Workers' Compensation Attorney

All injured workers should get a copy of their medical records at some point.  Remember that your employer is being copied by the adjuster on all his/her letters to you and on some of your medical records.  You should know what your doctor says about you and your injury, particularly if you are having problems with your claim.

NAC 616C.120 confirms that the injured employee has the right to inspect or obtain his health care records pursuant to NRS 629.061.   That law allows a patient to request a copy of records from any health care provider, which includes therapists.  The law states that the provider may charge the patient or their representative (attorney) a copy charge of 60 cents a page.  Call ahead and allow the provider’s office staff a few days to get your records copied and ready for you to pick up.

Medical providers, including physical therapists, who tell injured workers that they must get a copy of their records from the adjuster are wrong in not allowing a patient to obtain records directly from the provider.

What an injured worker ordinarily gets from their doctor after each office visit is a Physician Progress Report, a one-page form which may or may not be slightly modified by individual doctors.  This Physician Progress Report (PPR) gives a brief diagnosis, treatment plan, any work restrictions or off work instructions by the doctor, and the date of the next office visit.  In addition to this form, the insurer receives a dictated report by your doctor after each visit.  Rarely is this dictation ready immediately following an office visit.  You must specifically request a copy of it from either the doctor’s office or from the adjuster handling your claim.

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The Nevada Division of Industrial Relations has determined that meals and lodging for attending physician appointments will be paid at per diem reimbursement rates set by the U.S. General Services Administration. The rates vary by season and by the city or county that is your destination.  Your request for reimbursement for meals and lodging should be made on the mileage reimbursement form you use to request mileage payments from the insurer.  Please note that the rates also vary  for meals depending on whether it is your first or last day of travel.  Most rates for meals are about $65 – $70 a day for three meals.  

Orthopedic surgeon James Dettling, M.D. specializes in shoulder and knee injuries.  About half his patients are injured workers treating under a Nevada workers’ comp claim.   He and long-time medical assistant, Patrick Boland, and their indispensable office manager, Diane,  stopped by my office today to meet my assistants and to chat over lunch.  I’ve known Dr. Dettling to give straightforward, honest opinions over the years, and I see excellent surgical results  .  I enjoyed having the lunch hour to ask Dr. Dettling about the problems he has treating work comp patients.

 We commiserated about the increasing use of retired out-of-state orthopedic doctors hired by insurers to do peer review of treatment requests.  (In Nevada, surgeons must request pre-authorization from adjusters for all non-emergency surgeries, for diagnostic tests like MRI’s, and for physical therapy.)  Shoulder and knee surgeons aren’t second-guessed as much as the spinal surgeons, but  Dr. Dettling noticed that he too was having to deal with  denials from  doctors who cite outdated treatment guidelines. For example, he told me that  according to current orthopedic standards, physicians should be prescribing many more physical therapy visits than the number allowed by industrial insurers following rotator cuff repairs.

Dr. Dettling and any doctor who actually provides  care has a legal  doctor/patient relationship and must adhere to current and real peer treatment guidelines.  Hired-gun doctors for insurers are not accountable for their  judgment errors in denying treatment requests by treating doctors.  Moreover, under Nevada law, an injured worker cannot sue an industrial insurer for bad faith or negligent claims administration, so it is essential that treating doctors maintain their integrity and continue to request treatment according to their best judgment, regardless of anticipated denials by the insurer.  An experienced work comp attorney can deal with the denials so long as the treating doctor continues to make the requests for the best treatment.

Dr. Dettling stressed that with a surgical patient, a successful outcome does not just depend on his skills.  Equally important is the expertise of the post-surgical physical therapist assigned to rehabilitate the patient.   For that reason, he asks for particular therapists to work with his patients.  I had not realized that, so that is something I can keep an eye on for my clients to make sure that the therapist the doctor wants is approved by the insurer.

Dr. Dettling and I  agreed that the lengthy delays in obtaining necessary MRI’s and surgery approvals on comp claims cost patients more than lost wages.  He is particularly frustrated when he sees a patient with a bicep tendon rupture that could have been surgically treated if the patient had been referred to him soon after the accident.

 Patrick and Dr. Dettling complained about adjusters who don’t sympathize with patients who cannot drive themselves to work after shoulder surgeries.  Likewise, he characterized as cruel those employers who want him to substitute a non-narcotic pain medication just so the hurt employee can report for a mindless light duty job just days after surgery.

We also talked about the power of the third-party administrators and insurers to  control their provider lists.  He stated that he would support a legislative change that would allow injured workers to treat with any doctor who is willing to accept  what the Nevada fee schedule allows.

Diane, the office administrator, and Dr. Dettling impressed me with their knowledge of what is required to reopen a Nevada claim.   They accept cash pay from former clients who need a letter from the doctor documenting a worsening of the industrial injury, and then refund the payment to the patient if the insurer reopens the claim and pays the doctor.  Thank you,  Dr. Dettling, Patrick and Diane for an informative luncheon.

                    Re-opening Your  Nevada Workers’ Compensation Claim

 Know whether you have re-opening rights and when to time your request. Only injured workers who received a permanent partial disability award, or who were off work due to the work injury or occupational disease have lifetime reopening rights. The law makes it more difficult to re-open a claim within a year of the date a claim with lifetime reopening rights was closed. However, if you weren’t off work or didn’t receive a PPD award, you may only re-open within a year of the date your claim was closed. If less than $300 in medical costs were paid before your claim was closed, you cannot re-open your claim. NRS 616C.390.

2.         Attach a convincing medical report to your written request to re-open your claim.
The industrial insurer will not pay for you to get this medical report. You must either pay cash or use your health insurance to get a medical report to attach to your re-opening request. Also, be sure to include your old claim number.

3.         The medical report must say that your work condition has worsened and that you need more treatment. If the report only says that you have increased pain and that the doctor wants an MRI to see whether your injury has worsened, your re-opening request will be denied.  You may have to pay for an MRI for your doctor to be able to say that your injury has worsened and to recommend specific treatment. Give your doctor a copy of your PPD rating report or your old medical records so that your doctor can discuss how your injury has worsened.

4.         Don’t attempt re-opening your claim until you have what is necessary.

If your re-opening request is denied, and you don’t win on appeal, you can’t request re-opening again for a year. Keep in mind that the insurer won’t re-open for you to get more pain pills or a few more sessions of physical therapy. Nor will the insurer re-open your claim for you to get treatment for a part of your body that wasn’t ever accepted on the claim.  

It takes time to reopen your claim.

The insurer has 30 days to respond to your letter requesting re-opening.  If the doctor’s report you attached is recommending surgery, don’t expect the insurer to automatically authorize surgery. The insurer may want another medical opinion after another exam, or may send the request to a reviewing doctor. The insurer will also require that your treat with a surgeon on their provider list. If you go ahead with medical treatment using your health insurance, the industrial insurer won’t be obligated to reimburse you for any co-pays or deductibles you incurred unless the surgery was a true emergency. You will also be required to submit off work or restricted work slips to obtain compensation benefits, and the insurer won’t pay benefits before the date of your re-opening request.

      Channel 3 had an inaccurate and one-sided report on fraud by injured workers yesterday.   Billie-Marie Morrison, a wonderful workers’ compensation attorney with Craig P. Kenney & Associates wrote to the the reporter and asked him to make corrections and to also report on insurer and employer fraud.  We will see whether he does that. Meanwhile, let’s hope that insurers don’t seize upon this false picture painted by the media to deny more legitimate claims. 

      I’d love to see some reporting on the number of employers who falsely report payroll to pay lower premiums or who don’t bother  to purchase coverage for workers in Nevada.  I’ve got a case right now involving a Las Vegas construction company who had a  carpenter sign an agreement that he wouldn’t be covered in the event he was injured.  Despite the fact that Nevada has a law that clearly states that a licensed general contractor is responsible for providing workers’ compensation coverage for any

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I had a Metro cop come to the office the other day for a free consultation.  When I greeted him in the waiting room, before he even rose from the couch to shake my hand, he stated that he didn’t like or trust lawyers.  I smiled and replied that most people I meet do have a bad impression of lawyers these days, particularly if they have had to hire one for a minor criminal offense or felt they got less than their personal injury attorney after an auto accident.  Police officers deal with lawyers all the time, and are subjected to cross-examination directed at the officer’s credibility or ability to recall details of accidents.

As I was listening to this officer’s complaints about lawyers, my son’s 102-lb puppy, named  Billy, barged through the door to rest his large head on the officer’s thigh, just inches from the gun on his hip.  It took me a moment to corral Billy to a manageable energy level in my office, but the distraction and rough start to an initial consultation with this potential new client, somehow instantly impressed this officer that I was a good person, even if I was a lawyer.  The officer and I had a good meeting.  He seemed to enjoy the sounds of my  beagle Susie snoring loudly under my desk, while  Billie gnawed audibly on a ham shank behind his chair. I sat across from him with my long-haired Doxie occupying half of my chair, and noticed that the dogs had helped him relax enough to listen to me. 

 I don’t mean that it was a good meeting just because he decided to hire me to represent him at the end of the consultation.  It was good because  he learned some new  things from me that he hadn’t considered about his claim.  I got the feeling that he trusted my expertise when he left, but I wondered how much of that was attributable to my discussion with him, or the simple presence of my three dogs in the office.   

I keep the hounds in the office because these three dogs are very spoiled, hopping into the car to go with me most places.  Petting a dog throughout the day also helps to calm me when dealing with an unreasonable insurer.   But, a  side benefit to having the pleasure of their disruptive company all day is having people instantly think I’m probably a good person.   You can have the most experienced and brilliant lawyer, but if her or she doesn’t know how to care about other living beings, the lawyer is probably no good for the client.  

Recently I recorded some videos on the Nevada Workers’ Compensation Law Hearings and Appeals Process. I take you inside the hearings and appeals court to show you what to expect and to describe what will take place.  When you have 15 minutes, click on the video playlist below to view and feel free to comment.  I love hearing from you.

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 My neighbor, Carey Colt Payne, was telling me about his new website on laws pertaining to the ownership and transfer of firearms.  Carey is a highly respected probate attorney in Las Vegas who is a descendant of the famous maker of Colt guns. He told me that as a gun collector he has amassed a wealth of knowledge about the various state and federal laws that apply to gun ownership.  As a probate attorney, he is particularly concerned for families who pass on valuable collector firearms from one generation to the next.  These families are often unaware of the laws that apply to them and don’t know about gun trusts.   

  I know nothing about guns, but have many friends who hunt or who have strong feelings about their right to possess  firearms.  I visited his website at www.lasvegasarmstrust.com, and was truly impressed at how  comprehensive it was. It is an incredible resource for anyone who wants to learn about gun laws,  including possession of machine guns, what to do when you buy or sell a gun, transporting arms across state lines, child safety, liability issues, concealed weapons, and the creation of arms trusts.   I encourage all gun owners to visit Carey’s site to make sure that you are complying with the law and to think about whether you should transfer ownership to a gun  trust.  Thank you, Carey, for making this valuable information available to everyone.  

 Think twice about posting those photos of you playing softball at your family reunion last weekend if you have an open workers’ compensation claim.  Your Facebook photos or Twitter posts about what you are doing could be ammunition gathered by an insurance  company investigator to be used to deny your  claim.  Illinois workers’ compensation attorney Mike Hefland posted a good article about how adjusters are using social media to deny claims or to reduce benefits. Photos don’t always tell the complete story, of course.  You may have a perfectly reasonable explanation for what you are doing in the posted photo that is consistent with your injury claim, but why post anything that could be misinterpreted?

  Be aware that when you file a claim, you have an insurance company on the other end whose job it is to reduce costs for their insured.  The insurance company doesn’t know you, and they will not hesitate to have you followed, videotaped as you shop for groceries, or allege that you are fraudulently claiming benefits if you are creating evidence that could support those allegations. 

    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. 

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