Workers' Compensation Attorney

 The Las Vegas Chamber of Commerce magazine "Business Voice"  reported in the June 2012 edition that Nevada employers with a history of claims should expect to pay higher premiums beginning on March 1, 2013.   Premiums are set by the National Council on Compensation Insurance. The number and severity of work injuries are compared with the claims histories of similar employers.  Employers with expensive lost time claims will pay much higher premiums than employers  with fewer claims.

This magazine article advises employers to make sure that every claim is accurate and closed in the next three months before new policy premiums take effect.  It also encourages employers to prevent future claims by making the workplace safe.   It discusses that employers with temporary light duty work programs can save thousands of dollars in premiums by keeping the claim as a medical only claim.  ( A medical only claim is a claim where only medical bills are paid, and no lost time compensation benefits are paid.)

These are good suggestion for employers to save on workers’ compensation premiums. However, I’m concerned about the statement  that employers can lower the number of claims filed  by rewarding employees who don’t have claims..   While such reward programs undoubtedly  result in fewer claims,   However, some employers go too far and use so-called safety  incentive programs as a way to intimidate and discourage employees with job injuries from filing legitimate claims.  

Employers should not be offering to pay injured employees cash for not filing a claim after an employee is injured. Sometimes a person does not know how seriously they are injured in the first days or weeks after a work accident.  For example, the sudden onset of low back pain  at work after lifting a heavy truss could be just a bad sprain.   Not wanting to be the one to ruin his employer’s claim-free record this year,  this injured worker might not report the injury as work-related when he first gets medical treatment.  Only after the injury does not improve, and a MRI shows a herniated disc , does the injured worker file a claim.   That claim may be denied by the insurer however, because it was not reported  and filed right away.

Question by an injured worker:  Will accepting a permanent partial disability (PPD)  award affect my job?   

Answer:  It shouldn’t.  Having permanent work restrictions may affect your job, but your accepting a PPD award shouldn’t.   Here’s why.

 PPD awards for injured workers with Nevada workers’ compensation claims are based on a combination of three factors : the age of the injured worker, the wages the worker was earning at the time of his injury, and the percentage of impairment determined by a rating doctor.

The rating doctor must use a book published by the American Medical Association called The Guides to Evaluation of Permanent Impairment.     Current Nevada law requires that rating doctors use the Fifth edition even though the AMA has published new editions. You may purchase the Guides and other books and newsletters about the Guides at  www.amabookstore.com.

The Guides tell the rating doctor how to examine the injured worker, how to measure lost motion in joints, and how to calculate a percentage for anatomical, physical impairment. The factors used   to calculate the  percentage of whole body impairment  are not related to what the injured worker does for a living.  The plumber with partial amputation of his thumb will get the same percentage of impairment as the clerical assistant with a similar amputation.  However, the amount of money offered for the PPD award also depend on the claimant’s wage at the time of injury as well as the injured worker’s age.  

The word "impairment" often confuses people. Some employers  do not understand at first that an injured worker can be entitled to a PPD award under the Guides even though they might also have a full duty work release from the treating doctor.   Instead of the PPD report, the employer should rely on the treating physician’s last progress report with the permanent work restrictions or the full duty work release.  

A client brought to my attention that there is a Senior Ride Program with the Aging and Disability  Services Division of the State of Nevada.  Persons 60 years of age or persons of any age with a permanent disability should bring a letter from their doctor stating that the person has a permanent disability. This program provides discounted taxicab coupon books of $20 worth of cab fare for only $10.  For more information on the program, please call 702-486-3581, or visit their website at www.nvaging.net.

As a service to my existing clients and other injured workers, I ask attorneys who practice other types of law in Nevada to write guest blog posts.  Attorney Martin Prybylski  handles bankruptcy cases, DUI cases, immigration cases, and he has clarified whether you need an attorney if you get a traffic ticket.  Martin’s office is in the same building as my office, and he does handle traffic tickets.  Virginia Hunt

Do I Need an Attorney for a Traffic Ticket?

Las Vegas residents see numerous advertisements every day for attorneys that want to "fix" your ticket.  Most attorneys promise no points on your license, no increased insurance rates, no traffic school and no court appearances.  What most individuals do not understand is that these are standard deals.  Most individuals can appear themselves in court and get a comparable deal for the hassle of waiting in line and appearing in court. 

So, why hire an attorney?  One word:  CONVENIENCE.  An attorney has fast tracked access to the courts to obtain deals that typically allow individuals to reduce their tickets to parking infractions thereby avoiding insurance hikes, traffic school, and points on their license.  By having the attorney appear on your behalf, you will save on average several hours of your day in the middle of the work week.  Due to the ease of handling traffic tickets most attorneys charge low prices.  Watch out for attorneys overcharging for basic tickets, but do not be surprised if a ticket is more expensive if it is in an outlying jurisdiction or if it has gone to warrant.

A simple google search can help you find an attorney near you who handles tickets.  Many attorneys handle traffic tickets to supplement their practices or as favors to their existing clients.  I, for example, primarily handle bankruptcies for consumer debtors.  I also handle traffic tickets for my existing clients or new clients for a small fee.  If you already have an attorney for another matter, they may handle your ticket for free!  Don’t be afraid to ask.

Whatever you do to handle your ticket, don’t simply pay the fine on your ticket!  Either appear yourself or have an attorney appear on your behalf.  Avoiding the points on your license are worth the extra hassle or money.

By Martin Prybylski, Esq.

1945 E. Warm Springs Rd.

Las Vegas, NV 89119

(702) 433-2000

Both employers and injured workers are unsure about the law on firing an injured worker who is actively treating with a doctor on an accepted workers’ compensation claim in Nevada.  Most people know that an injured worker cannot be fired simply because he or she files a claim for workers’ compensation benefits. There is an old case from the Nevada Supreme Court that allows an injured worker to sue his employer for money if he can prove that the employer fired him for filing a workers’ compensation claim. Not too many employers are apt to make the mistake of not having some other reason, real or not, for terminating an injured worker.   In the past, I’ve only encountered one employer who wrote on a termination notice that  the employee was fired because he "filed a comp claim".  

Most job terminations instead  result from an injured worker not wanting to work temporary light duty work that the employer offers to accommodate the physical restrictions given by a doctor.   If the temporary light duty  work is mindless, and it’s a hassle for the injured worker just to get to work, bad feelings quickly develop between the employer and the injured worker.

It may seem like the light duty job is punishment  for getting hurt at work and filing a claim.  And maybe the employer’s light duty work program is a thinly veiled threat to employees not too file claims or to get hurt at work.  But, the law only says that  permanent light duty job offers cannot be demeaning and degrading.  Permanent light duty jobs have a completely different set of rules.

Employer can create "special jobs" just for injured employees with open compensation claims and point to statistics that show that injured workers on light duty get better faster.    That  means that the employer can have a policy or rule that injured workers who refuse temporary light duty (and who don’t have any FMLA, or vacation or personal time left) can be disciplined, including fired.

In general (and you should  seek individual  legal advice for your circumstances), Nevada employers can and will fire  employees who are working light duty jobs after their job accidents if they have a good reason for firing the employee.  Again, common reasons given by employers pertain to the employee  for not showing up for light duty  work, calling in sick too many times,  and not performing the light duty job.

The present statute allows insurers to deny compensation benefits to injured workers who are fired while working temporary light duty,   if the insurer denies compensation benefits within 70 days after learning about the job termination.  Benefits should only be denied if the injured worker was fired for gross misconduct., but insurers routinely deny benefits for any kind of job termination and bet on the employee not appealing.  

Employees who complain that their injuries prevent them from going to work at all, need  to be aware that their employer is entitled to rely on the  treating physician’s progress report . If that report says the patient can work with restrictions, and the employer offers such work, the injured worker won’t win any  battles that depend on self-serving statements of his inability to work light duty,  Employers, and hearings and  appeals officer will  rely almost exclusively on the physician progress report. For example, if the progress report doesn’t restrict  the number of hours an employee can stand at work, the employer can assume that the employee can stand for his entire shift.  

The injured worker must make sure that the treating doctor is aware of what kind of work the employer is likely to offer so that they injured worker can request  restrictions that make sense. Instead of complaining  to the employer that he cannot do temporary light duty work, the injured worker should quickly return to see his physician to discuss any necessary  additional restrictions.  Meanwhile, the employee should try to do the light duty work.  Not showing up for light duty work may get the employee fired, and it will be a legal fight to get benefits.  

I have had a lot of success in obtaining compensation benefits for employees who are fired during temporary light duty.  Employers and insurers don’t always know or follow the law.  However, an injured worker doesn’t want to go without a paycheck or a comp check while filing an appeal.  The best course is to show up for the temporary light duty job, get any necessary additional restrictions from your doctor, and to quickly get a free consultation with a lawyer to discuss your particular case. While you still may have to do some kind of temporary light duty eventually, your attorney may be very helpful in guiding you through these problems.

A blog post by Thomas A. Robinson for Lexis Nexis discusses a recent case  involving Utah’s law that presumes that an injured worker is intoxicated and that the accident was caused by intoxication if any illicit drug or alcohol is found in the injured worker after the accident.  The case concerns a construction worker who stepped off the edge of decking at a construction project and fell fourteen feet to concrete below. A urine sample taken from him at the hospital on the day of the accident tested positive for cocaine metabolites. The construction worker won the appeal on his denied claim by subpoenaing witnesses to testify that  the worker was not acting impaired before the accident.

Nevada’s law, NRS 616C.230  is similar to Utah’s law with its rebuttable presumption that  a work injury is caused by a worker having any amount of alcohol or a controlled substance in his system.  The presumption has been rebutted in two past Nevada Supreme Court cases involving marijuana. 

Last year I settled a case that was similar to the Utah case.  My client, a drywall installer, had coffee and chatted with supervisors for about ten minutes before starting work.  Shortly after he began working, he had to use a short step-up ladder on an uneven floor,  He lost his balance, fell, and  fractured his wrist.  He tested positive for marijuana metabolites at the hospital, and his claim was denied.  If we didn’t win his appeal, he would be on the hook for large medical bills, a long period of off work with no benefits, and no award to compensate him for being unable to move his wrist normally. 

I was able, however, to rebut the legal presumption that marijuana intoxication caused my client  to fall from a step-up ladder that should not have been used on this project.  Our expert toxicologist was prepared to testify that the amount of marijuana metabolites found in the client’s urine did not prove that he used it recently or that he was impaired when he had the accident.  Additionally, he had supervisors and co-workers who observed him acting and moving normally when he reported for work and had coffee with them.  

Some of these intoxication cases can be won by experienced workers’ comp attorneys.  You do need to cooperate with your employer’s request that you submit to blood or urine testing immediately after your injury.  You also need to be aware that while you may win your workers’ comp appeal and get the claim accepted, your employer may nonetheless fire you for not complying with their company policy on drug or alcohol use.  

I went to University of San Diego School of Law with criminal law attorney Mace Yampolsky.  Mace is a board certified criminal law specialist who has over 25 years’ experience defending people in southern Nevada against all types of criminal charges, including DUI, drug crimes, weapons charges, and domestic violence.   He is a fierce protector of an accused’s rights, and has dedicated his career as an attorney to holding the legal system accountable to the law it is sworn to maintain.  Below is a guest blog post he wrote discussing the importance of obtaining an experienced attorney if you are ever accused of spousal abuse:

The state of Nevada takes allegations of domestic violence very seriously and will frequently pursue a criminal action against an alleged spousal abuser-  even if the victim does not want to prosecute. A conviction of domestic violence charges carries stiff penalties, including the loss of the right to own a firearm, fines, probation, or even jail time for a first time offense.  With so much at stake, it is essential to have an experienced attorney who can  protect your rights and build a powerful defense on your behalf.

In some domestic violence cases, false accusations are made out of spite or to further the alleged victim’s own agenda.  In a divorce proceeding, for example, a mother may claim spousal abuse in order to harm her husband’s credibility in a custody battle.  A diligent and seasoned attorney knows how to expose these accusations for the lies that they are.  if the charges are legitimate, an experienced attorney will work to plead the case down to a lesser offense, such as breach of the peace or trespassing.

At the Las Vegas law firm of Mace Yampolsky & Associates, we work tirelessly to protect the rights of clients who have been charges with crimes. Each case is prepared as if it were going to trial with the goal of restoring your freedom.  We fight to win.  

Mace J. Yampolsky

625 South Sixth St., Las Vegas, NV 89101

Las Vegas, NV 89101

Ph: 702-385-9777

fax: 702-385-3001

Website:  www.macelaw.com

If your claim is accepted and your authorized treating physician prescribes medication for you, but your pharmacist tells you that there is a problem, follow these steps

1. Have a copy of your claim acceptance letter with your claim number and name and address of your third-party administrator or insurer in hand when you go to the pharmacy.

2. Do not confuse things by giving your pharmacist your health insurance card.  Instead, you want the workers’ compensation carrier billed.

3. If the pharmacist tells you that your prescription has been denied, pay for the medication so that you can get it started if it is essential that you start it right away.  For example, it you just had surgery and need an antibiotic, don’t wait.  Or, if you need pain medication right away, just get the medication, and then straighten out the problem.  It can take a day or two to get medication problems resolved, so don’t drive yourself crazy by not getting the medication if you can afford it.   Keep a copy of the receipt that shows what medication you paid for, and send it to your adjuster, requesting reimbursement.

4. Call your adjuster or fax or email the name of the medication, who prescribed it, and the name and phone number for your pharmacy.  Don’t just leave a message or complain that you didn’t get your medication authorization. Make sure you give the adjuster information she can use to fix the problem.

5. If you have a nurse case manager assigned to you case, instead of calling the adjuster, you can call the nurse case manager. She is likely to be more familiar with what the doctor prescribed, and may be able to help you quicker. Again, give her your pharmacy phone number.

6.  Expect delays if the medication ordered is an expensive proprietary formula, as the insurer may question why generic wasn’t prescribed, or whether other medications were tried first.  Maybe your doctor can give you some samples to start if he knows that insurers usually drag their feet on authorizing this particular medication.

Unfortunately, I expect more problems in the future obtaining medication for injured workers.  According to an recent article in Business Insurance, there is a growing trend among states to creating medical guidelines for doctors prescribing opioid pain medications to workers’ compensation claimants.   Additionally, many insurers now use intermediary companies that involve another step in the authorization process, and thus, more delays.

Los trabajadores lastimados en Nevada que no tienen los documentos apropiados para comprobar su derecho de trabajar legalmente en los Estados Unidos tienen derecho a los mismos beneficios que cualquier otro trabajador lastimado, menos a los beneficios de rehabilitación vocacional. Todos los trabajadores lastimados tienen derecho a cuidado medico relacionado con su lección de trabajo mientras estén empleados por un empleador de Nevada, aunque estén trabajando en el país ilegalmente.

El trabajador lastimado necesitara comprobar que estaba empleado por un empleador de Nevada cuando haya ocurrido el accidente o lección en el trabajo. El comprobar que son empleados de un empleador de Nevada se puede dificultar si reciben pago en efectivo en vez de recibir un cheque del empleador apropiado. 

Asumiendo que el trabajador le mintió a su empleador de su estado legal para obtener el trabajo, el trabajador de todas maneras tiene derecho a cuidado médico y a casi todos los beneficios de compensación cuando la relación de empleo sea comprobada.

Adicionalmente, los trabajadores indocumentados también pueden recibir beneficios de incapacidad temporal total (TTD), estos beneficios son el 66 y 2/3 porciento del promedio de su sueldo mensual, siempre y cuando no sobrepase lo máximo permitido por el estado, si el médico que está a cargo del tratamiento del trabajador lastimado reporta que no puede trabajar a consecuencia del accidente de trabajo. Si el trabajador tiene restricciones temporarias de trabajo ordenadas por su médico y su empleador no le ofrece trabajo ligero en ese entonces el trabajador lastimado también tendría derecho a recibir beneficios de incapacidad temporal total (TTD) mientras este bajo tratamiento medico. Aún es más sorprendente a los trabajadores indocumentados lastimados es el darse cuenta que ellos tienen derecho a recibir una compensación de incapacidad permanente parcial (PPD) al final de su tratamiento medico por cualquier daño permanente a causa de su lastimadura.

Lo que los trabajadores indocumentados no pueden recibir son beneficios de rehabilitación vocacional. Solamente los trabajadores lastimados que tienen una Forma de Comprobación de Elegibilidad de Empleo I-9 que puede ser verificada, tienen derecho a una continuación de cheques bisemanales mientras él o ella toma parte en un programa de re-entrenamiento vocacional. Y, solamente los trabajadores lastimados documentados pueden solicitar una cantidad de dinero entera si eligieron no participar en un programa de re-entrenamiento vocacional.

La mayoría de los abogados de compensación laboral ofrecen una consulta gratuita para revisar su caso en particular y aconsejarle. No haga el error de pensar que usted no tiene derecho a cuidado medico apropiado, o que no tiene derecho a beneficios de incapacidad temporal total (TTD), o que no tiene derecho a recibir una compensación final de incapacidad permanente parcial (PPD) simplemente porque está en los Estados Unidos trabajando ilegalmente. Llame para una Guía gratuita a la Ley de la Compensación de Trabajadores Lastimado de Nevada en español. (702) 699-5336.

Injured workers in Nevada who do not have proper written proof of their right to legally work in the United States are entitled to the same benefits as any other injured worker, except for vocational rehabilitation benefits.  All injured workers are entitled to medical care for a work-related injury while working for a Nevada employer, even if they are working in the United States illegally. 

The injured worker does need to be able to prove that he was working for a Nevada employer at the time of the accident at work.  That may be difficult if he is paid cash instead of a proper paycheck.

Assuming that the worker lied to the employer about immigration status to get the job, the worker is nonetheless entitled to medical and most compensation benefits once the employment relationship is proven.  

In addition, undocumented workers may receive temporary total disability benefits, payable at 66 2/3 of their average monthly wage, up to the state maximum, if they are taken off work by their treating physician as a result of the work accident.   These compensation benefits are also payable if the employer is unable to provide temporary light duty employment while the injured worker is treating for his injury.  Even more surprising to most undocumented injured workers, they are entitled to receive a permanent partial disability award at the end of treatment  for any permanent injuries.  

What undocumentated injured workers  may not receive are vocational rehabilitation benefits.   Only injured workers who have an Employment Eligibility Verification Form I-9 that can be verified, are  entitled to a continuation of bi-weekly checks while he or she participates in a retraining program.    And, only documented injured workers may request a vocational rehabilitation lump sum buy-out if they chose not to participate in retraining.   

Most workers’ compensation attorneys offer a free consultation to reveiw your particular case to advise you.   Don’t make the mistake of thinking that you cannot get proper medical care or compensation benefits or  an award just because you are in the United States working illegally.  Call for a free Guide to Nevada Workers’ Compensation Law in Spanish.  (702) 699-5336.