Workers' Compensation Attorney

Attorney Laura Stubberud is an experienced estate planning attorney who wrote the following guest blog post.  I thought it was important information for injured workers.  For more blog posts on estate planning and elder law, please visit  Attorney Stubberud ‘s blog at www.nvestatelaw.com.             

By Laura Stubberud

I am often asked what is the one thing that every person needs in an estate plan.  The answer is easy:  Health Care Directives.   Regardless of whether you have any money or property, you need to address decisions to be made during your life in the event of serious injury, illness or incapacity.  I tell all of my clients that as soon as their children turn 18 years old, they need to sign a durable power of attorney for health care. 

 They are almost always surprised until I remind them of that funny law known as HIPPA (the Health Insurance Privacy and Accountability Act – http://www.hhs.gov/ocr/privacy/).  You know what that is.  Every time you go to a new doctor or are admitted into the hospital, you must sign a HIPPA release.   Under this law, health care providers are not allowed to share your medical information with anyone who is not legally entitled to receive that information, including family and friends. 

 Imagine if your adult child were in a car accident and unconscious and you were denied information about his or her medical condition.  A durable power of attorney for health care allows you to specify who can receive your medical information.  In addition, the power of attorney allows you to set forth your desires regarding medical care if you are unable to communicate those desires yourself.  These directives allow you to specify your decisions regarding end-of-life matters as well as  religious provisions, decisions regarding nursing home care, surgeries, etc.  

Everyone over the age of 18 needs a durable power of attorney for health care.  It may be a matter of life or death, but it is definitely a matter of love.

 The Law Office of Laura E. Stubberud , 2831 St. Rose Pkwy., Suite 303, Henderson, NV 89052. Phone 702-589-4804,  email at laura@stubberudlaw.com.

Workers’ compensation insurers and their TPA’s often suspend compensation benefits when an unrelated  medical problem  surfaces to delay surgery or  treatment for the work injury.  Insurers call it "Care Interrupt". I call it kicking an injured worker when he’s already down.

For example, I had an injured worker last month who was scheduled for a work-related back surgery.  She was already receiving TTD benefits when her surgery was scheduled for the following week.   She had to get an EKG done as part of the usual pre-surgery clearance.  Her EKG was slightly abnormal and her doctor thought she should have a cardiac treadmill stress test just to make sure she didn’t have a heart problem before she underwent back surgery.   It took her almost four weeks to get an appointment with a cardiologist to get the stress test done and to have her primary care doctor review it and give the workers comp doctor clearance for the back surgery.

When the work comp adjuster heard that she had an abnormal EKG, my client’s TTD benefits were suspended until she gave the work comp doctor surgical clearance.  I successfully argued before a hearings officer that the adjuster was wrong in stopping  benefits,  because my  my client did everything as quickly as she could to get surgical clearance. 

I argued this issue before the Nevada Supreme Court years ago, and the Court agreed with me that suspension of benefits is wrong under  NRS 616.230(5) when the injured worker is not deliberately delaying treatment for the work injury.  Unfortunately, the Court did not publish that decision. The  Court  does not publish its decision in every case, and an unpublished opinion cannot be cited as legal precedent.  This means I have to present this same legal argument in each new  case, and that insurers keep suspending benefits, betting on the fact that most injured workers don’t pursue an appeal.  

If your benefits are suspended because you  need medical treatment for an injury or illness that is not work-related, make sure that you talk to an experienced attorney.  Each case is different, but many suspensions for "care interrupt" can be reversed on appeal.  Fight back!

 Injured workers, employers, and even doctors on workers’ comp provider lists in Nevada remain confused about whether an injured worker who is able to return to work full duty is entitled to a permanent partial disability award.  Depending on the injury, an injured worker may be entitled to a rating evaluation and an award,  even though the worker has been released to return to his pre=accident job without any permanent work restrictions.

The criteria for determining whether an injured worker has a ratable impairment is in the AMA Guide to Evaluation of Permanent Impairment 5th edition.  That criteria focuses on anatomic alteration or dysfunction , as opposed to an inability to perform particular job requirements.  For example,an inability to move an injured shoulder in one or more  of the measurable planes of motion may result in a whole person percentage of impairment even if the injured worker  has a sedentary job that requires very little use of the shoulder.

Another example of how this works would be an attorney and a piano player who both have a serious injury at each of their jobs resulting in the amputation of one of their pinkie fingers.  Even though the attorney may be able to return to her job full duty, learning how to type with nine fingers, she would receive the same percentage of impairment as the piano player for an amputation of the pinkie finger.  The piano player, if  unable to return to work playing piano, would also be entitled to a retraining program or a vocational rehabilitation lump sum settlement  in addition to a permanent partial disability award. 

If your treating doctor checks off the box "no ratable impairment" on your final progress report, your adjuster will send you a letter stating that your claim will be close without an impairment evaluation.  If you think that determination is in error and that  you do have a ratable impairment, take advantage of a free consultation with an experienced attorney before you go through the appeals process and before you pay $693.31 to obtain a rating yourself.   If your doctor tells you that you won’t get a rating because you can return to work full duty, you should check with an attorney whether the doctor is  correct or not .  Make sure that you file an appeal within 70days of the insurer’s determination letter closing your claim without a rating.   

Most injured workers who call me for advice are frustrated with poor medical care or problems obtaining good care as a result of insurance issues.   Making sure that injured workers get the best possible medical care is what I do for a living, so I didn’t need a personal experience to convince me how important a patient advocate is when a person is ill and hospitalized. Nonetheless, last month I personally got a huge dose myself of bad medicine and lousy insurance practices when I was unexpectedly hospitalized. During my brief (thankfully) hospital stay, the following occurred:

•      A typographical error in a CT scan report wasn’t caught until after I was given IV medication for another serious condition I did not have. 
•      I was medicated and then strapped to a gurney and transported at midnight against my wishes to another medical facility from the hospital. My condition was actually worse when I was released from the hospital. This happened without any notification to my family.
•        I was lied to by a doctor as to whether a prescribed IV antibiotic could be given at home as opposed to at the dirty secondary facility my insurance company supposedly required for another week.
•     I was denied access to my own medical records for several hours while administrators grappled with what the law and their own policy says about patients’ rights to review their own records.

These  occurred during a 72-hour period when I was too sick to demand that I speak to insurance adjusters and hospital administrators. Fortunately, I have two highly-trained and very loyal legal assistants who stepped up to make sure that nothing worse happened to me.   When I was able to talk and demand better care for myself from my insurance company and from medical providers, things changed significantly for the better.  

At a minimum, if you or a family member need hospitalization, have someone go with you who can act as a patient advocate. That person should be comfortable  with asking a lot of questions, particularly during check-in and discharge.  Make sure that your advocate has a list of medications you take daily. Give the phone number of this person to hospital personnel and ask that this person be contacted if you are moved or scheduled for a surgical procedure. Bring a cell phone and a charger with you so that you have easy contact with your advocate and family. Bring a small notebook so that you can keep notes and write down important phone numbers. 

Do not be intimidated, and be persistent in getting answers to your questions as to what is happening to you. Make sure that you understand what treatment you are getting, what medications you are being given, and who ordered them for you.  Do not assume that people know what they are doing.  Finally, bring a huge bottle of hand sanitizer with you. The AARP Bulletin, March 2012, has frightening statistics on the number of people who are victims of hospital mistakes, and what else you can do to protect yourself when hospitalized.

If your treating physician on your accepted workers’ compensation claim in Nevada reports to your claims adjuster that you may have a ratable impairment, you should be scheduled for an impairment evaluation  30 days later.  This evaluation, also called a rating,  will be done by one of the 138 doctors and chiropractors who have been tested and authorized by the state agency, DIR, to perform ratings.  The purpose of the rating evaluation is to  determine your percentage of impairment so that a  permanent partial disability award can be offered.  (The additional two factors that determine a PPD award in Nevada are the injured worker’s average monthly wage at the time of the injury, and the injured worker’s age when he or she has the evaluation.)

As of  March 1, 2012, the Medical Unit at DIR has138 physicians  and chiropractors on a rotating list.  When a claims adjuster requests a rating,  the Medical Unit secretary must  assign the next one from the rotating list.  If the injury is to a muskuloskeletal part, such as the shoulder or neck, a chiropractor may be assigned to do the rating. Some of the chiropractors on the rotating list are excellent rating doctors-   fair, knowledgeable about the Guides and anatomy, and they correctly explain their findings and conclusions.

Nevada law allows adjusters to suggest and agree with injured workers on a particular rating doctor.  If the injured worker, or his attorney,  agree to a doctor suggested by the adjuster, the agreed-upon doctor can do it instead of the doctor assigned by DIR.  Some adjusters will send unrepresented injured workers a list with the names of about six doctors and ask whether the injured worker will send back an agreement to one.  If the agreement isn’t returned, the adjuster must use a DIR-assigned doctor from the rotating list.  You don’t lose your right to obtain a second rating if you disagree with the rating physician you agreed to rate you.

An injured worker asks me:  Should an injured worker agree to a rating doctor suggested by the insurer, or insist that the insurer schedule him with one of the 138 doctors on the rotating list? 

The answer depends on whether the injured worker has an experienced attorney.  Otherwise, it is likely that the injured worker will not be  knowledgeable about each of the doctors on the insurer’s short list . If the injured worker, or his attorney,  doesn’t  know anything about the doctors , he should NOT agree. The insurer will likely suggest doctors that find lower or average impairment percentages, or that are aggressive on apportionment and like to subtract percentage points for pre-existing conditions.   Despite the objective of the AMA Guides to Evaluation of Permanent Impairment to have rating methods that will easily duplicate results , there can be a  significant difference depending on which doctor is doing the exam.

If the injured worker has a lawyer , he should hope that his attorney is familiar with how each of the different rating doctors are likely to apply the Guides.  Sometimes attorneys for injured workers agree to a rating exam with a doctor suggested by the insurer.  Not all doctors suggested by insurers are necessarily a bad choice to rate a particular client.  The key is knowing how a particular rating doctor is likely to interpret the Guides.  That comes with experience.

There are injured workers, not knowing whether a suggested rating doctor is likely to be better than one assigned from the rotating list, will circle a name anyway and return the agreement    People who do that hope that the adjuster will act in the injured worker’s best interests. The reality is that insurer’s and their employees must act so that they can show a cost savings on claims to employers concerned with premiums.  Injured workers should understand that adjusters may be acting within the bounds of the law, but not be acting within the injured worker’s best interests.  Therefore, my answer to the question is a resounding "NO".  Do not make agreements with insurers without knowing the consequences of what you are doing.

Many injured workers with severe spinal cord injuries are reluctant to mention to their treating physician that they have had sexual dysfunction since their work accident in Nevada.  Males in particular are embarrassed to bring up this topic with their doctors.  Unless the doctor initiates the discussion and directly asks about any sexual  problems, the problem isn’t noted in the dictated reporting, and isn’t treated.  And if the problem is permanent, the injured worker isn’t properly evaluated for impairment.

It is very important that if you have had a serious spinal injury that you tell your treating physician about any loss of control of the bladder and/or bowels (involuntarily urinating or soiling yourself), any loss of sensation to your genitals and surrounding area, and any  inability to engage in usual sexual activity. 

Orthopedic surgeons, neurosurgeons, and physiatrists are busy doctors, and your appointment may already seem rushed without you bringing up an embarrassing problem .  However, you should not delay in asking the doctor about these symptoms.   If there is a nurse case manager that is present at doctors’ visits, you might want to ask the nurse to allow you to speak to the doctor privately about a symptom that is bothering you.   You have the right to see the doctor alone.  Unless you speak up and tell your doctor who is treating your spinal injury about theses problems, nothing Will be done to investigate and find the right treatment.  

Once you do discuss the  problem, your spine doctor may want to refer you to a urologist for testing, or to your own primary care doctor to rule out other possible  non-industrial causes for your complaints.    Adjusters will usually pay for consultations to determine the cause of the problem if your spine doctor makes the request for a  consultation.  If it’s found that the spinal cord injury isn’t the cause, at least you will know what you need to do to treat the problem. 

If there is a direct causal connection between your work injury and loss of bladder or bowel control, or sexual dysfunction, your  permanent partial disability  (PPD) award could be significantly increased when you are rated under the AMA Guides to Evaluation of Impairment, Fifth edition.  The injured worker must be vigilant about having these impairments included in the rating.

I caution all injured workers to look carefully at the physician progress report (PPR) they are handed at the end of each  visit to their doctor assigned to treat their industrial injury.  Most doctors and clinics that are on the various third-party administrators’ medical provider lists use the D-39 form approved by the DIR.    Sometimes the clinic or doctor will use a form that looks different, but all PPR’s used by Nevada medical providers must show whether the doctor is taking the patient off work completely, or is giving work restrictions until the next scheduled appointment. 

If the doctor does not hand you a PPR showing you what your work status is, ask for  a copy  before you leave the doctor’s office.  It is important that you get a copy of the PPR so that you know for certain whether the doctor has released you to return to work, and if so, whether you have work restrictions.  If the doctor’s assistant tells you that you don’t need a copy, and that they will fax a copy to your insurer and your employer, nicely explain that you are entitled to your own copy. 

Unfortunately, there are a few doctors on the Nevada provider lists that take a cowardly and unprofessional approach to releasing workers’ compensation  patients back to work.  Instead of explaining to the patient that the doctor thinks it’s time to return the patient to work, or to any available light duty job, the doctor says nothing when in the examining room with the patient.  If the patient doesn’t get a copy of the physician’s progress report, and the doctor didn’t discuss work  release status, the patient only learns about what his doctor has done when he doesn’t get his next  compensation check in the mail. 

These doctors shirk their responsibility to their patients because they want to avoid an argument from the patient.  The doctor may have good reason for changing the patient’s work status, and if so, the doctor should be willing to discuss the reason with the patient.  Otherwise, It is extremely unfair and bad medical care not to inform the patient of his changed work status.

If this has happened to you, or you suspect that your doctor may not be up front with you later, be aware that you have an absolute right to change physicians within the first 90 days of your claim.  After 90 days you may still request it, but it will be harder if the insurer denies your request and you have to go to hearing. It is also very hard to change doctors after a doctor has just performed surgery on you. Just don’t ignore your gut feeling that your doctor is not concerned with your well-being and at least get a free legal consultation to discuss what you can do to protect yourself.  Finally, please help other injured workers learn about their rights regarding choice of physicians by sharing this resource and the DIR’s website information.   

 Each year the WCS Medical Unit of the Division of Industrial Relations (DIR) updates the Medical Fee Schedule that determines the fees for medical services, including impairment evaluations.  Effective February 1, 2012, the current 138 authorized rating doctors may charge $693.31 for up to two body parts.  $231.54  is chargeable for each  additional body part.  For example, an injured worker with an injury to his neck, his low back, and to his left shoulder has  three injured body parts. A rating exam of all three injured body parts would cost $924.85.

An injured worker has the right to obtain a second rating if he disagrees with the percentage determined by the initial rating doctor.  However ,the cost of a second rating must be paid up front by the injured worker.  Whether it makes sense economically to pay for a second rating, or whether a less costly rating review based only on the medical records  is a better tactical move is a decision for experienced legal counsel.  Sometimes it is possible to convince a hearing officer to order the insurer to pay for a second rating exam without having a second rating evaluation.   An injured worker, or her attorney, must be very knowledgeable about how percentages are determined under the AMA Guides before paying for a second rating.  This office will review a rating report for free to help injured workers determine whether to accept the PPD offered, or to contest the percentage.

The problem with the Internet articles I see on many sites that look like they provide good information for injured workers is that the content is not specific to Nevada workers’ compensation law.  Each state has its own laws that determine work comp benefits. If information is not specific to Nevada law, then injured workers in Nevada will be misinformed.  Injured workers may think that they are getting state-specific information just because they click on a particular state.  However, despite the professional appearance of these websites, they rarely provide timely information on Nevada laws and claims practices.  

When you are surfing the web,  check whether the article or blog post is authored by a Nevada lawyer.  Many companies that market search engine optimization for law firms sell  canned articles that lawyers can post as their own on their websites, blogs, or twitter accounts.  The ethics of an attorney doing this is questioned by Kevin O’Keefe, founder of the Lexblog company that provides a publishing platform for my law blog.  Lexblog  has never tried to sell me blog posts written by their company marketing agents. What Internet marketing agent  is going to know more about Nevada workers’ compensation law than I do?  Be careful that what you are reading on the Internet is from a reputable Nevada attorney .

1. Going along with bad medical care

You don’t have to accept substandard medical care just because you were injured at work. It is hard to correct a botched surgery.  If you feel reluctant or have a gut feeling that the surgeon the insurer has assigned to you isn’t very good or isn’t listening to you, change doctors.  You have the absolute right within the first 90 days of your claim to change to a different doctor on the insurer’s provider list.  And even after the first 90 days, you may still request a different doctor.  Make your request for the provider list in writing, and make your request to change doctors in writing.

2. Getting unreliable information about the claims process 

Instead of relying on friends and co-workers to educate yourself about the Nevada claims process, why not read the blog posts I’ve written on almost every topic concerning Nevada  workers’ compensation claims?  If you want to research the law yourself, in addition to reading the statutes (NRS 616 and 617), and the regulations (NAC 616-617), you must be familiar with Nevada Supreme Court decisions  interpreting the law.  You must also know about the actual practice of the hearings and appeals officers to have some idea of what appeals officers, the district court judges, and Nevada Supreme Court justices are likely to do in your case.    Take advantage of a free consultation with a reputable attorney.

3. Accepting a PPD award when  you want more medical treatment

Even if you don’t elect to receive your permanent partial disability  (PPD) award in a lump sum, and the insurer is paying your PPD award  in  installments, you must appeal claim closure if  you want more medical treatment.  First ask the adjuster whether he or she will allow you to return to the last treating doctor for more treatment.  If not, then go to any rating exam the insurer schedules  so that your benefits aren’t suspended.  Also, you must file an appeal.  You will have to get a report from your private physician to  show the hearings officer that you need treatment.  Don’t wait, thinking that you can easily reopen your claim later.  It’s hard to reopen claims.

4. Waiting to add other injured body parts

Remember that you can’t reopen a claim to get treatment for an injured body part if it was never accepted before the claim was closed.   If your claim acceptance letter only references some of your injuries, notify the adjuster in writing.  Ask  the adjuster to at least allow your doctor to examine your other injuries before the adjuster outright denies these  injuries to other body parts. File an appeal on time (within 70 days) of any letter the adjuster sends denying injuries to other body parts. You may also need to go to your own doctor using your health insurance if other injured body parts are denied.

5. Not planning for your vocational future

Be realistic and honest with yourself and your doctor when discussing whether you are going to be able to return to your job at a later date.  If you know or think you might not be able to return to your usual occupation, try to find out now whether your employer is likely to offer you a permanent modified job or not.  If you or a family member is dependent on the  health insurance your employer provides, then you must start being creative and persistent now in persuading your employer to keep you despite any permanent physical work restrictions.  Your employer does not have to find you permanent light duty work.  Alternatively, start thinking about retraining programs and start visiting schools that have 9 to 18-month vocational programs.