Workers' Compensation Attorney

Nevada law requires third-party administrators and self-insurers of workers’ compensation claims to send accepted claimants a notice of their right to choose a different doctor from the appropriate provider list.  Not all TPA’s and insurers are sending this notice.  If they do send it, most injured workers don’t read or understand how important it is to choose a different doctor before their claim is closed.

I have been seeing too many  claims where adjusters are trying to deprive injured workers of their right to change doctors by having a doctor close the claim within the first 90 days of the claim.  What usually happens is that the injured worker is first directed to go to Concentra for initial medical care and to complete the C-4 Claim for Compensation form.   If the injury persists after 45-60 days, the adjuster sends the injured worker a letter  transferring their care  to a doctor the adjuster chooses.  These doctors are usually physiatrists-   physical medicine specialists who treat occupational injuries by prescribing therapy and medication, or by giving injections. If the injury is very serious, these doctors can request a consultation exam by a surgeon.  These doctors have agreed with insurers to treat at rates below the Nevada fee schedule in exchange for a  volume of business.  Their relationships with adjusters, and self-insurers  are  important to their businesses.  If an adjuster doesn’t like it that the doctor is taking patients off work too much or is finding that claimants should be rated for impairment, the doctor is quickly removed from the provider list and loses business.

Injured workers have the right to change doctors within the first 90 days of the claim.  The injured worker must attend whatever consultation exams the insurer schedules, but within the first 90 days, the worker can refuse treatment with the doctor chosen by the adjuster and ask for a different doctor.  The catch is that the alternate doctor must be another doctor  on the insurer’s provider list.  The worker must also know to request a copy of the provider list.

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Effective January 1, 2013, the mileage reimbursement payable pursuant to NRS 616C.150 is increased one cent per mile from 55.5 cents to 56.5 cents.

The rules for reimbursement remain the same.  If you travel more than 20 miles one way for authorized medical care (including therapy, diagnostic testing, office visits to the doctor), you should complete the reimbursement form.  You also qualify if you must travel more than 40 miles in a given week for medical care.  Group your visits on the reimbursement form by the week so that the adjuster can easily see that you qualify.  Use map quest to calculate your mileage from your home or work to the medical provider.  Do not wait until the end of your claim to send in the reimbursement request forms.  The reimbursement request form must be sent in within 60 days of your qualifying travel.  keep a copy of the form that you send to your adjuster.   Give the adjuster at least two weeks to send a reimbursement check to you.

Let’s say that you are injured at work and you go to the clinic designated by your employer for treatment and to fill out a C-4 Claim for Compensation.  Within 30 days after the adjuster receives the C-4, the adjuster must either accept or deny your claim. The adjuster will usually call the employer to get the employer’s information about the accident, and to ask the employer whether the employer thinks  you have a legitimate claim.  If there were witnesses to the accident and the employer doesn’t question that your were injured while working, the adjuster then sends you a Notice of Claim Acceptance. 

Be sure to check the upper portion of this form where it lists the body parts accepted on the claim.  Things can get tricky when the adjuster says "lumbar strain only" when your treating doctor later gets an MRI of your low back and finds a herniated disc.    I have several cases right now where the Notice of Claim Acceptance said "lumbar strain only", and after several months of treatment for herniated discs, the adjusters refused to schedule an impairment evaluation to rate the ongoing complaints because any lumbar strain should have been healed by now.  

You also need to check that all injured body parts are listed as accepted on the claim.  If the Notice of Claim Acceptance only says that your left shoulder is accepted, but you also injured your neck. you need to ask the adjuster in writing to also accept the neck.  Request that the adjuster send an Amended Claim Acceptance letter that specifically states that both the shoulder and neck are accepted.  Most injured workers neglect to do that, particularly if they are getting physical therapy for both the neck and the shoulder.   It may be possible for an attorney to include the neck even after the 70-day appeal time has run on the Notice of Claim Acceptance, but the best way to handle this situation is to write to the adjuster asking the adjuster to make a determination with appeal rights about including the neck injury on the claim. It won’t be enough to later complain to a hearings or appeals officer that you verbally told the doctor that your neck hurts too, and the doctor didn’t look at your neck when you asked him to do that. 

Injured workers usually feel relieved to get a Notice of Claim Acceptance.  They rarely read the form carefully to make sure that the adjuster is not trying to limit the scope of the claim to a lesser diagnosis or to only one of several injured body parts. 

A recent study published by the NIOSH (National Institute for Occupational Safety and Health) this month discusses more scientific evidence of a cause-and-effect relationship between specific cancers and firefighters’ exposure during firefighting activities.

Our office will be closed for the Christmas holiday on December 24, 25, and 26.  We will be open on Thursday, December 27 and Friday, December 28.

We will also be closed on Monday, December 31, and January 1, 2013.  We will be open on Jan.2.

Happy Holidays! 

A friend today asked me about about an article in the Las Vegas Sun today regarding a Metro office who was caught doing something stupid and is being prosecuted for theft related to his workers’ compensation case.  The Nevada Attorney General is responsible under Nevada law for investigating and prosecuting any injured workers an insurer or self-insured employer believes is obtaining medical or compensation benefits fraudulently.  I don’t represent the officer who is charged, and I don’t know exact circumstances of his case. 

The problem with the short article is that while it may be factual, it helps perpetuate the myth that workers’ compensation fraud by injured workers is prevalent.  It isn’t.   Metro officers in particular are not the type of people who file fraudulent claims.  Obviously, police officers get hurt a lot. Their jobs are physical.  The interact with violent  criminals,  and they are on bikes, motorcycles and in patrol cars.   The officer mention in the article is the only Metro officer currently under prosecution for workers’ compensation fraud. 

Previously,  I wrote that only 93 cases were  referred to the Attorney General’s Office in 2011 out of the approximately 50,000 claims that were filed in Nevada.  (The DIR did not have the exact  2011 statistics available.)  I just spoke with an experienced claims adjuster, who I knew when I was the Chief Attorney for the Southern Regional Office of the SIIS.  He said that he has only referred three claimants to the AG’s office in twenty years. 

My point is that if you happen to know an officer who is recuperating from a work injury or occupational illness, thank him or her for their service, and wish them a speedy recovery.  These officers aren’t faking it.

 The holidays are such a difficult time for injured workers.  Compensation checks are late due to interrupted mail service,or bad weather back East, or due to adjusters taking vacation time.  Doctors’ offices cannot find appointment times for new patients as they try to squeeze in existing clients. Hospital and surgical centers are overbooked with patients wanting to avoid a new annual deductible under their health insurance.  

I hope that  injured workers resist the temptation to get a loan on their car’s title in order to buy gifts they can’t afford.  These payday loan companies  and title lenders have sprung up like weeds on every block, with the Review Journal counting 43 in Las Vegas.  Apparently one-third of Las Vegans use these predatory companies instead of banks.   They exist and multiply because Nevada has few laws regulating how much these companies may charge as interest.  These loans are almost impossible to pay off without the borrower paying at least  twice as much as the original amount borrowed. 

Send me an email if your are an injured worker.  Let me know how you found a way to celebrate the holidays without incurring more debt.  I will enter you in a drawing for $300.  You don’t have to be a client to enter.  The drawing will be on January 1, 2013.  Happy Holidays.

 Last week I had two cases involving two different workers’ compensation insurers trying to use an injured worker’s social media online presence to deny benefits.  In the first case, the adjuster sent the hearing officer  copies of photos from my client’s Facebook page showing him playing softball.  The issue at the hearing was whether my client had legitimate medical excuses for not attending vocational  school.

 The softball photos suggested that my client was lying about his worsened back injury and ability to attend school.  The insurer didn’t see anything wrong with giving them to the hearings officer without knowing when they had been taken.  My client had actually posted these photos to his Facebook photo page months ago, before his claim was reopened for more medical care.  While my client had a credible explanation about his activity in the photos, he never expected the insurer to attempt to use his photos against him. 

My other client had been employed over fifteen years with the same employer without any disciplinary complaints when he had an accident at work causing a serious neck injury.  After his claim was accepted, he was directed to treat with a particular doctor who has an ignorant attitude toward injured workers.  During an office visit, the doctor accused him of being able to move his neck better than what he was showing the doctor.   The doctor had been sent a link to the client’s youtube video showing him playing a guitar in a amateur band after the date of his accident.  

This second client  is an older gentleman who has MRI findings that show an objective injury  to his cervical spine that may require a surgery.  Yet, the treating doctor was more interested in the youtube clip of the client cradling and strumming a guitar, and found that reason to send the client back to a job that required him to lift 80 lb. bags of cement.    

The following day, this client was humiliated further when he received a disciplinary notice from his employer.  The employer apparently intended to terminate him for allegedly falsifying the extent of his neck injury,  based on this same youtube clip.  The client then hired legal help.  He did not lose his job, and his care is being transferred to another doctor.  

Both of these clients did nothing wrong, and neither had any idea  that what they had put  up for friends and family  to view on  the internet  would result in such problems on their workers’ compensation claims.  The lesson for injured workers is to be aware that employers, adjusters, private investigators, co-workers, nurse case managers, opposing attorneys, doctors, physical therapists, vocational rehabilitation counselors, and anyone with access to your social media sites may misinterpret, intentionally or not, something you post as being inconsistent with your work injury.  Be aware that in addition to photos you or your friends post of you, your friends and you  might comment about recent activities or trips that are entirely innocent, but that could be twisted and used against you.  It may be wise to deactivate all of your social media sites while your claim is pending.  

Many of my clients with very severe injuries must learn to accept that they will live with pain the rest of their lives. After they exhaust all that doctors have to offer and realize that there is no “fix”, these clients either adapt and live reasonably happy and productive lives, or they stay miserable. How individuals adapt and move forward while they feel pain every day is fascinating to me. My job as a lawyer is not to provide medical treatment or medical advice, but I like to share what I learn on this subject.

I was watching the TV program Rock Center with Bryan Williams two weeks ago when a piece came on about a virtual reality video game that was created to distract patients’ brains from sensing pain during painful medical treatments. The show featured a disfigured service man who was severely burned and who had to endure excruciating procedures to treat his burns. The usual opiate medications used to treat pain simply weren’t enough.

The virtual reality video game, called Snow World, had the burn patient wear headphones and a headset to immerse him in a peaceful, snowy landscape where he was required to lob snow balls at penguins and other animals. An MRI of the patient’s brain gave objective proof that the patient was truthful when he said that he felt significantly less pain when he was playing the video game. The show also featured researchers applying a mildly painful heating device to the reporter’s foot before and during her playing the video game. She also was convincing in her statements that her pain was almost eliminated when she was focused on playing the game.

If you would like to learn more about this, here is one link: http://www.hitl.washington.edu/projects/.

I intend to research this further and ask local pain management physicians whether they have any information about using this device to treat chronic pain, and who locally is using it. The University of Washington link above also has research papers on using the game to treat post-traumatic stress disorder, and fear of spiders. Interesting.

 Preliminary reporting by the  U.S.bureau of Labor Statistics for 2010-2011 states that there were 458 homicides in the workplace nationwide.   22  of those work fatalities were in Nevada and were  caused by violent  co-workers, employers or others.  However, not all violent deaths or injuries that happen at work are covered under workers’ compensation insurance. 

 An employee who is the victim of workplace violence by a co-worker, employer or a deranged stranger may or may not have a compensable claim, depending on whether the injury or death arose out of and in the course and scope of employment.  Just because an injury or death occurs at the workplace does not mean that it is compensable as a workers’ compensation claim.

For example, I received an inquiry by an employee who was physically attacked and injured by her supervisor when she told her supervisor that she was quitting her job.  If in fact the supervisor was so enraged by the employee’s resignation at a time when the company was short-staffed, the physical injury to the employee will probably be regarded as work-related.  If, instead, the supervisor’s attack on the employee was caused by the employee dating the supervisor’s boyfriend, then it can’t be said that the work injury arose out of and in the course and scope of employment.