Workers' Compensation Attorney

For those with accidents occurring after July 1, 2013 through July 1, 2014, the maximum state average monthly wage is $5,290.70.   That figure comes from the Nevada Department of Employment, Training and Rehabilitation, Employment Security Division.   That figure is the maximum amount that can be used as an injured worker’s average monthly wage if the injury occurs between that fiscal year. 

The benefits on that average monthly wage of $5,290.70 is 66 2/3, which comes out to be $814.58 per week (count each of the 7 days).  The amount that would be in a monthly benefit is $3,527.13.

If you make less than the state maximum, your average monthly wage will be based on your actual earnings for a period of either 12 weeks before your injury, or one year.  The adjuster must use the time period of earnings that will result in the highest average monthly wage for you.  

Even if you are not our of work and not entitled to lost time compensation benefits, if you think you will have a permanent, ratable impairment, you will want to make sure that your average monthly wage calculation is correct and as high as possible.  The average monthly wage is one of the three factors that determines how much money you will receive for an impairment when your case closes. (The other two factors are the percentage of impairment, and how old you are when you are rated for impairment.) 

You can have your average monthly wage corrected at any time before you accept the final permanent partial disability award in a lump sum.  If you think your average monthly wage on your claim is too low, be sure to schedule a free consultation to have an attorney review it for you.

On August 15-16, the Division of Industrial Relations (DIR) held its annual educational conference for anyone interested in the Nevada workers’ compensation system.  I was unable to attend many of the break-out sessions, but was present for the panel discussions with the key DIR employees responsible for insurer compliance with the law. 

Previously, i wrote in a blog post that DIR had provided me with statistics on the number of complaints that result in actual violations of the law by insurers, the number of fines assessed, and the number of cases in which a benefit penalty is awarded to an injured worker.  It is generally the feeling among attorneys who represent injured workers that the DIR was not doing an adequate job in ensuring that insurers comply with the law.  I had asked for statistics on complaints to determine whether this perception had a legitimate basis.

The first time I asked questions regarding the  DIR’s research department’s recent email to me with last year’s statistics, I was told to return the next day to ask the questions.  I did, and I wasn’t at all satisfied with the answers.  Don Smith, Esq., Senior Division Counsel, and Chuck Verre, Chief Administrative Officer for DIR told me that they didn’t think the statistics I had been given by Ruth were accurate.  However, they couldn’t give me actual numbers themselves because they said they had a bad computer system.   They both thought that the number of benefit penalties that had been awarded was greater than 8 for the last fiscal year.

Several of us trouble-maker attorneys reminded DIR that they are obligated to keep statistical information pursuant to statute and to make the information public.  I think Donald Jayne, Administrator for DIR was sincere in his promise to us that DIR would get better computer programs so that accurate statistical information is available.  While the answers DIR gave us about their investigation process were lame, I think the conference did hammer home the point that DIR needs to do a better job for injured workers.  

Injured workers have the right to file an appeal if the claims adjuster does not respond to a written request within 30 days.  Attorneys are usually the only ones that know that when the adjuster fails to respond, it is called a de facto denial, and a hearing officer can decide whether the requested benefits can be ordered.    What usually happens is that the injured worker who does not have an attorney waits and waits for the adjuster to respond to a request.  The request can be for any kind of benefit, such as a request to change doctors or a request for temporary total disability (TTD) benefits.  

NAC 616C.094 states that the adjuster must send a written response to any request from an injured worker within 30 days.  That regulation also states that the Nevada workers compensation adjuster must  include a form to file an appeal. Because the insurer is violating that regulation by not sending a written response, theoretically, the DIR should fine the insurer who doesn’t send a response on time.  But, DIR rarely fines insurers for failing to respond to written requests.   Instead, the injured worker will get quicker action by filing an appeal of  his or her non-response as follows:

1. Download and print a Request for Hearing form (or find one among the letters the adjusters has previously sent).

2. Attach a copy of the request letter you sent to the adjuster.  Make sure you don’t send this before 30 days have elapsed from your request letter or the appeal will be dismissed. 

3. Be sure you attend the hearing that will be scheduled about 3 weeks away. You can request to do the hearing by phone if you clearly ask for it and give your phone number.  

I’m grateful that my social media consultant knows only what she’s read in my blog posts about the Nevada workers’ compensation system, because she reminds me that my intended readers, like her, may  know little about the system.   After reading my last blog post about DIR complaints, she saw that I didn’t  give the full name of the Nevada state agency.  Sorry about that.  Here is more information about DIR, which is the Division of Industrial Relations, a sub-agency of the Nevada Department of Business and Industry. 

Below is a brief description and web site link to the four main Nevada state agencies responsible for our present workers’ compensation system in Nevada:

1. Department of Business and Industry- a large state agency that has within it the

   Division of Industrial Relations, Workers’ Compensation Section  (DIR) 

• Regulates insurers, self-insured employers, medical providers, and third-party administrators,
• Proposes and holds hearings on regulations (NAC 616),
• investigates  complaints that an insurer or TPA has violated the law, and may impose fines and penalties for violations of the law,
• Funds and oversees the Nevada Attorney for Injured Workers, the state attorneys who provide free legal representation to injured workers at the appeals officer level of hearings.
•  Controls the list of rating doctors who do impairment evaluations on injured workers’ for possible awards for permanent impairments due to  work injuries or occupational illnesses,
• Verifies that a particular employer has workers’ comp coverage so that doctors, clinics, and hospitals can file claim forms of injured workers,
• Investigates cases where the employer doesn’t have a workers’ comp policy so that the injured worker can have the claim paid from the Uninsured Employers’ Claim Fund,
• Provides educational seminars to the public, training for claims adjusters and vocational rehabilitation counselors, and brochures to medical providers, employers, and injured workers
• Posts the current statutes (laws) and regulations and approved claim forms on its web site, www.dirweb.state.nv.us./wcs

2. Department of Insurance 

• Reviews insurance rates and licenses self-insured employers, third-party administrators,
• A list of all licensed work comp insurers and TPA’s in Nevada are at www.doi.state.nv.us.

3. Department of Administration

• Operates the Hearings and Appeals Divisions which decide contested injured workers’ appeals of adverse determinations by insurers or their TPA’s 

4.  Office of the Attorney General

• Has a fraud unit that investigates possible workers’ compensation fraud by injured workers, employers, or medical providers, and brings criminal charges.

5. Office of the Governor

• Consumer Affairs has an ombudsman that can look into complaints by injured workers, but the ombudsman has no authority to order benefits or medical care.

Names of the supervisory employees and department heads of the above agencies are on the various agencies’ web sites

 Last year when I contacted the Research and Analysis Supervisor of the Workers’ Compensation Section of the Industrial Insurance Regulation Section of the DIR, I was told that only 31 benefit penalties were issued in 2011.  I just received statistical information for Fiscal Year 2013 (July 1, 2012 to July 1, 2013), and over this past year,  only 8 benefit penalties were issued.  Investigations were requested 963 times in the past fiscal year for the entire state of Nevada. 

I was told that of the 779 DIR investigations that were completed in the last fiscal year, DIR found only 184 violations of the law by an insurer or TAP (third-party administrator).  70 complaints resulted in administration fines assessed, and only 8 resulted in a benefit penalty in some amount awarded to an injured worker  I’ve asked some follow-up questions to determine how much money was actually collected in fines, and how much was actually paid to injured workers on assessed benefit penalties.  I know from my discussions with other claimants’ attorneys that most of those 8 benefit penalty cases are still in the appeals process, with the insurer and/or TAP fighting the penalty.  

Filing a DIR complaint to allege that the industrial insurer is violating Nevada law governing work injuries is the only remedy available to an injured worker in Nevada.   See NRS 616D.030.  An injured worker cannot sue his employer or they employer’s insurer for bad faith or negligence in paying benefits or delaying medical care.  The Nevada legislature thought that injured workers would be adequately compensated by DIR awarding them  benefit penalties,  and that insurers would follow the law if they were subject to administrative fines.  However, if only 70 fines were assessed in the 184 cases where insurers or TPA’s  violated the law,  and only 8 benefit penalties were imposed, the current DIR complaint system does not provide any real incentive for insurers and their TPA’s to administer workers’ compensation claims correctly. 

 Nevada injured workers with neck or back injuries frequently ask about what will happen to their claim if they refuse a particular treatment recommendation.   Usually those Nevada injured workers have not noticed improvement in their neck or back injuries after several sessions of physical therapy, medication  and job restrictions. Their treating doctor may then refer the patient for an epidural injection, an invasive procedure.  Or, perhaps the injured worker already  had one or more epidural injections that did not help, and the treating doctor next recommends surgery.  What happens to the claim if the injured worker doesn’t want an epidural injection or surgery? 

An injured worker has the right to refuse injections or surgery.  The adjuster or treating doctor cannot threaten to cut off benefits if the claimant doesn’t want to risk the side effects of an injection, or simply doesn’t like needles, or does not want to undergo surgery. 

However, be aware that there are only several treatment options for neck or back injuries that are routinely authorized by industrial insurers. (Treatment guidelines rarely allow for experiemental or controversial treatments.)  A treating  doctor cannot keep a claim open indefinitely if  the patient is not getting any active treatment and the  injury isn’t getting any better or any worse. Therefore,  If there isn’t anything else your doctor has to offer you  after you decline particular treatment, your doctor will have to state that you have reached a point of maximum medical improvement (MMI).   

Once you are MMI, the doctor checks a box on the physician progress report to let the adjuster know whether you have a likely ratable impairment and whether you have permanent work restrictions.  The claim then closes because there is nothing left to be done medically for you (except perhaps to prescribe more pain medication).  

I have seen cases where a treating surgeon has reported to the adjuster that the injured worker should not get rated for permanent impairment because the patient refused surgery.   Surgeons are wrong to report that there is no ratable impairment  solely because the patient declines surgery.  If the patient has continuing pain and loss of range of motion,  with positive findings of an injury on a MRI, the patient has a likely ratable impairment, regardless of whether surgery is declined. 

While an injured worker can choose whether or not to have particular treatment, he or she cannot prolong getting compensation benefits if there isn’t anything else the doctor can do.  The doctor will usually allow the patient a reasonable period of time (2 to 4 weeks) to decide whether or not to get an epidural injection or to have a surgery.   

 When a claim is accepted, almost all insurers include a form that has a brief explanation of benefits available under Nevada workers’ compensation law.  There is a lot of information included, and it is in fine print.  Very few injured workers bother to read it.  However, it does state that an injured worker must send in mileage reimbursement requests within 60 days of incurring the mileage.  

If the injured worker sends in a mileage reimbursement request at the end of the claim, only the mileage travelled within the last two months will be reimbursed.  Adjusters will not remind injured workers who forget to send in reimbursement requests that that the request should be sent every 60 days. 

I tell my clients to try to send in reimbursment requests every month, using one reimbursement request form for each week in which mileage was over 40 miles in one week.  (Mileage qualifies for reimbursement if you travel more than 20 miles one way for medical care. Alternatively, it qualifies for reimbursement if you travel more than 40 miles in any given week going to and from medical care.)   If you send in mileage reimbursement forms each month, the adjuster only has to process one mileage check a month.  It is also easier for you to keep track of what has been reimbursed.   If you need more forms, click here to access the form. 

 The Nevada Supreme Court published a decision that is favorable for injured workers this month in Williams v. United Parcel Services, 129 Nev. Adv.Op. 41 (6/6/13).  Two years after his back injury claim was closed, Williams, a UPS employee, asked to reopen his claim for more medical care.  His reopening request was denied because he hadn’t been given a PPD award , and he hadn’t been off work long enough to get temporary total disability benefits.  (Injured workers aren’t entitled to TTD benefits unless they are taken off work by the treating doctor for 5 days in a row, or  5 days in a 20-day period )

A section of the  reopening statute, NRS 616C.390(5) , states that an injured worker who is not off work as a result of the work injury,  or who is not awarded a permanent partial disability (PPD) award when his claim is closed, cannot reopen his claim more than a year after the claim is closed. The actual language of the reopening statute says only that the injured worker must be off work as a result of the injury.  However, this section of the law had always been interpreted by insurers, hearing officers and appeals officers to require that the injured worker show that he had had been off work long enough to receive benefits if the reopening request was made more than a year after claim closure.  

Justice Nancy Saitta wrote in this recent published decision that there was nothing ambiguous about how the reopening law was written by the legislature.  The plain meaning of the words "off work" meant that Williams only had to show that his doctor had taken him off work for the remainder of his shift due to his accident. 

 This decision will help more injured workers who seek to have their claims reopened more than a year after their claims are closed. 

There is a recent trend among insurers andtheir medical review companies to require a psychological evaluation before authorizing a low back surgery.  Neurospsychologist Louis Mortillaro, PhD is asked to do many of these evaluations for the purpose of determining whether the patient is likely to benefit from a back surgery.  Basically, the insurer doesn’t want to pay for back surgery if the claimant is likely to continue to complain of back pain and want more medical care.  Dr. Mortillaro told me that occasionally the evaluation will reveal a more serious problem with drug addiction or a severe underlying psychiatric disorder that will only be exacerbated by a surgery.  

I haven’t had any clients denied back surgery following a psychological evaluation.  However, most clients are upset initially that surgery has been delayed until this evaluation is scheduled and the insurer receives the report.  My clients have not found the evaluation to be too intrusive or unpleasant.  Thus far, the local psychologists hired to do these evaluations have been reputable and respective of injured workers.   

The concern that I have with this growing trend is that these psychological evaluation reports may be available to the employer.  Employers are copied on all determination letters by the insurer.  There are a few large, local employers that take a dim view of any employee who gets injured on the job and costs the employer increased work comp premiums.   I would hate to see these employers read sensitive information contained in a psychological report.   Because an insurer can require that and injured worker require a consultation as a condition of continued benefits,  an injured worker may not win an appeal if the worker refuses to attend the psych consult. However, I think an injured worker can require that the adjuster not disclose this report without a subpoena and good reason presented to an appeals officer if it involves a litigated issue. 

 30 days after your doctor says you are stable and ratable, your adjuster must send you a letter scheduling your PPD exam.  (The exam however, doesn’t have to take place within 30 days.)   NRS 616C.490(2).

14 days after your rating exam, the rating doctor should send the rating report to the adjuster. NRS 616C.490(6).

14 days after your adjuster receives the PPD report, your adjuster must send you a letter either disagreeing with the rating percentage,  or a letter offering the percentage found by the rating doctor. You have 70 days to file a request for hearing if you disagree with the percentage offered. NRS 616C.490(6).

20 days after you send in election papers for the PPD that was offered, the adjuster must send  the lump sum elected.  (The adjuster may claim to have sent the check from somewhere back east on the 20th day and DIR will probably find the insurer in compliance with the law).  NAC 616C.499.

 1 year after you receive your award, the adjuster must pay an annual installment if your PPD percentage was over 25%. and the amount of the installment is less than $100 a month.  NRS 616C.490(8). (Make sure you send a change of address to your adjuster.)