Workers' Compensation Attorney

Nevadans have  been convinced over the years that there are many workers who try to take advantage of the system, either by filing false claims or by prolonging their time off work, or by collecting undeserved permanent partial disability awards.   What the public in Nevada rarely  hears or reads about however, are the employers caught committing  workers’ compensation fraud, or the insurers who intentionally fail to pay legitimate claims.   This type of fraud may be far more prevalent than fraud by employees. 

In October, 2011, a national, non-profit group of mostly claimants’ attorneys, the Workers Injury Law and Advocacy Group  (WILG), published a paper entitled "Employer and Insurer Fraud:  Boosting Bottom Line profits at the Expense of Workers and Society".   The premise of the report is that workers’ comp insurers and their administrators have successfully misinformed the public and elected lawmakers that employee fraud costs the insurance industry more money than employer or insurer fraud in uncollected taxes and uncollected premiums.   WILG states that the insurance industry writes or funds most of the reports on workers’ comp fraud, and therefore wants the public to believe that injured worker fraud is rampant.  Insurers are able to charge higher premiums  and advocate for legislative changes to reduce compensation benefits to injured workers if the public is convinced that injured workers are defrauding the system. 

WILG states that the actual statistics show that both employer and insurer fraud are a far greater problem, involving much larger sums of money, than fraud by injured workers . The statistics on the number of employers who are caught misclassifying employees to pay a lower premium or to avoid paying a premium at all are usually based on employer audits conducted by state agencies that oversee each state’s workers’ compensation system.   Less than 2% of Nevada employers were audited in Nevada in 2010 according the WILG report.

In an effort to obtain unbiased information on whether employer or employee fraud is the greater problem in Nevada, I contacted Jennifer Lopez, Public Information Officer, of the Nevada Attorney General’s Office.   I asked Ms. Lopez for figures on injured workers who were prosecuted for fraud, and statistics on employers who were prosecuted for under-reporting premiums or misclassifying employees. The Nevada Attorney General’s Office is statutorily responsible for prosecuting both injured worker fraud and employer fraud under the Nevada Industrial Insurance Act. 

Ms. Lopez explained that in order to prove injured worker fraud, it is more difficult for a prosecutor to prove beyond a reasonable doubt that the employee criminally intended to cheat the insurer or self-insured employer of undeserved benefits.  For fiscal year 2011 (7/1/10 through 6/30/11), only 19 of the 93 cases that were investigated were prosecuted. In contrast,  during fiscal year 2011, the Nevada Attorney General’s Office opened 246 employer cases for investigation, and prosecuted 142 of those employers. 

Ms. Lopez noted that employer cases are usually misdemeanor offenses that involve less than $250 pertaining to employee misclassification or under-reporting of payroll.  She emphasized  that it is easier to prove employer fraud using the national insurance database information.   Ms. Lopez did not elaborate on how many employer cases involved misdemeanors versus felonies.

Given the different standards of proof applicable to prosecuting employee fraud versus employer fraud,  I’m not reaching any conclusions as to which type of fraud is the greater problem in Nevada based only on statistics from the Nevada A. G.’s  Office on the the number of each cases prosecuted.  

As I was gathering this information from the Nevada AG’s Office and looking at various reports from both insurance industry groups and injured worker advocacy groups, I read a recent  Fox News 5  article about the Nevada AG’s prosecution of a Maryland woman for workers’ compensation fraud in Nevada.   Nevada Attorney General Catherine Cortez Masto was quoted as saying, "Workers’ compensation fraud is insidious.  It quietly drives up the cost of coverage, a bill that nearly every employer in every sector will have to foot, " said Attorney General Masto.  "My office will continue to aggressively prosecute these cases." 

I don’t think the statistics from Attorney General Masto’s office support her comment that workers’ compensation fraud in Nevada, at least by injured workers, is insidious.  Over 58,000 claims were filed in fiscal year 2009 according to Nevada’s DIR Research and Analysis Supervisor, and the  U.S. Bureau of Labor’s website shows that 42,300 Nevada claims were filed in fiscal year 2010.  If less than 100 cases of possible fraud by employees are referred to the Nevada Attorney General’s Office each year, and less than 20% of those cases are prosecuted, I don’t know what information Ms. Masto was relying upon.  

It makes for more interesting reading in the media to hear about someone getting caught red-handed on surveillance video faking an injury than it is to read about an employer not paying premiums on undocumented workers,  or employers claiming that workers are independent contractors when they are really employees.  I think it is unfortunate that we don’t have a true picture of the extent to which employee or employer fraud costs all Nevadans.  Exaggerating what information we do have doesn’t help.

I’ve had a couple clients referred by local neurosurgeons to a particular physical therapist who is certified in  the McKenzie’s Protocol, and I decided to investigate this personally.  I’ve got  chronic neck pain from various horse-related accidents over the years, and am always searching for ways to increase my range of motion.  I also want to decrease the pain and stiffness that extends from neck into the right scapula.  Being able to turn my neck better is essential for my riding, as well as  my driving. 

I know that long hours seated in front of the computer adds to the problem, and the older I get, the more important it is to get up every half hour, stretch and walk around a bit.  But stretching on my own, and even the addition of a weekly yoga class hasn’t been enough since I re-injured my neck in Ireland during an unlucky fall from a horse.  I also added a massage from a highly trained masseuse once a month to keep my back and neck more mobile and comfortable, but that also is not enough.

I made an appointment with the certified McKenzie evaluator and therapist two weeks ago, and  I had a second appointment last  week.  The McKenzie Method  (sometimes called the McKenzie Protocol is described in detail in several books written by founder Robin McKenzie back in the early 1980’s.    Robin McKenzie’s is a physiotherapist from New  Zealand who developed his own treatment methods for spinal disorders.  I purchased two of his books, Treat Your Own Neck, and  7 Steps to a Pain-Free Life: How to Rapidly Relieve Back and Neck Pain.   These  books, available at Amazon.com, are easy to read.  If you need to borrow my copies and promise to return them, call my office and ask  my assistant to send me reminders to bring the book to the office for you.

The first book states that it is meant for people with straightforward recurring mechanical problems, and that self-treatment exercises taught by a certified therapist are the key to maintaining neck pain.  I do think it is important to invest in at least a couple of sessions with a certified therapist to make sure that the exercises are safe and right for you.  The therapist will also want your doctor to prescribe this particular therapy for you (and to get your insurance to cover the sessions if you no longer have an open claim.)

McKenzie emphasizes that there are two types of stresses that can occur to cause neck pain:  1) an accident that results in overstretching of the ligaments and other soft tissue that hold the cervical vertebra together from an outside force, and 2) overstretching caused by postural stresses that place less severe strains on the neck over longer time periods.  It is this second type of stress, the one that we exert on our self that can be self-treated for the prevention of neck pain. 

Examples of the exercises in the book prescribed for me by the McKenzie therapist include retracting the neck back into the chin, extending the neck backwards, side bending of the neck, and laying on an examining table with the neck extended off the edge of the table.    While the book walks the reader through the exercises, and they are very simple, I strongly advise that you first have a certified McKenzie therapist walk you through them.

After the first week of doing neck retraction exercises, I had increased neck pain and even less mobility from placing my neck in very different positions  After the second session, the neck pain was improved, and I had a little less pain, but range of motion was still very limited.   Then, I miraculously got better about remembering to do the exercises the prescribed  5 times a day.  I also became more aware of my posture as I sat at my computer.  I also remembered to pick up a new bedside lamp at Home Depot so that I had better light as I continued my bad habit of reading in bed late at night.  In other words, I started to take some personal responsibility for making my neck better instead of simply whining about it.

Today, I’m back at work, in front of the computer, but I don’t have pain extending into the right shoulder and scapula for the first time in months.  The neck pain is lessened, although I still hear a lot of snap,crackle and pop when I go through the range of motion checks.   Whether the improvement is due to these particular exercises, my remembering to actually do some stretching and exercises, or a wonderful, relaxing Christmas with my friends and family, I really don’t know.   But, I intend to give these exercises a good try, and will return to see the therapist tomorrow. 

I remain optimistic that this therapy will also keep my clients off  the operating table.  The number of injured workers who tell me  they "want to be fixed" by a surgery  concerns me.  While I’m not a doctor, I see many people with chronic neck and back pain that might be able to significantly help themselves manage their pain with some guided, concerted effort on their part .  Exercises require consistent effort (although these are very easy ones).  This isn’t a quick fix, but it might be a huge relief once I train myself to do them daily.   I will keep you posted.  Feel free to post a comment if you have experience with the McKenzie Method exercises. 

According to the U.S. Bureau of Labor Statistics, in 2010, about a fifth of all  workplace fatalities in Nevada were caused by a worker falling. Almost every serious fall injury  I’ve handled in the Nevada work comp arena in the past fifteen years was caused  either by the employer’s obvious  failure to follow safe work practices, or the employee’s own unsafe actions.    

Contrary to what most non-attorneys think, whose fault caused the injured worker to fall isn’t  supposed to determine whether a workers’ compensation claim is accepted or denied.  However, a recent  2011 unpublished decision from the Nevada Supreme Court has me worried that the current justices want to allow employers and insurers to use  fault by the injured worker to deny claims.  I hope that I’m wrong, and that  the Nevada Supreme Court’s Order of Reversal and Remand in Fitzgerald’s Casino/Hotel  v. Mogg, No. 55818 (11/18/11) isn’t  a major attitude shift against injured workers.

Under Nevada work comp law, injured workers are entitled to medical care, benefits payable at two-thirds of their wages when off work, an award for most permanent injuries, retraining if necessary, and lifetime reopening rights for serious injuries.  Nevada law states in NRS 616C.150(1) that a claim is compensable if the employee’s accident and resulting injuries arise out of and in the course and scope of the employment.

It has always been a key component to Nevada’s workers compensation system that in exchange for purchasing workers’ comp insurance, an employer cannot be sued for work-related injuries  to employees, even if the employer’s negligence causes the injury.  The trade-off for the employee not being able to sue the  employer is the  employee’s  entitlement to benefits,  even if the employee causes his own accident.  The underlying premise behind these trade-offs is that the statutory  benefits for injured workers will be borne by industrial insurance purchased by employers,  the cost of which will  ultimately be spread  to consumers and society.  This is called the exclusive remedy doctrine, and is codified at NRS 616A.020.

Nevada law  states that because workers cannot sue their employers who comply with the law by purchasing workers’ comp insurance, the employer cannot assert common law defenses to a a claim.  In other words, the employer cannot defeat an employee’s worker’s comp claim by arguing that the employee was contributory negligent in causing his own accident and injuries.  Two notable exceptions are laws that exclude self-inflicted injuries, and  injuries caused by the employee’s intoxication. Otherwise, an employee’s own fault in causing his accident is not  supposed to be a valid reason to deny his claim. 

The justices discussion in the Fitzgerald v. Mogg case however, comes dangerously close to introducing the idea that an employee’s simple failure to follow an unwritten rule at work  can be used to deny his claim.  Mogg was employed as a security officer who monitored the surveillance cameras in the casino’s  eye in the sky.  When he went to put his feet up on a desk while working, his chair fell over and he was injured.  An appeals officer ruled that the injury was compensablle, but the Nevada Supreme Court reversed and remanded the case back to the appeals officer  for further findings.

The court referenced a case they had recently decided  involving a casino employee’s fall on back stairs to an  employee break room.     In Rio All Suite Hotel v. Phillips, 126 Nev. Adv. Op. 34 (2010),  a poker dealer  twisted her ankle for some unknown reason while descending stairs to the employee break room.   The Court applied an increased risk test  to this unexplained fall to determine whether the injury "arose out of " employment.   The Court noted that the dealer was required to use these stairs more frequently than  the general public, and that they were the only stairs to the employee break room. The dealer’s risk of injury was therefore greater than the general public risk of injury on these particular stairs, so the claim was considered in the course and scope of employment.

In Mogg’s case, the appeals officer neglected to make findings that Mogg was at increased risk of falling at work from a chair that wasn’t defective.  If Mogg wasn’t put at increased risk (due to long hours of watching security cameras), then his claim would not be considered  work-related.

The court also wanted the appeals officer to make findings whether Mogg’s injury came within the  the personal comfort doctrine.   That legal theory says that an injury is work-related if it happens when an employee is injured while  engaging in reasonable personal comfort activities,  such as going to the restroom.  Mogg’s employer didn’t have a written policy against employees charged with viewing security monitors all day from  putting their feet on desks, but the employer got statements from other employees that the employer had  an implied prohibition against putting feet on desks.  The employer argued that putting feet on a desk while working was unreasonable, and took the activity outside the course and scope of employment.  The court  didn’t decide that question, and wanted the appeals officer to first clarify whether the employer had an implied prohibition about putting feet on a desks.  If so, Mogg wouldn’t get any medical care or benefits because his conduct was outside the  personal comfort doctrine and therefore not within the course and scope of employment.

Fortunately,  the court’s order is not an official published decision.  The order  cannot be cited as precedent by appeals officers or district court judges as an interpretation of Nevada law.  However, it does tell us how the justices are thinking about injured workers in Nevada.  The court’s discussion has me worried that the court is dangerously close to judicially legislating that employers can deny claims if they can show that an employee was doing something that the employer impliedly prohibited.

Almost all large employers have written and implied safety rules.  If  employers can show that an employee  is doing his job in such a way as to violate a written or an implied safety rule,  almost every claim can be denied as being outside the course and scope of employment   Employers can easily get written statements from supervisors stating that there are implied rules against doing anything unsafe.   What employer won’t come up with an implied prohibition against whatever conduct causes their  employees to get injured?  I’m not sure the court completely considered the effect of allowing employers to argue that there are unwritten, implied rules against innocuous, but slightly unsafe conduct by employees that might cause an accident.

Remember that the flip side of the exclusive remedy rule is that employers cannot be sued for work-related injuries, even if the accident is caused by the employer’s violation of safety rules.  Employees  who are seriously injured by their employers’ fault are only entitled to the specific benefits available to all injured workers under the Nevada Industrial Insurance Act (NRS 616).   The employee cannot sue his employer for any additional money by showing that the  employer was at fault, or that the employer violated safety regulations.

If the court were to officially adopt the analysis it uses in the recent Order in the Fitzgerald v. Mogg case, then employers will be able to circumvent the exclusive remedy rule by showing that the  employee was at  fault for the accident and that the claim should be denied.  The court doesn’t come right out and use the word "fault", but that is what the court is really talking about when it refers to unreasonable conduct that is outside the course and scope of employment.  It isn’t fair if the court is not likely to employ the same legal analysis when an employee is injured by the fault of  an employer who insists that the employee work under unsafe conditions.   Will the court find that unsafe employer-required activity that causes an accident is outside the course and scope of an injured worker’s  employment so as to allow the employee to sue the employer?  I doubt it. The court is more likely to tell an injured  employees that they are limited to workers’ comp benefits even if the employer insisted they do some unreasonable and unsafe activity at work that caused the accident.

The  court’s decision last year in Rio v. Phillips is  more helpful to employees who have injures from unexplained falls than two older cases often relied on by insurers to deny slip and fall claims.  See Mitchell v. Clark County, 121 Nev. Adv. 21 (2003), and Rio  Suite Hotel v. Gorsky, 113 Nev. 600, 939 P.2d 1043 (1997).    Those two older cases were not overruled in the recent Phillips case, however, and injured workers must still prove more than that  their injury happened at  work.  Insurers frequently deny cases involving unexplained falls at work, or falls where the employee cannot remember exactly what happened before he or she fell.  Many of those cases are actually winnable cases when appealed correctly.  An injured worker shouldn’t give up on a denied claim caused by a fall at work  without an experienced legal opinion.  

As I first mentioned, most serious fall injuries can be easily related to either the fault of the employer or fault of the employee.  There really aren’t that many unexplained fall, so   I think the court’s discussion in the unpublished Fitzgerald v. Mogg case is more significant than the published decision in the Rio v. Phillips  case.    The Fitzgerald v. Mogg analysis is unfair to  injured workers because it will  allow employers to use the employee’s own fault  (unreasonable conduct) as a defense to a claim.  This is a fundamental change to Nevada workers’ compensation law, and should instead come the Nevada legislature, if at all.

Just before Thanksgiving, the Nevada Supreme Court published a turkey of a decision that robs injured workers of disability award money.  In Public Agency Compensation Trust v. Blake, 127 Nev. Adv. Op. 77 (2011), the court invalidated a long-standing  DIR regulation that addressed how rating doctors are to account for a prior PPD award for a re injured body part where the prior rating was done under a different edition of the AMA Guides to Evaluation of Permanent Impairment.  

Nevada law currently requires that rating doctors use the 5th edition of the AMA Guides, even though the AMA has published a 6th edition.  This law was championed by advocates and lawyers for injured workers, as the 5th edition generally results in a higher rating for many spinal injuries than other editions of the AMA Guides.

Blake had four work injuries to his back in the 1980’s and  1990’s, and was awarded a 14% permanent partial disability award  (PPD) at his last prior rating in 1995 under the 2nd edition of AMA Guides. (The law in 1995 required rating doctors to use the 2nd edition.)   Blake had a fifth back injury at work in 2004.  He was rated again in 2004 when the 5th edition of the AMA Guides was required in Nevada. The rating doctor properly followed the DIR regulation that told the rating doctor  to subtract the earlier awarded 14%.   The employer appealed, arguing that the regulation wasn’t fair to employers, because the current 5th edition of the AMA Guides would rate the old injury at a greater percentage.  The justices agreed, and held that Blake’s total impairment should be reduced by what  the old injury would rate under the 5th edition.

This decision is wrong in my opinion,  because Blake had his award reduced by a percentage of impairment he never actually received.  He was paid in the past based on 14% impairment.  (The payment amount is determined by using the percentage of impairment, the injured worker’s average monthly wage, and the injured worker’s age when he is rated.)   The court said that instead of subtracting 14% from Blake’s current total impairment of 40%, it would allow the insurer to subtract subtract a 23% for the old back injuries by re-rating the old injuries under the 5th edition.  The net result to Blake was that he lost 9% impairment under this decision.  As the court’s decision does not tell us Blake’s age and how much money he was earning when he was injured, we can only guess how much money the 9% was in his case.  For some injured workers, a 9% loss could mean a loss of up to $45,000.   

The  court reasoned that the law provides that  the employer  should  only pay for any impairment  related to the current injury.  The court had to invalidate a regulation that had been on Nevada’s books for years, and used by DIR and rating doctors when faced with multiple ratings done under different editions of the AMA Guides. Blake, unfortunately, will never be compensated more for his old injury by this re-rating of his old injuries under the  current edition of the AMA Guides.   Only the employer and insurer can use a current edition of the AMA Guides by reducing an injured worker’s net impairment percentage following a recent injury.  

The ink wasn’t dry on this decision when DIR wrote in its Winter newsletter that it will no longer enforce the invalidated regulation when it reviews all impairment evaluations.  DIR only reviews about 10% of the approximately 450 impairment evaluations that are done each month on a statewide basis. This is a confidential review, and claimants should not rely on DIR to correct any rating errors.   Instead,  injured employees must appeal the insurer’s offer based on the incorrect rating and obtain a second PPD evaluation with a physician assigned from the rotating list.  As the appeals process takes time, and a second rating costs $683 currently,  first ask an experienced workers’ compensation attorney whether the first rating looks wrong.  Insurers are often quick  to apportion (subtract from) an injured worker’s PPD if there has been a prior injury or rating.   You can be sure that  employers and insurers will slash many more PPD awards now that the Nevada Supreme Court has provided encouragement by this unfavorable decision.

• Does the following sound familiar?  You’ve checked the mailbox for the third time in an hour.  You finally see the postal carrier  drive down your street,   but  he does not  leave a compensation check in your mailbox.  You wave him down and angrily interrogate him  about whether your check could be lost or stolen.  Your briefly contemplate committing a  federal offense by taking the postman hostage until you get your miserable, but necessary check.  Instead, you stomp back into your house and call your  adjuster for the sixth time.  The adjuster never picks up the phone when you call, so you  leave another pleading message to overnight you a temporary total disability check so that you can pay your bills on time and buy groceries.  

What the heck is up with late and missing checks during the holidays?  It seems that for every  federal holiday without mail delivery, compensation checks are delayed by at least  three days. 

Here’s what to do:

1. Look at the stub that was attached to your last TTD check.  Find what time period was covered by the last comp check, and then look at the date the check was issued.  This will help you determine whether your check is truly late, or whether you were just hoping it would come earlier than usual. Also, make sure that you sent in the request for compensation form or the physician’s progress report that takes you off work, entitling you to another compensation check.

2. If your check is more than two days late, leave a polite phone message, and only one message, with your adjuster.   You want your adjuster to want to help you, and leaving threatening messages only moves your claim to the bottom of the adjuster’s stack of things to do.  Understand that the adjuster may have correctly done her job to have your check processed on time, but that it may not have been mailed on time from a location in another state.

3. If your check is more than three days late, and you get a response from the adjuster that your check was sent on time, you have to decide whether to wait another day or two, or request a stop payment on the old check.  Usually, the check will show up in another day or two.  If you request stop payment and receive the old check before you receive the re-issued check, you may not cash the first check.   Whether you request a stop payment depends on whether you trust the adjuster that the check was in fact mailed on time.

4. Call your creditors to let them know that your compensation check is late, and that your payment will therefore be late.  Even if the creditor is not sympathetic, it is still better to let creditors know of your situation. 

5. Before the next federal holiday, you might send your adjuster a friendly reminder to please process your check a day or two early so that it does not arrive late.

6. If your adjuster is habitually late in sending your checks, keep the envelopes and copies of your check stubs, and attach them to a complaint letter to DIR.

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Work-Related Car Accidents: Do You Need A Personal Injury Lawyer or  A Work Comp Attorney?

Many people have jobs that require that they drive while working, and that means they are at risk for job-related car accidents.   If the accident and injury is caused by the fault of someone who is not your employer or not a co-worker, then in addition to a workers’ compensation claim, you may also have a third-party liability claim.  (The term "third-party" refers to someone who is not a co-employee or not your employer.  Remember that you may not sue your employer or a co-worker for any job-related accident and injury to you.)

If you are injured in a car accident while you are working, you need to follow the ordinary steps for establishing a workers’ compensation claim.  You must notify your employer in writing of your accident and injuries, and most importantly, you must go where your employer directs you to go for initial care and to  complete the Claim for Compensation C-4 form.  It is the C-4 form that starts the workers’ compensation claim process.   You will want to do this even though the person who hit your vehicle was at fault for the accident so that you have immediate medical and compensation benefits available to you under a workers’ compensation claim.

A liability claim involving the insurance company of the person who hit you may take months or years to be resolved.  Liability insurers do not pay on a claim until you are done treating and  you know the full extent of your injuries so that you can  demand for a total settlement.  Additionally, you may not have accurate information about the amount of liability insurance available to pay you, the workers’ comp insurer,  and any other people who were injured in the accident.

Many attorneys who take only personal injury cases are unfamiliar with the workers’ compensation system in Nevada.  Personal injury cases are tried before experienced arbitrators, district court judges, or juries in Nevada, depending on how serious the injuries are and how much money is involved.  Disputed workers’ compensation cases are decided by appointed hearings officers and appeals officers employed by the Department of Administration in min-sized courtrooms on S. Rancho Blvd.

Ideally, any attorney you hire to represent you on your personal injury claim against the person who is at fault for the accident should also  be knowledgeable about Nevada workers’ compensation law.  Too many injured workers  unnecessarily pay for medical bills from the settlement monies they receive from the third party insurance company when these bills could have been paid by the workers’ compensation insurer.  Be sure to ask your personal injury attorney whether you should be going to a doctor who on your workers’ compensation provider list so that the medical bills are not deducted from your personal injury  settlement.

The other big advantage to having a workers’ compensation claim established instead of  just a personal injury claim, is to get paid compensation benefits to support you and your family if you are unable to work.  If you don’t also  have a work comp claim, then you will have to borrow money for your living expenses until you settle or go to court on your personal injury lawsuit.

It is true that if you have a work comp claim also, the work comp carrier is legally entitled to share any  money you receive from the liability insurer .  This is called a subrogation lien.  However, even though the work comp insurer will have a lien, it is still usually better for the injured worker to have both a workers’ comp claim and a personal injury claim.  If you like a particular personal injury attorney, but he or she tells you that they will not be handling the workers’  compensation portion of your claim, ask for a recommendation of a lawyer who is experienced in workers’ comp law.  Get reliable information quickly on the workers’ comp aspect of your claim, as time limits run quickly . It is not unusual for injured workers to have different kinds of attorneys representing injured workers who have work-related car accidents.

 Back injuries, followed closely by shoulder injuries, are the most common job-related injuries for my clients in the nursing field.  Nurses, and those employed as nursing attendants are at high risk for these injuries primarily because they must transfer patients from beds to gurneys or to wheel chairs, or to baths.

A new law in California requires hopsitals to establish a "safe patient handling policy", meaning that lifting devices must be used instead of manually lifting patients and that staff must be trained better.  The Santa Cruz Sentinel.com reported that studies done by hospitals that had already established those policies in 2004 showed that the rate of injuries among nurses dropped 15%.  Handling  overweight patients was a particular concern as the population continues to be more obese.  

Most hopsitals in Nevada have instituted training on how to transfer and move patients using correct body mechanics.   The policy at each hospital may differ on when a nurse is required to use lift equipment.  Prevention of these injuries is certainly the key to reducing  the number of  low back sprains, disc herniations, and back injuries in general that afflict workers in the nursing field.  If your hospital does not have good patient lifting policies, you might want to speak to your supervisor or director to see what can be done to obtain new equipment or to get additional training to  prevent future injury to yourself and your co-workers.

What if you are a nurse and you do hurt your lower back while transferring  a patient?   Follow all of the ordinary steps for filing a claim and getting medical care as directed by your employer.  You should notifiy your nursing director or supervisor immediately in writing if you think you may have hurt your back, even if you don’t think you need to see a doctor right away.    Many times a person may not know how serious the back injury is, thinking that they have a  muscle strain that will feel better in a day or two.  Report the injury anyway on a Notice of Injury form.   The law requires injured workers to report injuries in writing within 7 days of the accident.  

The law also requires that an injured worker obtain medical care within 90 days of the accident and complete the C-4 Claim for Compensation if the worker ever intends to pursue a claim.  After you notify your employer of the incident causing you back pain, make sure that you go to the clinic where your employer directs you for a work-related injury once you realize that you need medical attention.  Be clear on that form about the date you injured your back and how you injured it.  Be as specific as possible about how the accident occurred.  If you only think you might have injured it work, but aren’t sure about how and when you injured it, the claim will be denied.  Remember, there is no claim until you complete the C-4 form at a doctor’s office.

Once the claim is accepted, if your back injury is not getting better following some physical therapy and anti-inflammatories,  I recommend that you request a transfer of care from the intitial clinic to either a physiatrist or a spine specialist on your insurer’s provider list.   You are entitled to ask your adjuster for a copy of the insurer’s provider list so that you may select a physiatrist,  or an orthopedic physician, or a neurrosurgeon.  Most back injuries will heal in time, but if yours requires surgery or is so debilitating that you may not be able to return to your profession in the nursing field, you may want to consider a consultation with an attorney to make sure you know your rights. A  book that provides a good discussion of treatment options for low back injuries is Your Aching Back, by August A. White III, published by Simon and Shuster, and available at www. amazon.com.

If you have a work injury in Nevada you are more likely to become depressed.  If you do need a study to prove that there is a higher incidence of depression among workers with orthopedic injuries, you will be interested in the linked article from  California psychologist Stephen Pfeiffer, Ph.D.,  He cites a study reported in the Annals of General Psychiatry, Dr. Pfeiffer  frequently writes about depression and other  psychological conditions affecting California’s injured workers. 

Unlike Dr. Pfeiffer,  I am not a doctor.  I am a lawyer who represents injured workers.  The following are my Top Ten  non-medical reasons injured workers tell me  why they feel depressed after their job accident:

• They’re hurt and in pain.  That alone makes them unhappy.
•  A supervisor, or co-worker, or their adjuster acts as if they are faking their injury…
• They are worried about whether they will still have a job when they are well again..
• They are getting the run-around from whomever is supposed to be handling their claim.
• They know they aren’t getting good medical care, but don’t know what to do.
• Authorizations for medical care take forever.
• They are worried about how they will make a living if they can’t go back to their line of work. 
• They’re financially behind on bills as a result of late compensation checks, no compensation checks, or inadequate compensation checks.
• They hear stories that they might get a settlement at the end of their claim, but have no idea what to expect, or whether to hope for anything.
•  They are worried about needing medical care in the future if the injury ever worsens after the claim is close.
• They know they need information, but don’t know who to trust for advice.

Depression is serious.  If you are feeling completely overwhelmed or suicidal, please tell your doctor immediately, or call 911 and ask for  the suicide prevention hotline.  While it can be difficult to obtain psychological treatment for depression on a worker’s compensation claim, it  can be done under the right circumstances.  More importantly, many  feelings of helplessness go away once you are armed with knowledge about how the claims process actually works.   If you  feel too lousy to actually meet with a lawyer for a free consultation, at least help call for a free guide so that you have a better understanding of Nevada workers’ compensation law.   

When the adjuster sends you a benefit check if you are out of work due to your work accident, she should also send you a letter telling you how she calculated your average monthly wage (AMW). The AMW is  the amount  used to calculate your out-of-work  compensation benefits and your permanent partial disability award.  The higher the AMW, the greater the compensation  benefits,  and the greater the lump sum PPD award

It is difficult for injured workers to know whether the AMW established by the adjuster for your claim is correct unless you have two pieces of information. First, you need the wage verification form that should have been completed by the employer when requested by the adjuster.  That form asks the employer to list all gross income earned for 84 days before  the date of your accident.  You can ask the adjuster for a copy of the wage verification form and then check the income listed against your paycheck stubs.  Remember to look at your gross wages.  You should request this form in writing from the adjuster, and always keep a copy whenever you make a request.

Secondly, you need to know what the rules are for calculating AMW.  Those rules are contained in NRS 616A.065 (definition of AMW), and in the regulations adopted by the DIR at NAC 616C.420 -NAC 616C.447.  Ordinarily, the insurer will calculate AMW by going back 84 days before the date of the accident and by averaging those gross earnings.  However, if the claimant thinks that he earned more during a year with the same employer, he can ask the adjuster to look at AMW using his  one year earnings history, or his full period of employment .  The adjuster is obligated to use the highest AMW  resulting from the use of those two methods. 

There are several other regulations that address different circumstances where calculating AMW using the two most typical methods will not  be a fair representation of the injured worker’s average monthly wage.  The Nevada Supreme Court just published a new opinion that discusses the regulations that provides that the rate of pay on the date of the accident or the onset of the disease should  be used to calculate the average monthly wage where the employee is promoted to a different job just before the accident.   In  City of North Las Vegas v. Warburton, 127 Nev. Adv. Op. No. 62 (October 5, 2011), a pool lifeguard had just been promoted to  pool manager when she was injured at work.  She hadn’t actually received higher wages based on her new rate of pay yet.  The Court held that her benefits should have been calculated using the rate of pay for the primary job she was working when she was hurt, and that would have been the pool manager position.

If you just changed jobs with the same employer or had just gotten a raise, then you will want to look closely at how the adjuster calculated your average monthly wage.  Keep in mind that there is a maximum average monthly wage that is set by the state each fiscal year, beginning on July 1 annually.  When the adjuster sends a determination letter setting your AMW, usually at the beginning of the claim,  you are given 70 days from the date of that letter to file an appeal (Request for Hearing form with the Department of Administration.)  Even if you did not file an appeal within 70 days of the date of that letter, you may still have the right to contest the AMW if you think that your average monthly wage should be increased.  You may then be entitled to additional retroactive benefits based on the higher AMW, and your PPD award will be greater.

Effective July 1, 1970, the law  (NRS 616C.427),  allows an injured worker to contest the AMW determination even after the 70 days has run if the claim is still open and the injured worker hasn’t received a lump sum PPD award yet.     If you had unusual employment circumstances and you think your AMW was calculated too low, before your claim is closed and before you are rated for impairment, ask a knowledgeable Nevada workers’ compensation attorney to please  review your AMW calculation with you.   The sooner the AMW is corrected, the better.  

The reality is that many injured workers are not offered permanent light duty jobs by their employers after their  treating doctors give them permanent work restrictions that prevent them from going back to their usual jobs.  Employers cannot be forced under Nevada workers’ compensation law to give permanent light duty jobs to injured employees.  Instead, the injured worker is terminated from employment and is assigned a vocational rehabilitation counselor to try to find alternative employment or a formal retraining program.  The injured worker receives bi-weekly checks from the work comp carrier during retraining, but the length of a retraining program that the insurer can authorize may not be sufficient to provide a degree or even a certificate that will ensure employment at a comparable wage.

Many injured workers will simply have to become entrepreneurs and start their own businesses if they hope to ever earn what they were making at their time of their accident.  And those that do try to start a small business will have to be extremely imaginative, self-disciplined, and willing to take advantage of all possible sources of help.  If you are thinking about accepting a vocational rehabilitation lump sum buy-out instead of participating in a formal retraining program, start planning early and be professional about it.  Commit at least two hours a day to researching your business idea and organizing your information.  I often ask clients to show me their notes and research, and most cannot show me anything in writing. Those people will not succeed.  If you cannot write down your thoughts and investigate ideas in an organized manner, forget about going into business for yourself.

For those people who understand that starting  a new business and  then persevering the economic down times means hard work and networking, you will want to check out the NCET Entrepreneur Expo this Friday at October 14, 2011 from 10am – 4 pm at the South Point Hotel.  It is free and open to the public.  Nevada Center for Entrepreneurship and Technology is a non-profit group with excellent resources at www.NCET.org.  Good Luck to you.