent and objective.  Unfortunately, there is nothing independent about an adjuster choosing which doctor will second-guess  another doctor’s opinion.  For example, if a treating doctor reports that a herniated disc was caused by the work accident, and the adjuster doesn’t like that diagnosis, the adjuster might require that the injured worker attend an "independent medical exam" (IME) with a doctor the adjuster knows will instead diagnose just a lumbar strain. 

I see the same doctors used again and again by some adjusters because they can rely on the IME doctor to give the "right" answers to a letter the adjuster sends only to the doctor.  Not all adjusters engage in this unfair practice, but enough do that it is a problem.  The adjuster should at least be honest about what the exam is and call it a consultation ordered by the insurer or employer. 

Knowing that an IME doctor is not really independent, can an injured worker refuse to attend the exam?  No, unfortunately, not. . Nevada law allows an adjuster to schedule a consultation with a physician the adjuster chooses, and if the injured worker won’t attend the appointment, his benefits can be suspended until he does attend.  NRS 616C.140. 

 If the injured worker is represented by an experienced workers’ compensation attorney, there are various strategies to counter the loaded IME.  One is to file an appeal immediately upon receipt of a letter from the adjuster scheduling with a known defense doctor.  Once the claim is in litigation, an appeals officer could order another IME, but one that is with a doctor agreed upon by the attorneys.  If the attorneys cannot agree on a doctor, the appeals officer usually asks the attorneys to give the appeals officer three names, and the appeals officer chooses the doctor.  The appeal officer will also order that no one but the injured worker speak to the IME doctor, and the IME doctor must answer only questions asked by the appeals officer in a document called an interim order. 

 Any injured worker over the age of 30 with a serious work injury is likely to find some reference in  his or her medical records to degeneration of the body part being examined.  Degenerative disc disease, for example, is actually a normal  part of the aging process.  But insurers and their third-party administrators start to drool when they see those words in x-ray and MRI reports, because it gets them thinking about how they might reduce medical expenses or subtract from  the PPD award on the claim.  

Some insurers are very aggressive about denying claims for the reason that the injured worker has a pre-existing condition.  Most physicians, not knowing what Nevada law says about pre-existing conditions, don’t help the situation.  Many doctors on the insurers’ exclusive provider lists simply shrug their shoulders when their requests to perform surgery are denied.  They tell the patient that they will have to use their private insurance or pay out of pocket to have a surgery for a work injury that aggravates a pre-existing condition.  If the patient was probably going to need surgery at some future time anyway, these doctors think that the insurer is justified in limiting the scope of the claim.  However, under Nevada statutory law and Nevada case law, many of those types of injuries should be treated under the workers’ comp claim.

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 If an injured worker in Nevada successfully convinces a hearing officer to reverse an adjuster’s action on a claim, the insurer and/or the employer has the right to file an appeal to an appeals officer.  The insurer or employer must file their appeal within 30 days (plus 3 days for mailing of the hearing officer’s decision).  The insurer or employer usually wait until the last possible day to file an appeal.  Whether the insurer has to comply and do what the hearing officer ordered depends on whether the insurer is able to obtain an order from an appeals officer staying the decision of the hearing officer until the next appeal is decided by the appeals officer.  

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Special Work Comp Laws Applicable to Fire Fighters

A. Contagious diseases

Exposure to contagious diseases while providing medical care at work is considered an injury by accident. NRS 616A.265 (2); testing and lifetime benefits for tuberculosis, hepatitis, and HIV are covered in detail for fire fighters.

B. Cancer

There is a rebuttable presumption of compensability if a fire fighter’s cancer develops or manifests itself out of and in the course of employment after 5 years of employment and the fire fighter was exposed to a known carcinogen and the carcinogen is reasonably related to the disabling cancer. NRS 617.453. This law has a non-exclusive list of known carcinogens and cancers they are associated with. This rebuttable presumption extends for cancer diagnosed after employment terminates for period not to exceed 5 years. The employer can present evidence to rebut presumption. If fire fighter doesn’t have 5 years of employment for the rebuttable presumption to apply, she may still seek occupational disease benefits by proving her cancer is work related under NRS 617.440 (See Evans case.)

C. Heart disease

NRS 617.457 provides for a conclusive presumption that a disabling heart disease is occupationally related for fire fighter with 5 years of continuous, full time employment. A failure to correct predisposing conditions is a defense to the claim. Fire fighter who is partially disabled and cannot work as a fire fighter may elect PT benefits.

D. Hepatitis

Under NRS 617.485, hepatitis is conclusively presumed to be occupationally related of a fire fighter with 5 years of employment, unless the fire fighter had that particular kind of hepatitis when employed as a fire fighter. Fire fighter may elect PT benefits is partially disabled and unable to work as a fire fighter.

E. Lung Disease

Under NRS 617.455 there is a conclusive presumption that a disease of the lungs is occupationally related if the fire fighter has 5 years of employment before becoming disabled. Fire fighters with 2 to 5 years of employment as a fire fighter must show a causal relationship between lung disease and exposure to heat, smoke, fumes, tear gas or other noxious gases in the employment.

Virginia :  The primary purpose of my blog posts is to inform Nevada’s injured workers about the law and the claims process.  However, I occasionally like to offer my readers from the workers’ compensation industry a more detailed analysis of a current issue that requires a working familiarity with Nevada workers compensation claims.   The following is a guest blog post by a well-respected Nevada rating doctor on a difficult  rating issue.  (Chiropractors on the DIR’s list of rating doctors  are  qualified to rate any injury to the musculoskeletal system.)

Under the 5th edition of the AMA Guides to Permanent Impairment, when a rating doctor is evaluating a cervical, thoracic, or lumbar spine injury, such as a herniated disc, the doctor must correctly  choose one of two rating methods in the book.  Whether the rating doctor uses the  range of motion method , or uses a DRE category can significantly change the percentage of impairment.   Ultimately, the  amount of money the injured worker receives as his PPD award, will be affected.  I asked Paul Pirruccello, D.C,  currently on the DIR’s panel to review Nevada ratings for errors,  to explain when the Guides require that the rating doctor use the Range of Motion method of rating spinal injuries:

When Should the Range of Motion (ROM) Method Be Used for Spinal Impairment?

When an adequate number of PPD ratings have come across your desk, you will inevitably come across spinal ratings where the ROM Method has been used because the rating doctor thinks there is “multilevel involvement.”  The major concern in these cases lies in the rater’s understanding of the AMA Guides definition of multilevel involvement.  The proper utilization of the ROM Method is best defined in Section 15.2a #4 on page 380 of the AMA Guides, as follows:  a. Fractures at more than one level in a spinal region. b. Radiculopathy bilaterally or at multiple levels in the same spinal region. c. multilevel motion segment alteration (such as multilevel fusion) in the same spinal region. d. Recurrent disk herniation or stenosis with radiculopathy at the same or a different level in the same spinal region.

Forgive me for not explaining the word apportionment sooner in my past blog posts about permanent partial disability awards on Nevada workers’ compensation claims.   It’s a bad word, and it means subtraction from the percentage of impairment.  It the rating doctor writes in his report that he found you have a 10% whole body impairment, but is apportioning the award by 50%, that means you will be offered a 5% whole body award, or half of the amount of money you would have been offered.

If your adjuster on your claim  has been talking or writing about preexisting medical conditions or has mentioned the  degeneration noted in x-rays or your MRI reports, you should be prepared for the adjuster wanting the rating doctor to apportion your impairment.. A good rating physician will always throw in a sentence or two that they considered apportionment even if they don’t do any subtracting in coming up with the final percentage.  An adjuster who wants your award sliced in half or a good chunk deducted from it, may even write to the rating doctor after she gets his report and ask him to reconsider apportioning the award. 

Many rating doctors are falling victim to adjusters who are getting very aggressive about reducing injured workers’ awards.  It is no secret among workers’ compensation attorneys that many adjusters have a short list of their favorite rating doctors; ones that they will agree to do the rating rather than have one assigned by the DIR’s rotating list.  In order to stay in the adjuster’s good graces and on this short list, some rating doctors will apportion awards when they should not be making subtractions.

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 Mark Kabins, M.D. spoke to a small group of claimants’ attorneys last week to  talk about treatment of work-related spinal injuries.  Dr. Kabins, a long-time resident of Las Vegas, was a very animated and passionate speaker about  treating injuries  under workers’ compensation  claims. He is a Diplomat of both the American Board of   Orthopedic Surgery and the American Board of Spine Surgery.  

I told  Dr. Kabins that many of my clients want to k now whether they should be asking for a transfer of care to a neurosurgeon,  or instead,  to an orthopedic surgeon,  when it appears that they may need a back or a neck surgery.  Dr. Kabin’s response was to send the person to the doctor who is the best surgeon, regardless of what they list as their primary specialty.  Dr. Kabins then elaborated that his surgical practice is different from other local surgeons in that he does not pre-screen his patients so that only likely surgical candidates are scheduled.  Instead, he welcomes treatment of back strains where there are muscle rips at the ligaments, and he wants to be involved early in the treatment of such cases so that the patient can be properly educated about the diagnosis and become an active participant in their own healing process. 

Dr. Kabin’s stated that about 15 to 30% of the lumbar injury cases referred to him really involve an injury at the SI joint level.   He also explained the difference between a lumbar bulge (either normal, or depicting an annular tear), and contrasted it with a disc  protrusion, which  he described as  a pimple-like subligamentous disc herniation.

 Dr. Kabins is a  fantastic  educator, and he justified the long wait times in his office for patients as being necessary in order to allow him whatever time is required to properly attend to individual patents.  His office manager, Brenda Cotton,  recommended calling ahead and discussing any particular time requirements you may have so as to reduce extended time in the waiting room.  Dr. Kabin’s outstanding record of safe surgeries with excellent results should matter more than a quick appointment for injured workers looking to transfer care from the initial clinics.

Dr. Kabins also treats patients with injuries from California and Arizona who must be billed under those states’ fee schedules.  Although he is currently on provider lists for many Nevada insurers and their third-party administrators, he is not opposed to  opening provider lists to any physician in good standing who is willing to accept the Nevada fee schedule.  He practices with Mary Ann Shannon, M.D., who specializes in upper extremity, hand and sports injuries.  John Reneau, M.D., is a physical medicine  and rehabilitation  physician with the  practice, called Las Vegas Orthopedics, Spine, and Rehabilitation.  Their office is located at 501 S. Rancho Dr., Suite I-67, Las Vegas, NV 89106.  Their phone is (702) 243-4700.

One of the best physicians to care for Nevada’s injured workers died recently following a long battle with cancer. I first met Dr. Maureen Mackey when I was working as an attorney for the State Industrial Insurance System, and she was employed as a physical rehabilitation doctor for the Jean Hanna Clark Rehabilitation Center in the building now occupied by the dental school on Charleston Boulevard in Las Vegas.

Dr. Mackey was particularly known for her extraordinary compassion when treating people with traumatic brain injuries and spinal injuries that prevented them from ever returning  to any kind of employment after a work accident. When she left the JHCRC to open her own medical practice at a shabby little office on the corner of Sahara and Eastern, she continued to treat many of those permanently and totally disabled injured workers. I know that she didn’t get paid much, if anything, for continuing to care for many of them. That made it impossible to decline when Dr. Mackey called to ask if I could help one of her homeless or brain-injured patients who needed legal help for free. 

She had one  "good" chair  for visiting lawyers who didn’t want to ruin their suits on her ratty old chairs when their clients were rated for impairments. Regardless of what  injury she was rating, Dr. Mackey always gave the injured worker an eye exam, and she always scolded those people who were neglecting their health.   She wasn’t liked by everyone because she  spoke her mind, and she didn’t back down when she thought she was right.  

I remember one rating exam when my client, who had three failed back surgeries, asked her whether he would ever get better.  This client had correctly guessed  that Dr. Mackey was someone who would tell him the truth. Dr. Mackey looked him in the eye and said, "No, only prayers will help you now. Shall we pray together?"  The client smiled and said, "Sure."   Dr. Mackey, who was a bit overweight and with bad knees, then held the client’s hand, ordered me to kneel (as I was the only one in the room who could kneel), and she said a prayer aloud for the client.  We could use some more doctors like her.