Workers' Compensation Attorney

Here’s an excellent question by someone posting a comment to my post about the difference between temporary light duty and permanent light duty: 

 I put together a series of videos on hearings and appeals to show injured workers the physical location of the two offices where hearings and appeals are held on contested Nevada workers’ compensation claims, and what to expect at each hearing.  The address for the Hearings Division and Appeals Division is 2200 S. Rancho Drive, Las Vegas.  http://www.youtube.com/channel/UChg0l0T-Nq2LFS_1iWQGf8A/videos?view=1.  

The workers’ compensation community lost one of the most authoritative and fairest rating  physicians on November 30, 2013.  Richard Kudrewicz, M.D. , or Dr. K, as most of us called him, performed about ten times as many permanent partial disability evaluations on Nevada injured workers as most of the rating physicians on the DIR’s rotating list.   Because adjusters and attorneys can agree on who to use for a rating physician, he was often agreed upon by both claimants’ attorneys and defense attorneys to do a second or third  rating in contested cases.  He was extremely knowledgeable about the  AMA Guides, was always respectful to injured workers, and whether you agreed with his conclusions or not, you knew that you were getting his honest opinion regardless of who the parties were that were  involved.   In addition to his integrity, he had a great sense of humor.  My condolences to his wonderful family.  This is a  terrible loss for injured workers, too. 

   Las Vegas again hosted the annual Larson’s National Workers’ Compensation Advisory Board Meeting at the National Disability and Workers’ Compensation Conference  in November..  Advisory board members are attorneys though out the United States who either post blogs, or write expert commentary on the laws in their home states.  These attorneys also participate in discussions and debate with each other about current developments and practice trends in workers’ compensation law.       Lex Larson, on the Executive Committee for the Advisory Board,  is one of the current authors, and the publisher of the most authoritative multi-volume treatise on workers’ compensation law.    Representing Nevada, I was mostly surrounded by attorneys who represent employers and insurers in their states.   This is always a good opportunity for me to hear a more balanced view of what is happening nationwide to workers’ compensation laws. 
     We discussed that while each state has its own system to address the needs of injured workers, the following trends were important in almost every stated:  1. Use of outside utilization review companies to review requests for medical procedures and expensive diagnostic testing, 2. Problems with opioid medication to control pain, 3. Medical marijuana, 4. So-called evidence based medicine, and 5. Increased medical costs of claims.   
    The discussion really became interesting though when the Texas defense attorney suggested that studies showed higher injured worker satisfaction with their claims experience overall under Texas’ opt-out system.  In Texas, an employer is not required to purchase workers’ compensation insurance to cover injuries and occupational diseases of their employees.  An employer can instead purchase a type of health insurance and can choose the rules.  ( There are no permanent partial disability awards in Texas.)  Texas exported its opt-out philosophy to Oklahoma, whose legislature decided that it didn’t want Texas’ economy outpacing Oklahoma’s economy.
     Debate between the claimants’ attorneys and the defense attorneys was  whether employers were shifting the cost of workplace injuries more directly to society and taxpayers without first paying for work injuries as a cost of doing business. Some argued that our Medicare and Medicaid systems should not bear the cost of work injuries.        While most states were not ready to hop on the opt-out band wagon, there is a trend is for other statutes to experiment with "carve-outs" to its systems.   In California and Illinois, for example, unions have successfully obtained legislation allowing for the same benefits, but different administrative processes that are supposedly more favorable to union members.  A New Jersey attorney spoke about an iron workers’ union in his state wanting a carve out from their traditional laws to afford union members greater choice of physicians and higher benefits.  Nevada passed a carve-out law for unions years ago, but not much has come of it. 
      Final comments from Lex Larson were that the traditional workers’ compensation systems in the various states were threatened by a sense of competition among states for new business, and opt-outs and carve-outs were becoming more attractive.  He also attributed this trend to the recent dominance of conservatism in our county.  

      The Nevada Justice Association, comprised of plaintiffs’ attorneys, has a small off-shoot group of workers’ compensation attorneys who represent injured workers.  I joined this group, started by Billie-Marie Morrison of Craig Kenny & Associates this past year, and I’m glad I did.  The attorneys who attend freely share their practice tips, and they are very dedicated to improving the Nevada workers’ compensation system for injured employees.

      Most of this group attended the educational conference  by the Division of Industrial Relations, Workers’ Compensation Section  a few months ago.  During open question and answer sessions with the DIR  department heads, we called  DIR on the carpet for not complying with the law that requires that DIR keep accurate statistics about DIR complaints filed, fines imposed, and benefit penalties paid by TPA’s and insurers.  We  also expressed our disappointment in the DIR complaint process as a remedy for negligent and incompetent claims handling.  

      At the DIR conference, the DIR Administrator, Donald Jayne, his chief attorney, Don Smith, and Southern District Manager, Chuck Verre, promised to meet with us claimants’ attorneys to discuss our concerns in greater detail.  Just prior to our meeting last Thursday, it was announced that Donald Jayne had left the DIR.  However, Chuck Verre and Don Smith, along with Susan Sayegh,   Southern District Manager, fulfilled their promise to us and attended our meeting. 

      I still didn’t get a satisfactory answer as to DIR’s failure to keep accurate statistics.  Mr. Verre again  blamed it on their antiquated computer system.  He couldn’t explain why the person in charge of statistics at DIR had been supplying me with statistical information the past two years, and he wouldn’t comment further on whether I had been given correct numbers or not.   I still had the impression that this was information DIR did not want to disclose to us.  However, they did listen to our main complaint that DIR was ducking its responsibility  to investigate insurer violations when it tells us that it can’t investigate if we have also requested a hearing before a Department of Administration hearings officer.   

      Perhaps the most encouraging bit of information I learned during this meeting was that 80% of the DIR investigators are new.  If the new chief administrator who replaces Don Jayne has a pro-active approach to investigating the complaints of injured workers who believe that they have been the victim of insurers and TPA’s violating the law, then perhaps the DIR system will work as envisioned with these new investigators.

     Mr. Verre asked me whether I had an agenda in wanting the statistical information on fines and benefit penalties, implying that I was gunning for a new law at the next legislative session to allow bad faith lawsuits again.  I replied that when the law was passed in 1995 that prohibited bad faith lawsuits and replaced them with the DIR system of administrative fines, I was co-counsel on a bad faith case that was scheduled for trial.  Nineteen depositions had already  been taken  when the Nevada Supreme Court held that the case had to be dismissed after passage of the new law providing for administrative fines and penalties as the exclusive remedy for bad faith.  Madera v. SIIS, 114 Nev. 253, 956 P.2d 117 (1998).  

     I told Mr. Verre that bad faith lawsuits are expensive and take years to reach trial.  I wasn’t sure that simply allowing bad faith actions was the solution for improper claims handling, although suing an insurer for actual and punitive damages certainly commands an insurer’s attention better than a $250 fine and a $5000 benefit penalty.    I told him that what I was hoping for, much sooner than when the legislature meets again in 2015, was a different approach by DIR to enforcing the laws we already have on the books.  We shall see. 

     I looked at a very interesting award calculator devised by a Maryland attorney based on his review of thousands of work comp awards in Maryland. It asks the injured worker to put a number from 1 though 10 on the level of pain and interference with activities for their injury,r the average weekly wage, and how long the injured worker was off work.  It does not ask for the injured worker’s age. Byron Warnken, the author the website with this calculator, tells me that it is very good at roughly predicting what a client will receive for an award. The link to his website and calculator is http://www.mdcomplaw.com/.

     When I plugged in information for a fictional injured worker with a low back injury making $500 a week with a moderate level of pain and disability (number 5 on the calculator), the award came back at $18,500. I then ran the numbers with a 5% impairment, using Nevada law statutes and regulations on calculating permanent partial disability awards. The probable award was much less, in the $7500 to $11,500 range, depending on the injured worker’s age. However, it is an interesting tool, and Attorney Warnken does caution injured workers that their actual projected award could be much greater or much less depending on a number of other factors .

     There are some injuries that are very easy for me to predict the PPD award, once I know the average monthly wage, the chronological age of the injured worker, and the probable percentage of impairment. However, the PPD award for most serious injuries cannot be predicted with a high degree of accuracy without the attorney knowing what objective diagnostic tests show, the operations performed on the injured body parts, what additional diagnostic tests were done, and what residual problems the injured worker is having.   I usually need a lot  more information than Attorney Warnken’s calculator to predict a probable award.

      Once you give a client a dollar figure at an initial consultation, the client invariably feels disappointed with the attorney if the client hires the attorney based on an expectation of getting that dollar figure and if  the actual rating results in a lower award. I don’t mind discussing the range of percentage for similar injuries and some of the factors the AMA Guides want the rating doctor to take into account when calculating the whole person percentage. I like my clients to be educated about the process and encourage questions. If I can give a realistic percentage of impairment that I would expect at the end of the case, I will give that information to an injured worker during a free consultation with me.  Likewise, if I think it will be misleading to the client and create unrealistic expectations for a large settlement, I won’t attempt to give a dollar figure.  

  Injured workers with accepted workers’ compensation claims should not be getting bills for medical treatment from  hospitals, doctors, an anesthesiologist, or radiologist.  You know whether you have an accepted claim or not by whether you have received a letter from your self-insured employer or from a third-party administrator that says your claim is accepted.  (An acceptance or denial letter must be sent by the adjuster handling your claim within 30 days of the adjuster receiving a copy of the C-4 Claim for Compensation form you completed when you first went to the clinic or hospital for treatment of your injury or occupational illness.)

The most important benefit under the Nevada workers’ compensation laws is the right of the injured worker to obtain medical treatment without having to pay a co-payment or deductible.   However, many of my clients who have accepted claims still get bills from medical providers.  

One reason a medical provider may be billing the patient instead of the workers’ compensation adjuster is that the provider never got good billing information from you or your doctor when you were treated.  A phone call to the provider who sent you the bill with the name, address, phone number, and fax number of your workers’ compensation adjuster, along with your claim number should take care of that problem.  I always send a letter with this information in addition to the phone call to have a record that I have notified the medical provider that this is an accepted workers’ compensation claim and who to bill.  I also copy the adjuster on this letter so that she knows that there is a medical provider who  needs to be paid on the claim.  

Do not ignore the bills and collection letters.    Your credit can be adversely affected, and it will be a tremendous hassle to undo that damage later.   Ambulance services rarely have the correct billing information if you are unable to respond to their questions when you are injured.  Call and write to them with the correct billing information on your claim. 

Sometimes the medical provider has the correct billing information for your workers’ comp adjuster and still bills the injured worker.  This is a violation of the law.  NRS 616C.135 states that a provider who accepts a patient for treatment of an industrial injury or illness may not charge the patient, but must charge the insurer.  That law also states that if the health care provider violates this law, the Division of Industrial Relations shall impose an administrative fine of not more than $250 for each violation.  

I just wrote a letter to the DIR on behalf of one of my clients who was billed by a radiology company where the bill stated on its face the correct name of the third-party administrator handling the compensation claim, with the notation "w/c", meaning workers’ compensation.  There was no explanation on the bill why the radiologist was billing the patient as opposed to the known work comp administrator.  It will be interesting to see whether DIR does something with my complaint and actually fines the radiologist. 

I’m wondering how many injured workers who don’t have legal representation have paid bills they weren’t required to pay, particularly to radiology companies who are notorious for billing injured workers.  Let me hear from you if you think you have paid bills that really weren’t your responsibility.  Did the medical provider reimburse you?

Obtaining appropriate medical treatment for  post-concussive symptoms  from a work accident can be as frustrating as the symptoms of a concussion.  A concussion is the term use to generally describe a head injury that may or may not result in the loss of consciousness.  It is unusual for someone who has a severe blow to the head, such was when a freight elevator door hits the top of the skull,  not to remember or be sure whether they lost consciousness.  

The most frustrating thing about concussions is that the CT scan of the brain may be normal, and there may be no other diagnostic evidence of an injury, but the post-concussion symptoms may persist.  Those symptoms may include migraine-type headaches, dizziness, difficulty waking in the morning and sleepiness throughout the day, blurred vision, fatigue, and even depression.  Because the cut on the head that was visible to co-workers is gone does not mean that the more troublesome symptoms are healed and gone, too.  

Neurologists, the specialty physicians who are best trained to treat concussions,  cannot predict exactly when an individual’s symptoms will subside.  Other than prescribing pain medication for the most severe of the headaches, there is little the neurologist will do after ordering diagnostic testing to determine whether there is bleeding in the brain.  However, a good neurologist can properly diagnose what symptoms you are having that may be caused by the work accident, and whether an injury to the cervical spine (neck) might also be involved and the cause of your pain.  A neurologist will also educate you about your concussion and reassure you that barring any additional blows to the head soon after your accident, most concussions do not result in permanent brain injury.  

It is difficult to rate post-concussive symptoms for permanent impairment under the  AMA Guides to Evaluation of Impairment, 5th edition.  Subjective pain complaints are not ratable.   If the diagnostic tests ordered by the neurologist do not show a physical brain injury, testing by a neuropsychologist may nonetheless demonstrate a physical brain injury that can be rated.   An individual would have to have supporting medical reports of a continuing brain injury for the adjuster to even schedule a rating evaluation.  Then,  the rating physician, who should be a medical doctor, will be looking for any disturbance in the level of consciousness or awareness that affect the activities of daily living, impairments related to memory loss and an inability to function, and any verifiable emotional or behavioral impairments. 

 What happens when you are injured working for one employer, and you have two jobs and two different employers?  This is called concurrent employment in the Nevada regulations    If you are like most injured workers and you never talk to your claim’s adjuster,  you might not know how important your second employment is to your claim.  

If your injury disables you temporarily from working both jobs, you might be entitled to temporary total disability benefits (TTD).  Those benefits are 66 2/3 of your average monthly wage.  Unless you ask the adjuster to add in the wages you earned at you second job, the adjuster will only use wages you earned at your first job  when she calculates your benefits when you are taken off work by your doctor.

Even though you weren’t injured while working for your second employer, a Nevada regulation allows you to have the wages from your second job combined  with the wages from your first job as a base from which to calculate all benefits.  This may greatly increase your TTD benefits. It may also significantly increase your permanent partial disability (PPD) award at the end of your case. 

Things can get a bit more confusing when an injured worker is able to do light duty work for one employer, but not the other one.   Additionally, the second employer is entitled to regard your work injury as not being a job injury as far they are concerned. The second employer, for example, may offer light duty  to employees hurt on that job, but may not give light duty work to employees who are injured  while working on a different job for a different employer.  In that case, the injured worker will want to check that the net wages received from the employer are at least equal to the employee’s compensation benefits the employee would receive if the employee were taken off work completely.

 If you are wondering how often the hearings or appeals officer rule in favor of insurers or injured workers, here are a few statistics from the Department of Administration Hearings Division that may give you a rough  idea.   These statistics are for the state’s fiscal year that runs from July 1, 2011 to June 30, 2012.  Statewide, there were 10,643 cases scheduled before the five hearings officers in Las Vegas and the two in Carson City.  There were 4,511 cases filed before the six appeals officers in the south, and the three in the north.

Claim denial and medical benefit issues made up 73% of the issues appealed to the Hearings Officers.  34% of those cases affirmed the determination of the insurer, 11% were reversed, 16% were remanded, 22% were dismissed as settled, 8% were dismissed, 8% were bypassed to the appeals level, and 1% is designated as "other".   The remanded cases could be a remand for the insurer to make a new determination based on new medical reporting or a second rating obtained by the injured worker.  

According to these statistics, the hearings officers resolved 56% of the cases they scheduled for hearing.  Claim denial and medical benefit issues comprise 80% of the issues on appeal.  The statistics do not show how many appeals from the hearing officers decisions were filed by injured workers or by insurers.  They simply show that 29% of the cases heard by the appeals officers affirmed the decision of the hearing officers, 11% reversed the underlying decision of the hearing officer, 36% were dismissed as settled, 19% were dismissed (probably for procedural reasons), and 2% were remanded.  

The Nevada Attorney for Injured Workers represented just under a third of the injured workers appearing before the appeals officers, while two-thirds were represented by private attorneys, and a brave 5% represented themselves.  

Only 2.3% of the appeals officers’ decisions were appealed to the District Court.

Many of the statistics pertain to compliance by the hearings officers and appeals officers with the statutory times for scheduling cases and rendering decisions.  They show a high rate of compliance with the statutory time frames.   These statistics are somewhat misleading however with the length of time it actually takes to have a hearing take place before an appeals officer if the parties have witnesses and don’t want to be on the appeals officer’s stacked calendar.  A stacked calendar is the first scheduling of the case, and several cases are scheduled for the same appeals officer every hour.  As the statistics show, a good number of cases are settled, so it is expected that on the day of the hearing, many of the cases on the stacked calendar will not go forward.  However, it sometimes happens that the four cases set for 9 am with a particular appeals officer haven’t settled, and there simply isn’t time for them all to be heard before another four are scheduled to be heard with that appeals officer at 10 am.  

The reality is that if you need an hour to present your case to the appeals officer, you need to remove it from the stacked calendar and obtain what is called "a time certain" for a hearing when the appeals officer can schedule an hour or more for just your case.  This requires coordination with the opposing attorney who may have a very full calendar and not be available for a more lengthy hearing for two months.  Additionally, the appeals officer are now scheduling these "time certain" cases several months down the road.  If the injured worker has a denied claim and isn’t receiving benefits at all, this delay in obtaining a hearing can be devastating.