Workers' Compensation Attorney

The Immigration Policy Center reports that  Latinos and Asians make up one-third of all Nevadans. 15% of registered voters in Nevada are immigrants or the children of immigrants.  Immigrants comprised 25% of the state’s workforce in 2011.  It is estimated that 10% of the state’s workforce in 2010 were unauthorized immigrants who contributed millions in sales taxes and property taxes. 

Latino-owned business and Asian-owned businesses contributed significantly to the state’s economy through sales of goods, and by employing thousands of workers.  The figures are likewise impressive on what Latino and Asian immigrants contributed to the Nevada economy as consumers and taxpayers.  Whatever your thoughts are about illegal immigrants, the statistics show that Immigrants, including those who are not yet authorized to work in the United States, are essential to Nevada’s  economy.

Unauthorized workers are entitled to the same benefits as any other injured worker under Nevada law (NRS 616A.105), with one important exception.   An undocumented immigrant worker cannot receive vocational rehabilitation services or a vocational award of money instead of retraining.   However, the injured worker may receive medical care, compensation benefits while they are recovering from their injuries and can’t work, and they may obtain a permanent partial disability award.  See, Tarango v. SIIS, 117 Nev. 444, 25 P. 3d 175 (2001).

 Before an injured worker undergoes a neck or back surgery, he or she should be familiar with a few medical terms and what specific procedure the surgeon is recommending.   Ask your doctor to write down the name of the surgery, and have him explain exactly what will be done.  If you or your adjuster is requesting a second surgical opinion, make sure you understand whether the second surgeon is recommending a different approach.  The following are a few medical terms and procedures courtesy of materials from the Mayfield Clinic and local neurosurgeon Aury Nagy, M.D. :

• Discectomy–  surgery to remove herniated disc material that is protruding through the disc wall and irritating the surrounding nerves causing pain.
• Fusion– joining together two separate bones (vertebrae) to provide stability.       
• ACDF (anterior cervical discectomy and fusion) – surgical procedure that removes a herniated or degenerative disc in the neck, and fusing the vertebrae above and below the disc space. The spine is approached from the front of the throat area.  The removed disc space is filled with a bone graft and the the vertebrae are immobilized with metal plates and screws.  Bone grafts may come from bone cells taken from your own hip, or from cadaver bone, or man-made substitutes.  Artificial disc replacement is also an option for some patients.  Both neurosurgeons and orthopedic surgeons do this surgery.
• Foraminotomy–  surgical enlargement of the intervertebral foramen through which the spinal nerves pass.  Bone spurs, called osteophytes, that may be pressing on nerves may also be removed during this procedure.  
• Posterior lumbar discectomy– surgery to move a herniated or degenerative disc in the lower spine where the surgeon approaches the spine from the back.  An open discectomy involves a 1-to 2-inch incision in the middle of the low back.  A minimally invasive discectomy has a very small entry wound. 
• PLIF- posterior lumbar interbody fusion. 
• ALIF- anterior lumbar interbody fusion where the surgeon accesses the spine through the abdominal area.
• Laminectomy– this is the surgical procedure to drill a small hole through the lamina (a part of the bony vertebrae) so that the surgical can insert a surgical microscope to view and remove disc fragments.  It may be necessary to do on both sides (bilateral laminectomies).
• OLIF-  Oblique lumbar interbody fusion.  This is a surgical procedure pioneered by local orthopedic surgeon Andrew Cash, M.D. where the surgeon enters the spine from the back, at an angle, near the pelvis and just above the iliac crest.  Read more about this in the article on Dr. Cash by Brian Sodoma in Las Vegas Life magazine, Spring 2013. 
  
  

 There is a recent trend among insurers and their 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. 

In City of Las Vegas v. Evans, 129 Nev. Adv. Op. 31 (05/03/2013), the Nevada Supreme Court held that a firefighter who was diagnosed with a cancerous brain tumor had a compensable claim based upon an appeals officers’ ruling that expert physicians established a direct causal connection between the cancer and the firefighter’s exposure to carcinogens while fighting fires. 

The firefighter had been employed only four years as a firefighter when he was diagnosed with the brain cancer.  He therefore could not use the statutory qualified, rebuttable presumption in NRS 617.453  that his cancer arose out of the course and scope of his employment.  That presumption applies only if the firefighter has five years of continuous, uninterrupted employment as a firefighter.  However, the firefighter could still file a compensable claim under the general occupational disease statute, NRS 617.440, by providing expert testimony that his cancer resulted from cancer-causing carcinogens that are released in large amounts during fires, and that he fought over 100 fires during his four years as a firefighter.

 Thank you to the International Vocational Rehabilitation Counselors Association for inviting me to attend their educational conference last week. It was hosted by certified counselors Gerry Davis, Cindi Rivera, and  retired counselor Jack Dymon at the State of Nevada Bureau of Vocational  Rehabilitation.   The focus of the conference was working with multi-cultural groups, and educational and training resources for clients with limited English ability.  

I  need to be aware retraining  programs that are  suitable for my clients who have limited ability to read, write and speak English, and most retraining programs in Las Vegas require that the student learn in English.  With our growing Hispanic population, trying to find a suitable retraining program is a huge ch allege for vocational counselors and the attorneys who represent them.  The second half of the program features vendors of retraining programs that offered some retraining in Spanish and that also had ESL programs available to their students. Those vendors that attended were PITA (Professional Institute of Technology and Accounting), Fastrax Training Center, and The Academy for Human Development.

After hearing about the various ways that the schools were trying to adapt to a growing non-English speaking clientele, it was interesting that all speakers who attended the conference put forth the message that it is essential that all injured workers learn to speak, read and write English.  There is simply no  funding or appetite by insurers or employers to accommodate injured workers who do no put forth a significant effort to improve English skills so that they may participate in existing programs.   Those schools who do provide extra resources, such as bilingual instructors, emphasize that English is essential for success in the work place. 

 I was just sharing some war stories on line with other claimants attorneys about our experiences with particular vocational rehabilitation counselors.  There is no question that some counselors do a poor job of assisting injured workers with realistic and fair plans for returning the injured worker to work.  However, the injured worker can make the best of the vocational rehab experience by doing the following:

1. Be sure you understand the rules.

    During your first meeting with your voc rehab counselor, you will learn that you only have 60 days to decide and present a retraining plan to the adjuster.   Make sure you know when that 60 days ends. 

    Your case is assigned to the voc rehab counselor, and your 60 days is running when neither you nor your counselor knows the length of a retraining program that can be authorized.  Nor will you or your counselor  know how much a minimum lump sum buy-out will be. Most injured workers won’t get the results of their permanent partial disability rating when they must start working with a voc rehab counselor.  (The percentage of impairment from the PPD rating determines whether you get 9, 12, or 18 months of retraining, and it will determine how much the minimum voc rehab lump sum buy-out will be.)  You must still use this time to investigate whether you will want a retraining program, or whether you will accept money and find yourself another job.

   2.  Keep your expectations realistic.

     The voc rehab counselor is paid by the insurer.  If the counselor doesn’t please your adjuster, the counselor won’t continue to have a job.  However, good counselors have integrity and will try to do what is right for the injured worker.  Your counselor isn’t going to advocate for you like your attorney.  

      if your vocational test results show that you have no math skills, don’t expect the counselor to support your desire to be an accountant.  There are many limitations that may apply to you, such as the length of a program that can be authorized for your impairment percentage, your own work experience, your aptitudes for particular programs, whether a program actually exists in Nevada, whether you have had criminal convictions that prevent particular employment, your physical limitations, and your chances for employment when you complete the program.

3.  You want the counselor to want to help you.

     If you miss your appointment with your counselor, or you are disrespectful, then don’t expect your counselor to go the extra mile to help you.  Some claimants don’t really want to go to school, and they frustrate and waste the time of the counselor by not initially opting for a buy-out instead of a program. 

     When you simply cannot stand your counselor, you may ask for a new counselor, but understand that you have no legal right to have a different counselor assigned to your claim.   Listen to what the counselor recommends for you, and research the training programs yourself instead of depending on the counselor to find a new career for you. 

      On April 19, 2013,  S &C Claims Services, Inc., sent a letter to all injured workers insured by Builders Insurance Company that their checks due that week wouldn’t be sent as scheduled.  A Las Vegas District Court ordered the Commissioner of Insurance to act as Temporary Receiver for the company while future payments were scheduled to be made by the Nevada Insurance Guaranty Association.

     When an insurance company that underwrites the workers compensation policies for Nevada employers goes broke and files for bankruptcy, as did Builders Insurance Company, Nevada law provides for a continuation of claims benefits through the Nevada Insurance Guaranty Association.

     Nevada law (NRS title 57) provides that when an industrial insurer in Nevada files for bankruptcy, all claims of injured workers  under workers’ compensation policies issued by that insurer should be eligible for payment by the Nevada Insurance Guaranty Association.  In the instant case involving Builders Insurance Company, while compensation checks will be issued through the Guaranty Association, S&C Claims Services, as their third-party administrator, will continue to make determinations on medical care,  PPD awards, and vocational rehabilitation.  

   Fortunately, I do not have any clients i with  injury  claims against Builders Insurance Company  right now.  I don’t know how long the Guaranty Association is taking to send out compensation benefits.  I can only tell you that in the past, when I’ve had to go through this with clients with bankrupt insurers, it was another hassle causing further hardship and delay to the injured worker.  Unless I demanded prompt action on the claim and kept on top of requests for treatment authorizations, it took months for anything to happen.  

     If you  currently have a claim under a builders Insurance Company policy and received a letter from S&C Claims Services, for now you should continue to contact S&C for authorizations for medical care and questions about your benefits.  However, your compensation checks will have to be issued through the Nevada Insurance Guaranty Association.  Their contact information is as follow:

Nevada Insurance Guaranty Association  (702) 368-0607, fax (702) 368-2455, Email: service@niga-pc.org,  web site:  www.niga-pc.org.    Click through to their website to learn more. 

     It is a surprise to most undocumented workers in Nevada that they have almost as many rights as documented employees and U.S. citizens under Nevada’s workers compensation system.   Many injured workers without proper documentation worry about deportation or not having  a job to  go back to when they are done getting medical care.  They think that their employer will be at risk of heavy fines by ICE officials for hiring illegal employees.  However, what usually happens is that ICE (U.S. Immigration and Customs Enforcement) doesn’t get involved.

     The only group of benefits that are not available to illegal workers are vocational rehabilitation services and benefits.   When an injured worker is finally released from medical care for his injury, if his doctor gives the worker permanent work restrictions, the employer may not have work that can accommodate the restrictions.  If the worker were legal, he would then get bi-weekly checks while he either participates in a job retraining  program or elects a vocational settlement.  However, if the worker is illegal, the bi-weekly checks end, and the claim is closed.  

     The illegal worker needs to file a workers’ comp claim like his legal co-workers so that he can get medical care, bi-weekly checks if he is out of work, and a permanent partial disability award for a serious, permanent injury.  If the illegal worker does not file a claim, he giving up getting free medical care and settlement money.

 The first 30 days of a serious job injury claim are confusing and scary.   Here are a few important tips :

• Keep a copy of the C-4 Claim for Compensation form that you filled out to start the claims process when you first got medical care.  Check it to see whether you were taken off work or released to work with restrictions. 
• It is the worker’s comp adjuster who will be making important decisions on your medical care and compensation benefits.  Ask your employer or a clinic staff person to give you the adjuster’s name, phone number and fax number.
• An adjuster has 30 days to accept or deny your claim.  If your employer questions whether you were hurt at work,  your assigned claims adjuster may want to take a recorded statement by phone before deciding to accept or deny your claim. (Now would be a good time to get a lawyer if you think your claim will be denied.)
• Unless you require real emergency care by a specialist, don’t expect your adjuster to approve expensive diagnostic tests like MRI’s until the adjuster decides to accept your claim.
• If you don’t like the medical care at the clinic, unless you have an emergency, the adjuster won’t allow you to transfer care to a different doctor or clinic until the claim is accepted.  
• If your claim is accepted and you need to see a specialist like an orthopedic physician, fax a request to your adjuster for the names of the doctors on the provider list.  You may request transfer to a doctor you choose from the provider list.   Try to make an informed choice.  
• In order to receive compensation benefits, you must be off work for 5 days in a row, or 5 days within a 20-day period of time.    You must have an off work slip by the authorized treating doctor.  Calling in sick without a doctor’s note will not qualify you. 
• If the clinic doctor releases you to return to work with restrictions, you must call your employer and ask whether your employer has temporary light duty work within your restrictions.  Show up for work if your employer tells you to come in for modified work. If your employer doesn’t have modified work available, then you need to request work comp benefits from the adjuster.
• if you are worried you may need a surgery or that you will be unable to return to work soon, get a free consultation from a reputable attorney so that you know what else to expect and what your rights are under the law.  If you aren’t good about reading the fine print of papers you receive in the mail about your claim,  getting legal help is even more important. 

 Most injured workers who call my office are fed up with delays in getting decent medical care or getting compensation checks from the workers’ compensation adjuster.  Here’s a list of why you might be having problems:

    1. Your claim hasn’t been accepted yet.

     The adjuster handling your claim for your self-insured employer,  or  the third-party administrator handling your claim for your employer’s insurer has 30 days from the date she receives the C-4 claim form from your doctor to accept or deny your claim.   If the adjuster or your employer has questions about whether your claim is a legitimate one, there may be an investigation during this time.  If the adjuster calls you to take a recorded statement and has a lot of questions about who was present when you were injured, how you were injured, or whether you had previous injuries, expect a delay.

2. Your claim has been denied.

 If your claim is denied, you don’t get anything-  no medical care and no compensation benefits.  You must file a Request for Hearing that comes with the claim denial letter.   A hearing will be schedule in about two weeks from the date you file for hearing.  You must then convince the hearings officer that your claim should be accepted. d

3.  Your adjuster hasn’t received requests for care from your doctor.

Unless you have an emergency medical problem, almost all medical care has to be authorized first through the claims adjuster.  Often the delay is caused by the doctor’s office not sending a fax request to the adjuster so that a test can be ordered, or physical therapy approved, etc.  Adjusters generally process these faxed requests for medical care within five business days, so don’t assume that the delay is caused by the adjuster.  It could be that your doctor’s office isn’t doing what they should be doing to get you necessary treatment.

4. Treatment guidelines require that the doctor try other treatment first

Doctors familiar with the workers’ compensation system know that they must follow particular treatment guidelines.   If an injured worker reports to a clinic with a  shoulder strain-type injury, the doctor won’t order a MRI immediately.  The doctor will first want to see how you respond to anti-inflammatory medication and physical therapy.  If you know that you have a serious injury, and you aren’t getting any better with therapy, get help right away to select a good doctor from the insurer’s provider list.

5.  You’ve established a bad relationship with the adjuster

Most work comp adjusters have too many claims assigned to them.  If you call multiple times a day or every day, you will just annoy your adjuster and cause further delay on your claim.  You have to make it so that the adjuster wants to help you.   If you have a serious injury, you might want to consider hiring an attorney who knows who your adjuster is and how to get things done.

6.  You haven’t submitted the proper forms

Most adjusters require that you send in a Request for Compensation D-6 form in order to get a bi-weekly compensation check.  The adjuster usually includes a blank D-6 form when he sends a compensation check so that you will get paid in the next two weeks if you are still off work.  If you didn’t get this form and return it right away, your next check will be delayed.   You can download this form here if  you need one.

7.  Your doctor isn’t very good

The most important aspect of your claim is getting the best possible medical care.   A doctor who doesn’t listen to you or who isn’t actively trying to diagnose your injury will drag things out for weeks or even months.   You know your own body.  If you aren’t getting any better and nothing much is happening medically, get a free consultation with an attorney who is familiar with the doctors on your insurer’s provider list.  Find out who the best doctors are, and then request a change of doctors.