Workers' Compensation Attorney

 Nevada has a highly transient population, with people moving in and out of the state frequently, particularly in this volatile economy.  I remember the days when they used to publish the Las Vegas phone book twice a year. (Now no one uses a phone book; we use our smart  phones.)  

When an injured worker with an accepted Nevada claim moves out of Nevada while still needing medical care, he or she must do the following:

1. Before the move, find the name of  a reputable doctor you want to treat you.  Do some homework and ask people in your new hometown.  You may also ask your adjuster on your Nevada claim whether a nurse case manager she knows can ask for names, as they sometimes belong to a network of nurse case managers nationally.  

2. Send this link to the doctor and ask the doctor whether they will ask as payment what the Nevada fee schedule provides.

3. Once the doctor responds that she will accept the Nevada fee schedule of payments, request in writing to the adjuster that she authorize the change of doctors.  All of this takes time, which is why you need to start this process about a month before you move. 

4. Print out and take a copy of the Physician Progress Report you will have the doctor fill out after every doctor visit (that must occur monthly at a minimum).  This form will be necessary in order for you to receive benefits if your doctor takes you off work.  (If the doctor gives you work restrictions, whether you get benefits will depend on whether or not your employer at the time of the accident has light duty work available.  If not, you get benefits.  If the employer does have light duty, you don’t get benefits simply because you moved and can’t report for light duty work.)

5. If the doctor checks the box that you have a likely ratable impairment at your last doctor’s visit, the insurer will pay for you to return to Nevada for a permanent partial disability evaluation (also known as a rating.) 

Temporary partial disability benefits  (TPD) are benefits that may be payable under the following circumstances:

1. You are working a temporary light duty job at a lesser wage because your duties are different, or you are making the same wage but your employer has reduced your hours each week;

2. You have a permanent job that is within your restrictions, but you are not making your compensation rate, but hope to within the next two years ;

3. You have concurrent employers at the time of your injury, and can only return to work for one of those employers while recuperating from your injuries,

In each of the above examples, in order to determine whether any TPD is owed, we must first know what your average monthly wage is on your claim and your compensation rate.  The average monthly wage is that calculation your adjuster sends you which determines how much you will be paid when when and if you are entitled to lost time compensation benefits.  For example, if your gross monthly wages were $3000, your average monthly wage would be $3000 a month, and your compensation rate (what you would actually receive in benefits when taken off work by your doctor.  That would be 66 2/3 of your average monthly wage, or $2000.

Your compensation rate is also expressed in terms of a daily rate,  which is then multiplied by the usual 14 day period the insurer pays bi-weekly benefits to those claimants off work due to their injury.  Each consecutive day within a pay period is counted, including Saturdays and ‘Sunday. 

You can tell whether any TPD is owed to you by taking your current paycheck stub from your employer from your reduced hours temporary light duty job, and subtracting your net (how much you made after taxes, SSI, medicare   If that amount is less than your compensation rate for that same period of time, then workers’ compensation will owe you the difference between your compensation rate and what you netted on your paycheck. 

Click here for any easy worksheet you may use to determine whether TPD is owed for a particular pay period.  If so, you need to send a copy of your paycheck to your adjuster and ask that TPD be paid for that time period.  You will have to look at each paycheck you receive to determine whether you are owed TPD that time period.   

If you have a permanent light duty job and aren’t making your compensation rate, TPD benefits are payable for up to tow years.  After two years you should be making your compensation rate. 

Remember, you must actively seek these benefits by promptly sending in paycheck stubs and by asking for these benefits. 

 If you are injured while in the course and scope of your employment while driving, and the accident wasn’t your fault, your case is more complicated than the usual work injury case.  I urge you to consult with a knowledgeable attorney so that you do not lose important rights and sources of recovery available to you.  

Not all personal injury attorneys are knowledgeable about Nevada’s workers’ compensation law. If the driver who caused the accident has only a minimal liability policy of $15,000,  your workers’ compensation benefits may be even more important to you than your personal injury attorney realizes.  Also, because the workers’ compensation insurer who pays for medical or compensation benefits on your claim is entitled to share in any recovery against the person who is at fault for the accident,  your lawyer will be important in negotiating who gets what portion of any settlement monies.   You may find that you need both a workers’ compensation attorney in addition to a personal injury attorney to make sure that you are getting all benefits and monetary damages available to you.  Here are some important questions to ask any attorney you meet before you decide who will be representing you:

• Will the attorney be representing  you on your workers’ compensation claim, or just on your personal injury claim against the driver who hit you?  Workers’ compensation law has a different court system to decide disputed issues with insurers, and is based on laws passed by the Nevada legislature.  Personal injury cases are decided under tort law, based on traditional common law and statutory law.  While most personal injury cases involving moderate damages are decided by arbitration or by short trials in front of fewer than twelve jurors, personal injury law is very different than workers’ compensation law,  even if the same injury is involved.
• If you only hire a personal injury attorney and try to handle your workers’ compensation claim yourself, is your personal injury attorney aware that under  Nevada workers’ compensation law, you must see only doctors on your insurer’s provider list?  When  the  adverse driver’s liability policy limits are low, you don’t want to unnecessarily pay for medical treatment on a lien basis from your portion of a personal injury settlement if you can medical treatment under your workers’ comp claim.
• Has the attorney asked you about what other motor vehicle policies might have coverage available to compensate you?  
• Does your personal injury attorney use a subrogation lien agreement to address what offsets the workers’ compensation insurer will assert after your personal injury case is settled, both on an open workers’  compensation claim and in the event the claim is reopened? 
• Resist "making friends" with the adverse driver’s insurance adjuster who may contact you before you hire an attorney.  Their job is to pay the least amount possible.  Do not give recorded statements, and do not agree to settle your claim without the help of an attorney who knows that the industrial insurer’s subrogation lien must also be paid or negotiated. 

 Let’s assume that you have an accepted workers’ compensation claim in Nevada, and that your treating doctor has just released you with permanent work restrictions that would  ordinarily prevent you from being hired or going back to your regular duties at the job you had when you were injured.   The question is whether your employer must take you back and find you work that takes into account that you have these permanent work restrictions. 

Under Nevada workers’ compensation law, the answer to that question is:  No your employer is not required to modify your old job or find you a new job where you don’t have to do any work that would exceed your permanent work restrictions.  Instead, your employer can simply tell your adjuster that they don’t have work within your permanent work  restrictions and that the employer will not be making a permanent light duty job offer.  When that happens, the adjuster schedules you to meet with a vocational rehabilitation counselor to discuss the two options that are available to you under Nevada workers’ comp law:  a retraining program, or a sum of money called a vocational rehabilitation lump sum buy-out.  How long a retraining program, or how much money your can get as a buy-out, will depend mostly on what your percentage of impairment is after your rating evaluation.

But what if you really wanted to remain with the same employer and don’t want to be retrained or don’t want to just accept a buy-out and then have to find work on your own?   Is there anything you 

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 Change Needed to Nevada’s Law on Physician Choice for Injured Workers

A.     A Short History of the Law

In 1913, Nevada first enacted the Nevada Industrial Insurance Act and the Nevada Occupational Disease Act, now known as NRS Chapters 616A-D, and NRS Chapter 617.  It was administered by the NIC (Nevada Industrial Commission).   The NIC was a monopolistic state agency.  No private insurers were allowed to provide policies to employers, and there were no self-insured employers.   In 1973, the legislature directed the NIC to appoint a panel of physicians statewide who were competent to treat injured workers, and the NIC could add, suspend or remove doctors from the panel.

 In 1979, large employers were allowed to become self-insured, and the Dept. of Administration took over the Hearings Division from the NIC.  In 1981, the SIIS (State Industrial Insurance System) replaced the NIC.  The Division of Industrial Relations, a sub-agency of the Dept. of Business and Industry was given regulatory authority over the SIIS and self-insured employers.  During that period of time, the NIC, and then the DIR, continued to maintain a panel of physicians from which the injured worker was free to choose a treating doctor.  Almost all doctors licensed to practice in Nevada were added to the panel.  Healthcare providers were reimbursed based upon a fee schedule developed by DIR and based upon customary billings procedures.   Providers were paid their full bill or the amount allowed under the fee schedule, whichever was less.

In 1993, SIIS management claimed that it was unable to pay its long term liabilities.  The alleged insolvency became a crisis since SIIS was a state agency.  Sweeping legislative changes were made to reduce the perceived deficit, including managed care.  SIIS was authorized by the legislature to contract with a limited number of providers.  The idea was that competition to become a provider on the insurer’s panel of doctors would result in providers agreeing to substantially lower fees for service.  The legislature also abrogated the right of the injured worker to choose any doctor from the DIR’s panel of physicians.  It passed NRS 616C.090, requiring an injured worker to select a treating doctor from the employer insurer’s MCO plan.  

In 1999, SIIS was privatized, and the state fund was replaced by a mutual insurance company called Employers Insurance Company of Nevada (EICON). Private insurance carriers were also allowed to underwrite policies.  More large employers went self-insured.

In response to complaints by labor advocates regarding the lack of choice of treating doctors available to injured workers under the managed care provision, the legislature passed a law in 2003 allowing DIR to adopt regulations concerning the adequacy of physicians on provider panels.  DIR was to hold a public hearing and then adopt regulations ensuring that injured workers had a meaningful choice of physicians. Private carriers, EICON and self-insurers were still authorized to contract with a limited number of providers while seeking the lowest charge possible for medical services, but DIR was supposed to determine what adequate provider panels were.  However, DIR never adopted regulations.

In 2007, the Nevada Supreme Court upheld NRS 616C.090, the law that requires an injured worker to choose a doctor from the insurer’s MCO provider list, even if that meant the injured worker had to change doctors whenever the MCO’s provider list changed.   The court stated in Valdez v. EICON, 162 P.3d 148 (Nev. 2007) that while the right to receive medical treatment is a statutory right, limits on physician choice is not.  Instead, the physician choice law is a procedural mechanism for managing the workers’ compensation system.

In 2009, the legislature clarified that an injured worker could make an alternative choice of doctor from the insurer’s provider list within the first 90 days of the claim.  It also provided that the insurer should give a specific reason for denying any requests to change doctors after 90 days.  Insurers and TPA’s were also required to send a DIR-approved notice regarding the law on choice of physicians to injured workers.  The provider list is available to an injured worker within 3 working days if the request for the list is in writing.  This remains the law today. 

B.     Why the Law Should Be Changed

Allowing insurers, self-insureds, and their third-party administrators to require that injured workers treat only with doctors on their exclusive provider lists is unfair to injured workers and to physicians.  In order to get on an exclusive provider list and stay on it, a physician must agree to accept fees for services that are less than what the Nevada fee schedule provides as reasonable and customary.  These exclusive provider lists change at the whim of the insurer or its TPA, depending on whether the insurer or its TPA likes the way the physician is diagnosing injuries, providing care, and is releasing the injured worker to  full duty or is stating that there isn’t a likely ratable impairment.   The quality of care to the patient is compromised by undue pressure on physicians to satisfy the insurer’s cost-cutting measures and early claim closure practices.  It isn’t unusual for an injured worker to report that his physician told him he couldn’t request more physical therapy because it would anger the insurance company, or that his physician told him the insurer wouldn’t allow him to take the patient off work. 

Under the current law, the injured worker only has an absolute right to change doctors to another on the particular insurer or TPA’s provider list within the first 90 days of the claim.   After 90 days, the adjuster can deny the request to change doctors.   Although the law requires the adjuster to have a valid reason for denying these requests, adjusters routinely deny request for a new doctor after 90 days.   One of the most significant problems with medical treatment under a workers’ compensation claim is the length of time it takes for an adjuster to authorize diagnostics and specialty consultations.  The claim may be 4 months old, for example, before the adjuster authorizes an MRI and schedules the worker with an orthopedic physician after the clinic doctor has been requesting this for 3 months.  If the injured worker doesn’t like the orthopedic surgeon the adjuster chooses to see him, and wants a consultation with another one, the adjuster may deny the request.  It then takes time to appeal this denial.   An injured worker ought to be able to choose which doctor will perform a surgery on her. 

It is unfair to have a law requiring that injured workers treat only with the insurer’s exclusive medical providers, while insurers often rely on opinions from physicians who are not on their provider lists to deny surgeries and to deny other treatment recommended by the authorized treating doctor.  Utilization review doctors aren’t on insurers’ provider lists, but these are the doctors the insurers rely on when an insurer doesn’t agree with the treatment recommendation of their own provider physicians.

Amending the law so that the injured worker can choose as her physician any doctor who is in good standing on a provider list maintained by the DIR, whose doctor agrees to accept the Nevada fee schedule, would be a fair way of ensuring adequate medical care at uniform and reasonable costs.   DIR would have the authority to remove any doctors from the panel for good cause, thereby addressing any concerns the insurers or injured workers might have about doctors who are disciplined,  or doctors who aren’t following regulations on how to treat injured workers.

 The historical reason for adopting managed care with provider lists controlled by insurers was to avert a supposed financial crisis facing the state-run SIIS.  That reason is no longer valid.   The DIR is in the process of reviewing its fee schedule so that it is reasonable and in step with customary medical charges.   Doctors who want to be on a DIR-controlled panel of providers can easily be educated as to what the law requires of doctors who treat injured workers.  Good doctors who refuse to accept less than what the fee schedule provides can again treat injured workers, and no doctors will feel pressured by insurers to adjust patient care decisions just to remain on an exclusive provider lists. 

Thank you to Ray Badger for help with the history.

Recently, I wrote a blog post about PTSD in which I discussed the Nevada Supreme Court’s decision in the McGrath case, involving a police officer whose stress claim was denied because she claimed that a series of events over 18 months in her work as a traffic  police officer, as opposed to one specific dangerous incident, caused her PTSD.  The Court gave a very narrow interpretation to Nevada’s stress claim statute, NRS 616C.180, and stated that it was a requirement of the law as written that there be a specific event exposing the claimant to stress in time of danger that causes the mental stress, and that the law excludes gradual stress.  The Court added, " Although we acknowledge that the alleged work-related harassment may have led to extreme stress, we conclude that McGrath does not qualify for workers’ compensation coverage under NRS 616C.180."  McGrath v. State, Dep’t of Pub. Safety, 159 P.3d 239 (Nev. 2007).

The McGrath case is an example of the Court not wanting to judicially legislate changes to the law which would expand workers’ compensation coverage.  Instead, the Court leaves it to our state legislators to make changes to the law, particularly changes that will significantly  impact local governments having to fiscally cover treatment and compensation benefits for police officers and similarly employed occupations such as fire fighters.

Let’s hope that we do see an amendment proposed in our next 2015 legislative session that would allow our police officers and fire fighters to get proper treatment and appropriate benefits for PTSD, without the officer having to testify that it is one, discrete dangerous event that is causing PTSD.  It seems to me that the reality is that repeated exposure to danger in the line of duty will eventually culminate in one time too many when the cumulative stress is too much.  It doesn’t make much sense to require that people in occupations that expose them to extraordinary and dangerous stressful situations every day should have to claim that  one particular event is responsible for their stress disorder.  The law as written is not consistent with the current medical literature on PTSD.    

Paralegal Garth Baker of my office was an officer with the  Las Vegas Metro Police Dept.  He has written about his own  PTSD and the lack of help currently available  for officers.  Garth is a Board Member of The Badge of Life, a group that offers psychological help for police officers. 

 The U.S. Department of Veterans Affairs appears to be stepping up efforts to identify and properly treat post-traumatic stress disorder of our service men and women.  If you are suffering from PTSD, you might want to look at the information on the National Center for PTSD.   

Certainly expanding workers’ compensation coverage to make treatment and compensation benefits more accessible to police officers and fire fighters will be costly.  But does it make any sense to treat a legitimate, disabling psychological injury that arises out of a police officer or fire fighter’s employment any different than a disabling physical injury received at work?  We seem to still be in the Dark Ages about mental illnesses.  A competent psychologist, psychiatrist, and even most primary care physicians should be able to determine whether a police officer or fire fighter is suffering from an occupational PTSD.

 Heart Disease:  Prevention Is Key to Avoiding a Denied Claim For Fire Fighters and Police Officers

     Given the number of people affected by heart disease each year, it is a tremendous benefit that fire fighters and police officers in Nevada have workers’ compensation coverage for heart disease.  Other employees do not have this coverage, even if they can show that their occupations caused their heart disease.   Fire fighters can take a few preventative steps to ensure that this benefit isn’t lost if heart disease should result in temporary or permanent disability. 

     The law requires that employers of fire fighters pay for an annual heart and lung physical exam each year for the purpose of warning employees of any predisposing conditions that lead to heart disease.  See NRS 617.457 and NRS 617.455.  If a claim is filed, the worker’s comp administrator for the employer will examine the doctor’s reports for the past several years to see whether the fire fighter was warned to correct predisposing conditions and then failed to do so.

     Predisposing conditions that are frequently cited by the examining physician are smoking, high body mass index (overweight), high cholesterol levels, uncontrolled diabetes, and high triglycerides.  Year after year, many fire fighters have the same predisposing conditions noted by the examining doctor.  If these fire fighters were to have a heart attack, you can bet that their claim would be denied.   However, from a legal standpoint in trying to overcome a claim denial, the problem is not that predisposing conditions were noted, but that the fire fighter didn’t document efforts to correct predisposing conditions that could have been corrected.

    I recommend two months before a fire fighter’s annual heart/lung exam,  that he or she does the following, particularly if predisposing conditions and warnings were noted in the previous annual heart/lung physical:

Visit a primary care physician to document your progress on correcting the predisposing condition.   Get any lab work done, discuss nutritional and weight loss efforts, get prescribed medication to help with smoking cessation, and be sure your primary care physician documents that you are making efforts to correct predisposing conditions.

Ask the primary care physician’s office assistant to send you a copy of the doctor’s dictation or notes from your recent appointment, and from any other appointments you had during the past year if you see the doctor periodically for a predisposing condition like diabetes.

Bring a copy of your primary doctor’s notes with you to the annual heart/lung physical to give to the examining doctor.  Ask that the examining doctor make a note that you are trying to correct predisposing conditions.   Your just telling the doctor you tried to change your life style isn’t sufficient; you must prove that you made efforts.

      It is your family who will suffer if you have a disabling heart disease, and your claim is denied.  Take responsibility for your health and show the heart/lung examiner that you are doing all that that is within your ability to correct the previously noted predisposing conditions to heart disease.  

 Older employees in Nevada who have a job accident resulting in an injury, or those who have an occupational illness don’t fare very well under our current workers’ compensation system.  For the majority of injured workers who have a work injury or illness who only miss a small amount of time and need a few visits to a doctor, the system works alright.  But those who have a serious work injury or occupational illness and who are older find the system isn’t very friendly to them.  Here’s why.

First, an injury inflicted on an older body often takes longer to heal.   Doctors who are hand-picked by insurers are already under pressure to return injured workers to light duty work programs or to full time employment just as quickly as possible.  If a surgery is required, you can bet that the adjuster will be scrutinizing the MRI and doctor’s notes looking for evidence of a pre-existing condition that they will want to exclude from treatment.  The adjuster may wait until you complete the form asking about prior medical conditions and wait until she gets the records from any doctors who have treated the injured body part in the past.  Obviously, our bodies do deteriorate as we age, and both your adjuster and assigned doctor may be all too ready to blame your symptoms on age as opposed to the work injury.  

Secondly, now a job is just as important to the financial survival of  an older worker than it is to a younger one.   Many of us have had to face the financial fact that working more years until retirement will be necessary as a result of a bad economy.  Most people over the age of 50 thought they would be better off financially than they  are today. . Continuing to work full time jobs  past the anticipated retirement age is now the reality for many Nevadans. The same shoulder injury to a 60-year old worker is probably going to require more recovery time than one to a 20-year old worker; more time that the older injured worker has make ends meet  receiving comp benefits or light duty wages instead of full wages. 

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1. First, know how long the adjuster has to approve or deny your doctor’s request. 

• Your adjuster has 30 days to accept or deny your Nevada work comp claim.  Expect only emergency care and clinic visits in the interim. 
• If your doctor doesn’t think that diagnostic tests or treatment are necessary now, your only option is to ask for a provider list of alternate doctors.  If you ask in writing within the first 90 days of your claim, the adjuster must approve it.  The next doctor may agree that diagnostic tests  
• Prior authorization is required for MRI’s, more than 6 physical therapy visits, surgery, neurological testing, or specialty consults. 
• Nevada law gives the adjuster 5 working days from receipt of the doctor’s request form to approve or deny it. NRS 616C.157. 
• Adjusters routinely ignore the 5-day rule by scheduling a second opinion consultation.  Or, the adjuster may ask for a review by an outside doctor hired to control claims costs, particularly if a low back surgery is requested.

2. Find out why there is a delay.

• Don’t assume it’s the adjuster’s fault.  Ask your doctor’s staff when they faxed the authorization form.  It may not have been faxed for several days after you saw your doctor.  Make sure they faxed an authorization form.
• The adjuster will also need the doctor’s dictated report if an expensive medical procedure is requested.  The adjuster may also ask the doctor answer questions about preexisting conditions or what injuries were caused by this accident.
• Politely ask the adjuster whether she received the authorization form.  If she didn’t get it, confirm her fax number, and ask your doctor to re-fax it to the correct number.  If the adjuster claims she already returned the form, ask her to please re-fax it. Many delays are due to wrong fax numbers, misplaced faxes, or the doctor’s failure to send the necessary authorization form.
• Don’t resist any second surgical consultation the adjuster schedules. It will just delay things further and could result in a suspension of your benefits.   However, if the adjuster wants multiple consults, she is probably going to deny your doctor’s treatment request.  Get legal help soon.
• Using abusive language or calling the adjuster daily will only result in purposeful delayed action by the adjuster.   

3. For denied or indefinite delays, you must write (or get help).

• If authorization is denied, don’t waste time arguing with the adjuster.  Quickly file a request for hearing, and get your doctor’s reports to present your position to the hearing officer. 
• For an indefinite delay send a fax to the adjuster, stating that NRS 616C.157 allows your doctor to proceed as if the request was approved when there is no response within 5 working days.  When your doctor won’t proceed without a signed authorization, file a request for hearing with the Hearings Division.  Attach a copy of your fax to the adjuster and a copy of the request form your doctor sent. 
• Secondly, send DIR a complaint letter about the delay. Copy the adjuster.   Attach your supporting documents.  DIR may not be helpful, but the adjuster won’t want to take the risk of getting fined for a violation of the law.   The adjuster will now quickly authorize the request or deny it, giving you the right to file an appeal.  Promptly file any appeals within the 70-day time limit.

There are two ways  a Nevada worker might receive treatment for a post-traumatic stress disorder under a Nevada workers’ compensation claim:

1)  The claimant has an accepted claim for a physical injury and the PTSD is a compensable consequence of that injury and needs treatment.  If so, the  claimant might get some psychological counseling and medications, but would not be entitled to an impairment award for the PTSD.  See, Roberts v. SIIS, 956 P.2d 790 (1998).

2)  The claimant has a compensable stress claim accepted  under NRS 616C.180.  In addition to receiving medical care and compensation benefits if out of work, the claimant may be entitled to an impairment evaluation of the psychological disorder for a permanent partial disability award.

Nevada’s stress claim statute, NRS 616C.180, provides that stress shall be deemed to arise out of and in the course of employment only if the employee proves by clear and convincing medical or psychiatric evidence that a) the employee has a mental injury caused by extreme stress in time of danger; b) the primary cause of the injury was an event that arose out of and during the course of employment; and c) the stress was not caused by a job layoff,  termination or  any disciplinary action taken against the employee.  This statute also specifically excludes any disorder caused by any gradual mental stimulus.

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