Workers' Compensation Attorney

I’m pleased to introduce a new staff member, Garth Baker,  to the firm’s clients and the many other injured workers who rely on this law blog for information about Nevada workers’ compensation law.  Garth became a paralegal after retiring  from the  Las Vegas Metro Police Department  as a Detective.   He served as a police officer in the capacity of patrol, field training officer, property crimes detective, financial crimes detective, and finishied his career as a robbery/homicide violent crimes detective.  He is also an entrepreneur in network marketing and a radio talk show host.

Garth explains his decision to begin a second career as a paralegal as follows: 

"In 2002,  I was involved in an officer shooting where I was injured by gunfire.  I lost a good portion of my hearing, leaving me to rely on amplification for the remainder of my life.Three years after my injury  I was still in a continuous battle with my workers’ compensation provider and my employer over medical care and benefis.  I  decided to empower myself  to do something about that fight, and went to school to become a paralegal.

In 2010, after more years of fighting with my employer and workers’ compensation insurance managers,  I retired from Metro. As a paralegal,  I sought employment with personal injury and workers’ compensation firms so I could take my personal experiences and put them to work for those injured workers who are going through similar situations on their claims. My recent association with the Law Office of Virginia Hunt in 2012 affords me the opportunity to fully embrace the injured worker with my passion of making sure they are taken care of medically and legally.   I know what it’s like to be denied coverage and what it’s like to go through the adversities of getting proper medical treatment.  I’m excited to be working behind the scenes assisting Attorney Hunt  in providing the best possible service on a client’s case. "   Garth Baker

     In Sierra Nevada Administrators v. Negriev, the Nevada Supreme Court held that when an injured employee reports tip income to his or her employer, that income is included in the average monthly wage calculation.  The average monthly wage calculation is used to determine how much an injury worker receives for compensation benefits.

The injured worker in this recent case was a bartender at a sports pub. He reported his tip income to his employer, but the employer did not include the tip income on his paycheck.  While the bartender reported his tip income to his employer, he did not include his tip income on tax returns filed with the  IRS. The court said it was irrelevant whether the injured worker actually paid taxes. The key was that the bartender had actually reported his tips to his employer.

Remember that the average monthly wage is a factor in calculating the permanent partial disability award as well as the compensation benefits due when lost time compensation is paid.  Make sure that you discuss your average monthly wage with any attorney you see for a consultation  so that the attorney can check for legitimate increases that may have been overlooked.

     Unless you have a very obvious surgical problem, it usually takes two to three months for the adjuster on your worker’s compensation claim to schedule a consultation with an orthopedist or a neurosurgeon.   I like to remove my clients quickly from the clinic mill, with a request for change of physicians right away.  Otherwise, the  clinic doctor waits months to request a surgical consultation after  physical therapy hasn’t made you better, and after  the clinic doctor finally gets a MRI .

     If you have a knee or shoulder injury, the consult is with an orthopedic doctor on the insurer’s provider list.  If you have a low back or a neck injury, the consult may be with either an orthopedist or a neurosurgeon.  If you or your attorney has not done so already, ask for a copy of the insurer’s provider list, and get help in selecting the best surgeon.  Don’t rely on the insurer to choose the best surgeon for the consultation.     

      Surgeons are very busy, and you want to be prepared to get answers.  Copy the questions below and bring them with you, along with your MRI films.

1.  Do you think surgery is necessary?

2.  Can my injury be treated without surgery? 

3.  What can go wrong if I get surgery? 

4.  If I don’t have surgery, will my condition get worse? 

5. How long do you expect me to be off work after surgery?

6.  Do you think I will be able to go back to my regular job, or will I have permanent work restrictions?  

You are entitled to get a copy of the surgeon’s dictated report by requesting it from your adjuster, or ask the surgeon’s office directly.  It takes about a week to ten days for the report to be dictated.

Yes, I’took a long weekend and am taking another.  That means little time for blogging and another guest post.  This one is by my favorite criminal attorney and law school alumnus, Mace Yampolsky.  It is hilarious.  Virginia

‘Pubic’ Enemy Caused Crash by Shaving Bikini Line While Driving 

    by Mace Yampolsky

Apparently she lacked razor-sharp focus

Megan (we’ll call her the smooth one) crashed her car in the Florida Keys while shaving her

bikini line in traffic. (Hasn’t she heard of Nair?)Megan is Florida’s first bikini-shaving-related traffic offender of the year.( How many have they had in previous years?)

According to the FHP’s report, Barnes was driving about 45 mph through Cudjoe Key when she decided to shave her bikini region while her ex-husband,(‘l call him the stupid Schmuck), steered from the passenger seat. The plan went awry when an SUV slowed in front of Barnes’s Thunderbird in order to make a turn .I guess her reaction time as slowed down because she was too busy grooming her hoohah to pay attention to the road.(Like that has never happened to you!)

The 37-year woman was allegedly too concerned with her trim-job to notice and slow down. Her Thunderbird slammed into the back of the SUV near Mile Marker 21. I’ve heard about putting your best foot forward, but this is ridiculous.

Check out this fantastic quote in from one of the state troopers who responded:

"She said she was meeting her boyfriend in Key West and wanted to be ready for the visit," Trooper Gary Dunick said. "If I wasn’t there, I wouldn’t have believed it. About 10 years ago I stopped a guy in the exact same spot… who had three or four syringes sticking out of his arm. It was just surreal and I thought, ‘Nothing will ever beat this.’ Well, this takes it."

The pubic-maintenance crash wasn’t her first brush with the law. In fact she had been convicted the day before the crash with DUI and driving with a suspended license. She faces a new felony hit-and-run charge and two misdemeanors

The day before the wreck, She was convicted of DUI with a prior and driving with a suspended license, She was ordered to impound her car, and her driver’s license was revoked for five years, after which time she must have a Breathalyzer ignition interlock device on any vehicle she drives, Dunne said. She also was sentenced to nine months’ probation.

Ms Slick and (Her ex husband, how pathetic is that!) Her shaving accomplice-The stupid schmuck(SS) , (he was steering the car when she was performing this extremely delicate personal grooming ritual, so that she could concentrate) were driving in her Thunderbird when they slammed into the back of a 2006 Chevrolet pickup which had slowed to about 5 mph to make a turn when the Thunderbird hit him, traveling about 45 mph, which was within the speed limit, Dunick said. ( She had fun fun fun until the po-lice took her T-bird awaaaaaaaay)

She allegedly drove another half-mile, then switched seats with SS, who allegedly claimed to be driving,"She jumps in the back seat and he moves over," Dunick said. "It was like the old comedy bit, ‘Who’s on first?’ "Burns on SS’s chest from the passenger-side airbag deploying belied their story, Dunick said. The airbag in the steering wheel did not deploy, he said. (that pesky evidence!)

Troopers charged Megan with driving with a revoked license, reckless driving, leaving the scene of a wreck with injuries and driving with no insurance .SS was not charged.( He should be charged with stupidity and sentenced to permanent revocation of his man card! He needs to get a life!) She faces a maximum of a year in jail if found guilty of violating her probation due to the wreck, Dunne said.

"My phone has been ringing off the hook all day, and I know there’s a funny side to this, but it’s also deadly serious. This is a scary road and a lot of bad wrecks are caused by dumb stuff like this," Dunick said. "It is unbelievable. I’m really starting to believe this stuff only happens in the Keys."

             It doesn’t. I had a client in a DUI case walk the line on her hands(she was a gymnast) and then kick out the window of the cop car. I also had a client’s wife that took off all of her clothes when the police stopped the car her husband was driving while she was a passenger. She was arguing vociferously when the cop told her to leave or be arrested. She did, naked as a jaybird. While walking home, another patrol car asked her what she was doing and drove her home. (After he put a plastic sheet over his seat where she sat.) Truth is stranger than fiction.

One shouldn’t worship false idols and they say that cleanliness is next to Godliness, but for God’s sake, do your depilatory work at home -not in a moving vehicle, especially not driving. No one should be in that much of a hurry!.

I am excited  to welcome Francesca Senior to my staff as new office administrator and legal assistant.  Francesca has an amazing background in international horse horse show jumping as a  professional rider and trainer.  She brings her experience in the horse industry in barn management, sales and marketing of European sport horses, charity fundraising, and managing  horse shows to the legal industry.  Her unique knowledge of how to help people learn new skills and  systematically reach desired goals translates remarkably  well from training competitive riders to servicing injured workers who must transition into new occupations. 

Francesca’s guest blog below demonstrates her fresh approach to helping people with work injuries, including work-related post-traumatic stress discorder (PTSD).  The specific  requirements for a compensable occupational stress claim in Nevada  are in NRS 616C.180.  The suggestions in Francesca’s  guest blog post  are points for discussion and are not to be considered treatment for PTSD or a substitute for medical care.

     CAN A VIDEO GAME IMPROVE YOUR LIFE?

By Francesca Senior, guest blogger                                         

          Living in Las Vegas your first thought may be, well, how big is the jackpot? But as any seasoned gambler will tell you, the rush of a win is quickly forgotten and it’s often the house winning, not you.

          What if there was a game that you could play and win real life rewards, such as add more time to your life or strengthen your relationships with friends and family? Or even, help you recover from a traumatic event? How about a game that could be a tool to treat someone contemplating suicide? A game that can make anyone’s life better and maybe even save some lives?

What if I told you the game not only exists but it’s free to anyone online?

          The game is called “SuperBetter” and game designer Jane McGonigal got some of the brightest minds in the country, including a Stanford Professor of Neurosurgery, to develop the game using scientific research to help real people solve real life problems. Her team of sociologists, scientists, a few professors of psychology at Berkeley, Ohio State University rehabilitation specialist along with countless others make up what she calls her scientific advisory board.

          From the SuperBetterwebsite, “At Superbetterlabs, we apply technology and design to empower individuals and communities to live epic lives.” Jane McGonigal explains, “SuperBetter helps you achieve your health goals- or recover from an illness or injury- by increasing your personal resilience. Resilience means staying curious, optimistic and motivated even in the face of the toughest challenges.”

          In April of 2012 The Oprah Winfry Network (OWN) and Oprah.com teamed up with SuperBetter Labs to launch “Oprah’s Thank You Game” on Facebook, which reportedly had 2.3 million people playing within 36 hours of the games launch.

To hear more about SuperBetter:

http://www.ted.com/talks/lang/en/jane_mcgonigal_the_game_that_can_give_you_10_extra_years_of_life.html

http://www.colbertnation.com/the-colbert-report-videos/373360/february-03-2011/jane-mcgonigal

If you would like more information, or to play SuperBetter at no cost:

www.superbetter.com  

Click here for a short video on how workers’ compensation laws developed in the U.S.   Remember that each state has its own laws, and that the idea is to compensation all injured workers to some extent.  In order to require that employers purchase workers’ compensation insurance policies, the cost has to be affordable for employers.  That means that injured workers are not compensated 100% for lost wages.  Injured workers  do not receive the same type of settlements that people may recover when they sue someone at fault for their injury  who is not a co-worker or an employer. 

 In 1995, the Nevada legislature passed a law, NRS 616D.030,  that injured workers could no longer sue workers’ compensation insurers or the third-party administrators who handle comp claims .Injured workers had been filing  lawsuits for money damages against  insurer’s or TPA’s for their  "bad faith" or negligence in denying or delaying medical care and compensation benefits, The large employers and their insurers were successful in convincing state legislators to  do away with  these lawsuits entirely.  The lawmakers replaced the injured workers’ right to sue with a law that  only allows injured workers to file complaints with the DIR.

The Division of Industrial Relations is the state agency responsible for ensuring insurers, self-insured employers, and TPA’s compliance with the laws and regulations governing work accidents and occupational diseases.   If an injured worker thinks that the adjuster handling her claim is not following the law in handling her claim, she may file a written complaint with the DIR.  The complaint does not have to be on any particular form, but this form can be used.

DIR is supposed to investigate any complaints for violations of the law.  If DIR finds a violation, it may then hit the insurer or TPA with an administrative fine and a benefit penalty to punish the insurer or TPA.  Administrative fines can range from $3,000 to $15,000 depending on whether this is a first, second or subsequent violation.    In addition, the DIR may also order the insurer or TPA to pay a sum of money, called a benefit penalty  (up to $50,000),  to an injured worker.  The benefit penalty amount depends on how much harm was caused to the injury worker by the adjuster’s violation of the compensation laws. 

Attorneys who represent injured workers generally believe that this system of fines and penalties does not adequately compensate injured workers who are harmed by an adjuster’s failure to handle claims according to the law.  Attorneys would prefer to bring a lawsuit against the insurer or TPA to recover money damages awarded by a jury.  Attorneys argue that the administrative fines and benefit penalties don’t sufficiently deter insurers and TPA’s from trying to shirk their duties under the law to pay legitimate claims on time and to provide appropriate medical care. 

DIR’s Research and Analyst Supervisor kindly provided me statistical information regarding DIR Complaints.  She said that DIR receives about 1,400 complaints every year, including all written complaints, phone calls, and emails from injured workers.  Many informal complaints are quickly resolved with a single phone call by a DIR investigator.  

As I have filed many formal, written DIR complaints on behalf of my clients over the years, I was curious as to how many formal complaints were filed every year, and in how many cases were violations found.  I was told that DIR cannot determine from its current computer program how many formal complaints last year resulted in violations.  DIR could only tell me that in calendar year 2011, there were 31 benefit penalties issued . That tells me that injured workers are awarded money through the DIR complaint process for harm caused by insurers or TPA’s in only  2% of the cases  involving alleged  DIR complaints of some sort.  

Unfortunately, the Nevada legislature said that filing a DIR complaint is the injured worker’s exclusive remedy for harm by adjusters handling cases.  Is it a sufficient remedy if an injured worker goes without necessary medical care and suffers additional injury?   Is it a sufficient remedy if an injured worker loses her home because the adjuster can’t manage to send compensation checks on time, and  to the right address, over and over again? I don’t think so.  I think that a lawsuit is more apt to get the attention of the industrial insurer.  

While filing a  DIR complaint is not likely to result in an administrative fine or benefit penalty, it still helps to file a complaint.  Adjusters dislike having to respond to an investigator’s request for information. Additionally,insurers and TPA’s can have their licenses suspended or revoked if DIR finds repeated violations. 

Given the 114 degree heat this week, I’ve had several calls from  people wanting to know  whether illnesses caused by excessive heat while working outdoors are compensable.  The law in Nevada has not been supportive of injury or illness claims arising out of all job conditions. 

In 1960, the Nevada Supreme Court held in Smith v. Garside, 76 Nev. 377, that a printing plant worker who got a chest infection, which later developed into a more serious illness, did not have a compensable occupational disease or injury claim.  The worker alleged that she got sick because her employer did not properly heat her workkplace.  The court held that her illness caused by exposure to the cold work building was not "incidental to the character of the business",  and  because her illness "could have been from a hazard to which she would have been equally exposed outside of the employment." 

This old case was cited by the Nevada Supreme Court most recently in 1992 in Palmer v. Del Webb, 108 Nev. 673. Palmer was a gaming pit boss who contracted obstructive lung deasese from the smoke-filled casino where he worked.  The Court likewise ruled that Palmer did not have a compensabe occupational disease because the smokey environment was not incidental to the  casino  business and the claimant  could have been equally exoped to second-hand smoke when not at work.

If a construction worker gets heat stroke from working in the hot July sun in Las Vegas, will his claim be accepted?  If the claim consists of just one visit to a workers’ comp provider, my experience is that the ajuster will probably pay for that doctors’ visit.  However, if one  ER visit turns into something more seriouos, then the claim will probably be denied

 For Fiscal Year 2013, which begins on July 1, 2013, the maximum average monthly wage used to calculate workers’ compensation benefits will be increased to $5,222.63.  This is applicable to injuries on claims filed after July 1, 2013.  If you have a claim established already, this increase will not affect your benefits.  The maximum temporary total disability benefit in Nevada is 66 2/3 of the maximum average monthly wage. So, if you are out of work for a month and file a claim after July 1, 2013, the most you would receive in compensation benefits for the month is $3,481.75.  If you earned less than the maximum average monthly wage at the time of your injury, you will receive 66 2/3 of your actual earned wages. Click on the category Calculating Befits to your left for more details on how benefits are calculated.  

A local personal injury attorney has a TV ad in which he says that a personal injury claim is all about the money.  While that may be true for that attorney’s clients, my clients want more than money.  Here is what on most injured workers’ minds who visit my website, read my blog posts, or meet with me for a free consultation:  

•   Poor medical care.  Most injured workers hire attorneys  because they are unhappy with the medical care from doctors their employers and adjusters assign to them..  Insurers do not want injured workers knowing  about their rights to change doctors.   Experienced workers’ compensation attorneys know which doctors on the provider lists are competent and care more about their patients than  the insurance companies who pay them.  
•  
• Not getting compensation benefits on time.  There is no excuse for an adjuster’s failure to pay temporary total disability checks on time.  Nor is there any excuse to repeatedly send checks to the wrong address,  Yet,  many adjusters aren’t careful to process checks correctly or on time unless  an attorney is breathing down their neck, ready to file appeals or complaints.
•  
• Worry about the future.   When a terrible accident occurs unexpectedly, claimants  must guess whether co-workers, their  employers, and  adjusters are giving them good information about the claims process. It’s difficult to know who to trust.  Many well-intentioned people do not deliberately give bad advice. They simply do not correctly understand Nevada law. It’s foolish not to get answers from an experienced  workers’ compensation attorney when those answers are free and when your health and economic security are at stake.   
•  
• Unfair decisions by the adjuster .Again, most injured workers don’t know  much about Nevada workers’ compensation law.  Some know when something doesn’t seem right or fair on their claim, but it isn’t always obvious when the adjuster isn’t following the law.   The time limit to appeal an adverse determination by the adjuster is a short 70 days.  An injured worker can lose valuable rights by not getting immediate help. 
•  
• Wanting to educate themselves.   Injured workers know that  they are at a disadvantage because they don’t know the law.  The smart ones take advantage of a free consultation with a lawyer to get correct information .   

If the only service you want on your comp  claim is for an attorney to get you money, then you are probably shortchanging yourself.  It’s really not just  about the money.