Workers' Compensation Attorney

After a serious Nevada work accident and hospitalization, the injured worker may require a nurse, then unskilled nursing care at home to go to the bathroom, bathe, and make meals.  This need for home health care often falls through the cracks if the treating surgeon forgets to prescribe attendant care, or the hospital coordinator doesn’t follow through getting it authorized with the claims adjuster.  If a nurse case manager isn’t assigned to the claim, the adjuster may get the request, but may not  arrange for it on time. What often happens is that the injured worker’s family or closest friends must step in to provide home care during the critical time following the patient’s release from the hospital or from a surgical center. 

If a spouse or other family member takes time off their own jobs in order to  provide necessary care, they are unfairly losing valuable vacation, family medical leave time, and wages.   On many claims where the injured worker isn’t represented by counsel,  there hasn’t been any telephone communications between the claimant and the adjuster.  The injured worker and his family expect that the doctor, the  insurance company, or their employer will take care of this need.  Wrong.  You can’t just expect things to happen in the workers’ comp world.   

The claimant or his family should try to make sure that home health care is authorized and scheduled before the claimant comes home from the hospital or from the surgical center.  It’s important also that any home health care agency that supplies home health care bills the workers’ compensation carrier so that the injured worker isn’t billed for co-pays.  

If you want your spouse or another  family member to get paid for taking care of you, don’t wait until after  care is provided to  ask the insurer about reimbursement.  Almost twenty years ago, the Nevada Supreme Court decided that a family member who wants to be reimbursed for providing home health care must request this  from the insurer before providing care.  Additionally, the injured worker must show that a doctor prescribed it as medically necessary.  SIIS v. Snyder, 109 Nev. 1223, 865 P2d 1168 (1993).

In addition to having a physician prescribe home health care,  the adjuster has to be persuaded that your family attendant is a reasonable substitute for unskilled help from a home health care agency.  The amount the insurer must pay for home health care is set forth at p. 4 in the Nevada  fee schedule, and the insurer will not pay a family attendant more than it would have to pay for outside agency help.  

I have had cases where I have been retained after a family member has provided attendant care without requesting preauthorization.  Some adjusters are willing to pay a reasonable amount of money, not to exceed the fee schedule, after the fact.  However, the better practice is to ask for it before it is necessary.  NRS 616C.440(1)(c) is the statute that allows for attendant care expenses on a claim.

Some injured workers are delivered a low blow by their adjuster when their treating surgeon for their Nevada work comp injury finds that they first take care of a unrelated medical problem before surgery can go forward. For example, many hurt workers will find that their blood pressures spike from being in pain from the severe work injury, particularly if they have had borderline or high blood pressure in the past. A primary care doctor performing the pre-surgical clearance may want a cardiologist to run some more diagnostic studies, such as a treadmill stress test. Clearance can then take weeks. Meanwhile, the adjuster sends a letter that the injured workers benefits will be suspended until the patient is cleared for surgery.

I have successfully argued that this practice is wrong. Hearings and appeals officers generally agree that the correct interpretation of NRS 616C.230(5) on suspension of benefits allows the injured worker to avoid suspension if he shows that he did everything as quickly as possible to take care of the nonindustrial medical problem. The problem is that it takes an appeal, reversing the insurer’s suspension of benefits to get the injured worker paid. Many injured workers are intimidated by the appeals process and just go without benefits during the weeks it takes them to get surgical clearance. My recommendation is that you get surgical clearance as quickly as possible, show the adjuster that you are doing things quickly, and file an appeal of any suspension of benefits.

There is a renewed trend among particular self-insured employers and third-party administrators (TPA’s) in Nevada to send a Notice of Claim Acceptance for "lumbar strain only" on  low back injury claims.  My fellow claimants’  attorneys are also noticing an increase in claims where adjusters are denying medical treatment for a herniated disc,  because the claim was accepted for a "lumbar strain" and the injured worker didn’t file a timely appeal.  

For those workers who truly have a lumbar strain, a  claims acceptance letter for a "lumbar strain"  isn’t likely to be a problem.    However, the the claims acceptance letter must be sent by the adjuster 30 days after getting the C-4  Claim for Compensation from the first doctor.  It isn’t likely that the injured worker or even  the adjuster will know whether a low back injury is a strain or something else at that time. 

It’s rare for a work comp adjuster to authorize a MRI  during the first 30 days of the claim, or even within the 70-day time to appeal the limiting language in acceptance letter.  A  MRI is necessary to diagnose a disc injury.  If a herniated disc is diagnosed later, the adjuster may refuse to authorize any treatment that isn’t treatment for a lumbar strain.

 According to local neurosurgeon Aury Nagy, M.D., 70% of patients with lower back pain get better with physical therapy and steroids in about 6 weeks.  When the patient isn’t better, an MRI is  done.  The MRI must be authorized by the adjuster.   If the MRI shows a herniated disc,  where the gel-like material within the disc is bulging or has ruptured and is pressing on a nerve, then a surgery may be necessary.  The patient may need a discectomy to remove the damaged disc.  If the  spine is also unstable, a fusion may also be necessary. 

Physicians must  ask the adjuster for authorization to do injections or to surgically treat a herniated disc.  Some adjusters are now including the "lumbar strain " language of almost every claim acceptance letter for low back injury.  Obviously, it isn’t fair to the injured worker for the adjuster to deny requested treatment for a herniated disc that isn’t diagnosed until later in the claims process.  The fact that adjusters are using this unfair tactic frequently now tells me that it is working for the adjusters.  Surprisingly few injured workers get legal help when this happens.

These are often winnable cases when the claimant files an appeal after hiring an attorney, even after the time has passed to appeal the "lumbar strain only" acceptance letter.  If your orthopedic surgeon or your treating neurosurgeon tells you that the adjuster denied authorization to treat your herniated disc because only a lumbar strain was accepted on your claim, get an attorney consultation immediately to discuss the facts of your particular case. 

     Effective February 1, 2013, the Nevada fee schedule that governs health care providers under the Nevada workers’ compensation system, raised the PPD (permanent partial disability) reimbursement to $718.96.    If the rating physician is rating more than two body parts, he or she can charge an additional $240.11 for each additional body part.  For example, the fee schedule states that the cervical spine constitutes one body part, the thoracic spine another body part, and the lumbar spine constitutes a separate body part for rating and billing purposes.  If an injured worker has injuries to the neck, the low back, and to the right wrist, the rating physician’s bill will be $959.07.

     Injured workers who disagree with the first rating or the percentage offered by the industrial insurer must pay these same rates when they obtain a second rating by following the procedure in NRS 616C. 100.  With these high costs, it is essential that the injured worker gets a fair and accurate rating the first time around when the insurer must pay for it.  Although the law allows a hearings or an appeals officer to order an insurer to reimburse an injured worker for a second rating if the second rating is found to be more accurate, there are no guarantees that a second rating will result in a higher percentage, or that a hearing or appeals officer will agree that the higher percentage is correct. 

     It is difficult for Injured workers to find an extra $718.96 to pay for a second exam,  even if they are likely to be reimbursed.  Also, it takes time to file appeals and contest the first rating, and the injured worker cannot accept the disputed first percentage in a lump sum while litigating the first percentage.

     Here are a few things I may do representing an injured worker do to get the first rating correct:

• Ask the adjuster to agree with me on which of the 145 doctors on the DIR’s rating list will evaluate the client.
• Make sure that the rating physician is rating all accepted body parts. 
• I go with the client to the rating with a copy of the medical records, so that if the doctor is missing an important record, like an operative report, I have a copy ready.
• I know the AMA Guides and am prepared to discuss complex issues such as apportionment of pre-existing conditions or how a particular body part should be rated.
• I obtain a copy of the rating evaluation as soon as it is done so that I can resolve any problems by writing to the rating doctor before the adjuster sends a determination letter.
• I may have the rating report reviewed by a rating doctor at a cost less than the full cost of an exam to confirm a suspected error and then ask the rating doctor for an addendum.
• I prepare a persuasive argument for the hearing officer after filing an appeal that the first rating is wrong under the AMA Guides, and ask that the insurer be required to pay for a second rating.
• Finally, if I think the first rating is incorrect and that the second rating phsycian who is assigned by the DIR is likely to find a higher percentage, I file an appeal and schedule a second exam.

     Injured employees in Nevada have a limited right to choose a treating doctor.  The workers’ compensation insurer or third-party administrator for the employer has a list of doctors that have contracted to provide medical care at reduced fees.  Once the injured worker’s claim is accepted, he or she has the right to ask for a different doctor on the provider list.  If the request is within the first 90 days of the claim, the adjuster handling the claim must approve the request.  Requests to change doctors made after 90 days can be denied, but the law says that the adjuster should have a good reason for the denial.  NRS 616C.090.  

     An injured worker who successfully changes her treating doctor may be surprised weeks or months later to get a letter from her adjuster scheduling her to see a different doctor for a consultation appointment.  That usually happens when the adjuster doesn’t agree with the treatment recommendations of the treating doctor.  This type of consultation might also be scheduled when the treating doctor has taken the injured employee off work for a long time.  

     Nevada law does give insurers and employers the right to require a consultation appointment with a doctor chosen by the employer or insurer from the insurer’s provider list.  This consultation examination is sometimes known as an IME (independent medical examination).  The letter from the adjuster  that notifies the injured worker of the appointment date and time will state that the injured worker’s benefits will be suspended if he or she does not go to this appointment.  NRS 616C.140 (5) states that if the employee refuses to go to the exam or obstructs the exam, compensation benefits can be suspended by the insurer until the exam takes place.    

    The letter from the adjuster will also tell the injured worker that he or she has the right to file an appeal if they disagree with the consultation.  If this is the first time the insurer or employer has scheduled the employee for a consultation, a hearings officer is not likely to reverse the insurer’s determination to require the consultation.  However, I have had cases where the insurer has scheduled several consultation examinations in an obvious attempt to get a particular opinion from a doctor.   If the number of consultations is unreasonable or the insurer is making unreasonable demands concerning cross-country travel to a consultation, a hearing officer will side with the injured worker.  Adjusters who schedule multiple consultations are usually gearing up to deny something- beware.

 The most important benefit under the Nevada workers’ compensation system is the injured employee’s right to get medical treatment.  I have prior blog posts about the limitations on that right that are written into Nevada law, such as the limited right to choose a treating doctor.  I also just wrote about insurers’ attempts to deny an injured employee’s right to change doctors by directing care to doctors who will release the patient from care within the first 90 days of the claim.  

In the past two months I have seen two insurers get even bolder by writing directly to the treating doctor and telling him to change his diagnosis to the  diagnosis accepted by the insurer.  For example, two clients with low back injuries were diagnosed with disc injuries as well as lumbar sprains by their treating doctors.  The administrator in both cases sent claims acceptance letters to the injured worker, stating that the claim was accepted for "lumbar strain only".  When the insurers saw the bills from treating doctors and physician progress reports that referenced a disc injury and a lumbar strain, the insurer wrote to the doctor advising him that the insurer was only going to pay for treatment for a lumbar strain.  

The injured workers were copied by the insurers on the letters that were sent to the treating doctors limiting treatment and payment of the bill to only a lumbar strain.  However, In one case, this letter to the doctor wasn’t sent until months after the doctor had listed the disc condition on every physician progress report as one of the diagnoses.  The insurer had also specifically authorized and paid for injection treatment for the disc condition. It was evident that the insurer was trying to limit the diagnosis now that the claim was closing so as to avoid an impairment evaluation or a higher impairment rating.

In the second case, the insurer wrote to the doctor at the very beginning of the claim, and the insurer wanted to make sure that the only treatment the injured worker got was treatment for a strain.   In both cases, the copies of the letters to the doctors confused my clients.   It wasn’t clear at all to them that what was happening was an attempt by the insurer to limit  their medical treatment  in the future or now, and an attempt to limit any impairment due to the work accident.

If you get a similar letter from the adjuster, or are copied on a letter the adjuster sends to your doctor trying to limit your claim, don’t ignore it. You owe it to yourself and to your family  to understand  what is happening on your claim and how to obtain the best possible medical care under Nevada law. 

 The Bellagio blackjack dealer whose face was slashed just before Christmas this past year filed a lawsuit this week against her employer and her jailed attacker, according to theLas Vegas RJ today (2/26/13).   The newspaper stated that the legal complaint against the Bellagio by the injured employee alleges that employer Bellagio failed to ensure the safety of its employees and failed to give her timely aid after her face was gashed with a razor blade by an attacker.  The article wasn’t clear about the relationship between the attacker and the black jack dealer, but earlier reports referenced a domestic dispute that also involved the death of a child.  

Attorney Harold Gewerter represents the injured employee in the lawsuit. I haven’t seen a copy of the Complaint he filed to intiate the lawsuit.  I am interested to see how he intends to avoid a likely  motion by the Bellagio to dismiss the lawsuit based on an  "exclusive remedy" defense.  That defense provides that if an employer purchases workers’ compensation insurance, an employee who is injured in the course and scope of employment cannot sue the employer,  even if the injury resulted from an unsafe work condition.  The employee’s "exclusive remedy" are the benefits described in Nevada’s workers’ compensation law if the employee has a possible work comp claim.

If the facially disfigured Bellagio blackjack dealer survives an "exclusive remedy" defense argument, it may be because the attack cannot be said to arise out of the course of the blackjack dealer’s employment.  Instead, the attack may have been related to a personal dispute between the attacker and the blackjack dealter that had nothing to do with the blackjack dealer’s job.  If so, then the blackjack dealer would not have a compensable workers’ compensation claim that would give her immediate medical and compensation benefits.  She would then have to hope that her civil lawsuit can prove liability by the Bellagio under tort law.

This is what I do for injured workers who would like a free legal consultation:

First, I,  or one of my experienced legal assistants, asks the injured workers a few pertinent questions to make sure that they have a Nevada claim, that they have already filed a claim, that they do not already have an attorney representing them, and that I can help answer their questions when they come in.  I don’t have time to see everyone who calls me, and with some people, I know right away that I will not be able to assist them. 

Secondly, if I schedule a free consultation, I ask the injured or sick injured worker to bring whatever paperwork they have pertaining to the claim.   The more information I have when someone comes in to see me, the more accurate my recommendations are for their particular claim.

Consultations are scheduled for 45 minutes, but if the case is complex, we may take up to an hour to discuss the claim.   I encourage injured workers to bring their spouse or significant other so that I answer everyone’s questions.

I listen to the injured worker tell me about how the accident happened, or how the occupational illness developed, and I read the paperwork available for my review.  I then give an overview of Nevada law and the various benefits available.  I talk about the roles of the insurance adjuster, and the employer,  and the treating physician.  I usually spend a lot of time discussing the medical care the injured worker is receiving as time limitations are very short for requesting change of doctors.

I identify potential problems the injured workers may not be aware of, and tell the injured worker what to expect, and what the options are if the claim doesn’t proceed as expected.   Sometimes the injured worker hasn’t faced the prospect of not returning to their pre-accident occupation, and we spend time talking about retraining possibilities.  I also explain how permanent partial disability awards are determined.  I answer questions about what I do as an attorney for the injured worker, and whether legal representation is even necessary.  I explain that I assist clients in obtaining the best possible medical care, that I make sure that benefits are maximized and calculated correctly, and that the client is aware of all benefits that are available.  I personally go to clients’ rating evaluations, and I represent my clients should they ever need to reopen their claim for more medical care in the future.  I also stay involved in the vocational retraining process, and I do not charge an attorney fee on a vocational rehabilitation lump sum buy-out unless that sum of money is part of a settlement of litigated issues.  

All consultations are confidential regardless of whether the person ever hires me or not.  No one is pressured to sign a representation agreement with me, as the consultation is truly free.  If the person decides that they do need or want representation immediately, and I consent to be their attorney, we can have all necessary paperwork to hire me completed in about five minutes.   I personally explain the representation agreement to every client.  I propose fees based on what work I think I will have to do on the claim presently and in the future. 

I do not mind if a person is shopping for an attorney and wants to have consultations with other attorneys before deciding to hire me.  Who to hire for legal representation is an important decision.  It is very difficult to change attorneys later, because attorneys generally do not get paid until the end of the claim.   There are differences in what attorneys charge in Las Vegas, and there are differences in what attorneys personally do for clients. 

Finally, I give all people who see me for a consultation, and any others who request it, a copy of the guide I wrote for injured workers on Nevada workers’ compensation law.

 Inguinal hernias are common work-related injuries for men, often caused by increased abdominal pressure during heavy  lifting. According to the November/December 2012 AMA Guides Newsletter, men have a 27% lifetime risk of an inguinal hernia.  Genetics, overall body conditioning, and development of a person’s abdominal musculature have a lot to do with risk of a hernia.

 If an injured worker feels sudden pain and immediately notices a protrusion in the abdomen, and the worker promptly reports the injury, a claim is usually accepted.  It is when the injured worker delays in reporting the injury that the workers’ compensation administrator and employer question whether the hernia was caused by job activities.  The injured worker can avoid problems simply by speaking up immediately following a work injury and by following the procedures for filing a claim.  

Surgery, usually involving a mesh repair,  is scheduled quickly after a claim is accepted.  Most surgeons take their patients off heavy physical work for at least 7 to 14 days.  Most surgeries are successful, and there is no remaining protrusion or defect that can be felt in the abdomen.  A successful surgery should not entitle the injured worker to a rating evaluation.

If,however, the surgery was not successful, and there is still a protrusion or palpable defect, the injured worker may have a ratable impairment under the AMA Guides to Evaluation of Permanent Impairment 5th Edition.   A rating is not scheduled simply because there was a surgery.  Nor is a rating scheduled because a treating surgeon gives the injured worker some permanent work restrictions.  

In order for there to be a ratable impairment under the AMA Guides, there must still be a protrusion or palpable defect present when the rating physician does a physical exam.   If the hernia surgery was done correctly, there shouldn’t still be a protrusion or palpable defect unless there were complications.  The extent of the palpable defect will determine the class of impairment.  For example, a slight protrusion would place the claimant in a Class ! impairment, allowing the rating doctor to assign 0 to 9% whole person impairment.  

Secondly, in addition to a remaining palpable defect, the rating doctor must determine the extent to which the hernia interferes with activities of daily living.   If the hernia does not interfere with most activities of daily living, the rating doctor would place the impairment at the lower end of a Class I impairment.  

Most injured workers who have asked whether they should be rated for impairment complain about pain that never subsides after the surgical repair.  While they may not have a remaining protrusion or palpable defect,  it is possible that a rating doctor might find a small percentage of impairment for a  nerve entrapment in the abdomen after their hernia repair.   

If you have an accepted claim for an inguinal hernia, and you question whether you should have a rating evaluation, the first step is to obtain a complete copy of your records from your treating surgeon. Do that quickly.  Then ask a knowledgeable attorney to review your records for an opinion whether you do or don’t have a likely impairment under the AMA Guides.   Keep in mind that you only have 70 days to file an appeal of the insurer’s determination letter to close your claim without a ratable impairment.  

Today,  I met with Rob Wolinsky,  a physical therapist at the  Kelly Hawkins Physical Therapy  facility  at  Charleston and Valley View .   Rob oversees approximately a dozen functional capacity evaluations (FCE’s) each week at the request of physicians and adjusters administering Nevada workers compensation claims.  A FCE is an evaluation by an experienced therapist  like Rob.  The is asked to  perform particular physical tasks while the evaluator gathers information about the worker’s ability to return to their pre-accident employment. Even when it is obvious to a treating doctor that the worker cannot return to his old occupation, the doctor may want a FCE  so that a vocational counselor knows what kind of retraining program to develop.

I asked Rob about how he determines whether a FCE is valid or not.  I was surprised to learn that  about 30% of the evaluations he does each week are invalid.  An injured worker must pass 70% of the validity criteria  built into the test to have a valid test.

Validity criteria  tells the evaluator  whether the worker is honestly trying his best to do the various  physical tasks required during the evaluation.  Rob explained that the validity criteria used by Kelly Hawkins PT was developed over many years from several sources.  He was confident that their validity criteria  provides him with a fair and objective way to measure an injured worker’s true effort and physical work abilities.  

Rob also stated that there might be valid reasons for a FCE to have inconclusive or invalid results.  For example, he told me that if the FCE is done too soon following a major back surgery, the test might be invalid despite the injured worker’s consistent, and best efforts.     In that particular case, Rob said that he phoned the doctor who had ordered the FCE  just two months after the patient’s back fusion to tell him that the FCE should be done later.  Rob also said that if an injured worker is disabled due to a separate non-industrial injury,  or is unable to perform all tasks due to a pre-existing illness, the test may come back as invalid.

FCE test results are sent to the treating physician for a statement of permanent work restrictions.  A physician is not obligated to follow the recommendations of  the FCE evaluator.  However,  most physicians do rely on the FCE results. Problems occur when the job description provided to the FCE evaluator is not accurate, or when no job description is provided.  In that case, the FCE evaluator  uses the general physical job description from the U.S. Dept. of Labor for the most appropriate job title. 

 An invalid FCE can cause serious problems for an injured worker.  The treating doctor , who reviews the invalid FCE report,  may now  believe  that the patient  is trying to fake a more serious injury. Most doctors release the patient full duty without any restrictions when they see invalid FCE results.  Rob told me that sometimes a FCE will be invalid, but  it is  clear to him that  the patient should have permanent restrictions.  In those rare cases, Rob may phone the doctor to discuss the FCE results.  

Again, clients with legitimate injuries may have invalid FCE results for various reasons.  Those injured workers often have to appeal the termination of their benefits, and they  must pay $800 or more for another FCE test  until they get valid results for their doctor.