Workers' Compensation Attorney

Part A

The NCCI is an organization that keeps statistics on work injuries in the various states.  A recently released  August 2011 NCCI Research Brief by Lipton, Laws and Li  focused on prescription costs.  According to this study,  prescription drugs are 19% of the medical costs on an average claim.   The study showed that it was not the price of drugs that was responsible for increased prescription costs.  Instead, increased drug costs were attributable to doctors prescribing more drugs and more expensive drugs. Also responsible was the growing  trend in many states by treating doctors to sell prescription drugs in their offices.  Additionally, the study also found that physicians who sold drugs in their office were charging more for drugs than local pharmacies, 

This trend, which is particularly popular with California physicians,  hasn’t caught on in Nevada yet,  According to NCCI’s statistics, Nevada presently has lower prescription costs per medical claim than most other states, and relatively few doctors in Nevada sell the drugs they prescribe.  

The NCCI study did not suggest that doctors were doing anything wrong by selling prescription drugs to patients, or that they were wrong in selling drugs at prices higher than pharmacies. The study mentioned why  pharmacies are able to sell drugs at lower prices, and the study suggested that some doctors wanted to dispense small amounts of drugs for the benefit and convenience of their patients. The study listed wanting to make more money as a reason doctors were now dispensing prescriptions.  However, the study did not fully explore the subject of physician profits from this practice. 

The negotiated fees paid to doctors for their treatment of injured workers on Nevada claims seems ridiculously low to me. Unfortunately, some physicians try to make up for low rates by scheduling more and more  patients in a day.   In Nevada, most insurers won’t keep a physician on their provider list unless the physician agrees to accept less than what the Nevada fee schedule allows. I wonder whether the profit margins earned by Nevada physicians  on workers’ compensation claims will cause them  to start selling  prescription drugs to their patients.  

The NCCI study didn’t delve into the ethics of physicians establishing  a secondary profit center at their offices selling prescribed medication to patients.  I haven’t researched  this topic, so  I don’t know whether there are existing rules or regulations that govern the conduct of physicians who do this.  It just doesn’t seem  right to me, though. The study also found that doctors were prescribing more drugs and more expensive drugs.   Even if the physician is completely ethical, won’t  patients wonder whether the physician is prescribing a particular medication just for the purpose of selling it?   Maybe I’ve been lucky with the physicians I’ve seen in La’s Vegas for my own health care.  Many have given me free samples of prescribed medications so that  I could  avoid or reduce prescription costs.

For me, the NCCI Prescription Drug Study, 2011 Update, raised many questions about the future role of physicians on workers’ compensation claims.  If Nevada physicians join the trend in dispensing prescriptions form their offices, it is likely that medical costs on the claim will increase.  Injured workers do not have to pay for prescriptions on an open, accepted claim in Nevada.  However, if claims costs increase for insurers,  insurers will be looking for ways to save money.  That could mean  rushing the injured worker  through second-rate medical care, denying authorizations for diagnostics or treatment, or trying to short-change the claimant on his PPD award or his vocational program.

Stay tuned for Part B on Prescription Drugs and how to handle problems obtaining necessary prescriptions on your claim.  Meanwhile, I would like to hear your opinions on the subject of physicians selling prescription drugs that they prescribe. 

Delays in getting medical care authorized are the reason most injured workers contact me for help on their claim.  Here is some additional information about treatment delays and what  you can do to get proper medical care on time on your  Nevada workers’ compensation claim.  

• An insurer won’t authorize expensive tests like MRI’s or EMG/nerve conduction studies until the insurer decides to accept your claim.  The adjuster has 30 days to accept or deny the claim.   If the claim is denied, no tests or further treatment will be authorized.
• Prior authorization must be sent by your treating doctor to the adjuster for diagnostic tests (other than in-office x-rays), physical therapy, consultations with other doctors, or for surgical procedures. 
• The adjuster has 5 working days to respond to a doctor’s request for authorization pursuant to NRS 616.157.
• Insurers can delay treatment or tests by scheduling an injured worker for a consultation or an independent medical exam with a doctor chosen by the adjuster.  The adjuster can suspend your benefits for non-cooperation if you don’t attend this appointment.  NRS 616C.140.
• The insurer can delay authorizing treatment or diagnostic testing until the requesting doctor  provides the adjuster with his dictated medical report.
• The insurer might have a medical review done of the request.
•  An adjuster should copy you on any denial of the requested treatment or test. and give appeal rights instead of just notifying the doctor of the denial.  NAC 616C.091(3).
•   If you moved outside of Nevada, the insurer won’t  authorize medical care with an out-of-state doctor until the insurer is sure that the doctor will accept what the Nevada medical fee schedule allows for office visits and treatment. 
•  
•  What you can do:

1. Make sure that your doctor faxed the request for prior authorization to the adjuster.
2. If the adjuster hasn’t acted within 5 working days, and doesn’t give you a reason for the delay, you may file a complaint with the DIR, with a copy to the adjuster. Some adjusters will then respond, not wanting to deal with a DIR investigation. See NAC 616C.092. 
3.   File an appeal if you have requested a transfer of doctors or some particular treatment. File appeals of any medical review doctor’s opinion denying the requested treatment or test.    You may appeal an insurer’s failure to respond to your written request after 30 days.
4.  You may ask your doctor for help by having him talk to the adjuster to explain why treatment or testing is necessary.
5.  Make sure that your out-of-state doctor will accept the Nevada fee schedule before you ask the adjuster to allow treatment with that doctor.
6.  Get legal help if there are delays that  prevent you from getting the medical care you need now for all of your injuries.  Most attorneys do not charge for an initial consultation.

The recent edition of "In Business"  magazine reports that the world’s largest solar eneregy project located near Primm is providing 480 laborer  psotions on site, and that 10 to 15% of the workers come from Clark County.    In addition to union labor, who must come from’San Berardino County first,,there will also be  about 220 executive  and other positions.  At  its peak, the  project will employ about 1,400 construction workers such as carpenters, desertt biologists, engineers, and others. 

That same magazine discussed current  projections that over the next five years, McCarran International Airport will be among the nations’ fastest -growing airports. Components to attract growth include stratgies to attract international travel from and to Canada, Mexico, and Latin America.

45% of of those respnding to a poll done the last week in August 2011 statted that they expdected thier business to make a profit this year.  11% weren’t sure, and 43% didn’t know whether they would be profitable in 2011. 

 There’s good news and bad news.  The good news is that effective July 1, 2011, the mileage reimbursement rate for using your car to go to and from doctors and physical therapists visits increased from 51 cents per mile to 55.5 cents per mile.  Injured workers must have traveled more than 20 miles one way for medical care, or alternatively, have traveled a total of 40 miles or more during a week time period to qualify for reimbursement. (NAC 616C.150.) Use a mileage reimbursement form to send to your adjuster (or forward it to my office if you are already a client and we will take care of it for you). Don’t wait until the end of your claim to turn in these forms. They must be sent in within 60 days of your qualifying trips.

The bad news for injured workers is that the state’s maximum average monthly wage for injuries occuring after July 1, 2011 has been decreased slightly again for the second year in a row.   This is the figure that is used to calculate lost time compensation benefits and the permanent partial disabilit award.  The most an injured worker can collect for being disabled each month on new claims is $3,434.38. That means that if an injured worker is making high wages at the time of her accident after July 1, 2011,  she will get far less than 2/3 of her average monthly wage if she is off work and entitled to temporary total disability benefits.  Her final award for a permanent impairment will be less also. 

Tip  If you aren’t receiving maximum compensation benefits, but think you should be, take advantage of a free consultation with an attorney to review the average monthly wage calculation on your claim.  You must do this before you accept a PPD award.

Most industrial insurers will schedule injured workers for a second opinion before authorizing an orthopedic surgeon or a neurosurgeon’s request to do a spinal fusion.  It is a good idea, even if the insurer isn’t requiring it, to get a second opinion on whether a spinal fusion is the best treatment for you.  Many injured workers  immediately agree with their treating physician’s recommendation for a fusion because they are still in pain after physical therapy and a course of medication, or because  injections didn’t work.  A fusion surgery is not something that should be done simply because a patient is still in pain and the doctor doesn’t know else to do.  It should be done only after careful consideration of all treatment options and only if there are clear-cut objective indications for this surgery.

Some injured workers mistakenly believe that that their benefits will be terminated if they don’t agree to have surgery. An adjuster cannot terminate benefits solely because a claimant decides not to have a surgery.    The adjuster may close a claim  because the doctor has exhausted all treatment options.    The adjuster will  not  let a claim remain open indefinitely while  a claimant takes months to decide whether to have surgery or not.  However, most adjusters will agree to allow a second opinion if the adjuster hasn’t already decided to get one.

If you feel that you are being pressured into making a rushed decision on having a spinal fusion by your treating doctor, discuss this with the adjuster and request that he schedule a second surgical consultation.  Remember that you may request a copy of the insurer’s provider list to see what other spine surgeons are on the the insurer’s provider list.  Do some research so that you are informed about the surgeons before you request a particular one, or before the insurer chooses a second opinion physician for you. 

Today, I spent an informative afternoon touring The Learning Center with owner Linda Montgomery.  Linda founded this IT  technical training center 26 years ago. Her  impressive facility, housing over 250 computers,  has been located for 3 years at 777 N. Rainbow, just past U.S. 95.  TLC provides IT certification training to many of Nevada’s largest corporations  who need staff training.  TLC also provides training for many government employees, including computer security training for the armed services.  Individual vocational retraining is also provided  for veterans, people looking for a new career, and for injured workers entitled to vocational rehabilitation benefits on their accepted workers’ compensation claims.

Linda shared her detailed research with me regarding the expected employment outlook for various IT careers.  She is particularly excited about two certification programs the center offers in career fields with exceptional growth predicted in the Las Vegas employment market:  Green IT, and Health care IT. 

Green IT is a career field focused on saving employers energy dollars and reducing toxic emissions from IT equipment.  (I wasn’t aware that all our computers release as much toxin into the environment as the aviation industry.)  The Computer Support Specialist in Health care IT is a 200 hour certification course that can be completed in six months.   Given the current mandate that doctors’ offices and other health care facilities update their IT systems, this should be a very promising career field for injured workers. As with many of the certification courses offered, Linda recommends that the student also complete an internship so that the student is job-ready, with experience to offer potential employers.  

TLC’s  corporate clients  are a valuable source of job leads for students. TLC provides job placement assistance.  With  heavy emphasis on practical employment skills, job placement  efforts actually begin at enrollment   Linda told me that her students are carefully monitored to assure that each student not only obtains timely certification, but that each student is a competitive job candidate for employers hiring locally. Linda promised me that she will personally oversee the retraining program of any injured workers who choose an IT certification career at TLC.  For more information, please contact Linda Montgomery at (702) 320-8885, or visit the school’s website.

If you manage to jump through the hoops to finally get your claim reopened for more treatment, what’s next?  (If you are still having trouble reopening your claim, please click here for help in reopening your claim.)

1. Send the insurer the bill for the doctor’s exam and report that was used to reopen your claim.  As with all communications to the insurer, make sure that you keep a copy of the bill and the letter you send requesting reimbursement.

2. Request treatment with a doctor on the insurer’s provider list.   If the doctor you used to reopen your claim is not on the insurer’s provider list, then you will need to select one who is on the provider list to treat you.

3. Benefits are paid retroactively to the date the claim is reopened.  If you are unable to work, you must ask your doctor for an off- work slip in order to obtain compensation benefits.  The insurer will not pay you for any time you were unable to work before you requested reopening of your claim.

4. If you were receiving a PPD installment check, those installments will stop if you are entitled to receive TTD checks now that your claim is reopened.  The law does not allow you to receive a TTD check and PPD simultaneously.  If you received a lump sum PPD check, a small amount of money will be deducted from your current TTD check as an offset.

5. You may be entitled to another rating evaluation when you are done with treatment again.   If your treating doctor states that you have a ratable impairment when you conclude treatment after your claim has been reopened, you may be rated again.  If you have a percentage of impairment that is greater than what you have already received, you will be awarded the difference.

See attached video for a great explanation of how someone with CRPS (complex regional pain syndrome) experiences pain.

http://www.ted.com/talks/elliot_krane_the_mystery_of_chronic_pain.html

I receive many calls from injured workers who want me to take their case after they lost their case at the appeals officer level.  Unfortunately, neither I, nor any of the more experienced workers’ compensation attorneys, will agree to take over a case after  the appeals officer hearing. Here’s why you won’t be able to find a lawyer to take your case on a petition for judicial review to the district court level, or why your NAIW attorney might refuses to to file a petition after representing you at the appeals officer hearing.

Almost all  contested work comp cases involving denied claims depend on whether the appeals officer thinks the injured worker is truthful about how an accident or injury happened.   Many other appealed  cases involve medical care, and they depend on whether the injured worker has favorable medical reporting from doctors. Only a very few cases involve purely legal issues that only lawyers find interesting.  Only those few cases involving just legal questions can be reversed by a district court judge.

Nevada law requires that district court judges accept the appeals officer’s findings about whether you or your witnesses were believable or not. The district court must also accept an appeals officer’s decision based on which doctors’ opinions are more convincing. That means that the last real opportunity an injured worker has to win a case is when the case is heard by the appeals officer.  If your attorney can’t find a favorable witness, or doesn’t realize the appeals officer thinks your doctor didn’t adequately write about your need for more medical care, or you weren’t prepared for the tough questions the insurer’s attorney asked you on cross-examination, there is little that can be done after  the hearing is over.

A district court judge (with rare exceptions) is not supposed to accept new evidence.  You can’t argue to the judge  that you didn’t have money to go see an independent doctor to get a new report until after the appeals officer hearing.  Nor can you argue that you didn’t expect the employer’s witnesses to lie and therefore didn’t bring in your own witnesses to tell the appeals officer what really happened on the day you were injured.  You, and your attorney, must be fully prepared to present the best possible case when your case is decided by the appeals officer.   For many injured workers, that means relying on their appointed NAIW attorney.  

NAIW attorneys are excellent attorneys who take their jobs very seriously.  When I was an appeals officer I had to decide many cases presented by NAIW attorneys, and when I was the attorney for the SIIS, the NAIW was trying cases against me.  I therefore have nothing bad to say about NAIW attorneys.  If anything, they are overworked and underpaid for what they do.   I simply want to caution injured workers that if they feel they want a different attorney than their assigned one because their case requires more work than the typical case for example, they need to shop around before  the case goes to the appeals officer hearing.   A district court judge will not give you another chance to present your case because you didn’t like your assigned NAIW attorney or don’t think he or she had enough time to prepare your case.

The penalties for employers who fail to purchase workers’ compensation insurance are high if they get caught, but as the economy continues to tank, more employers are going bare.  If  you are injured on the job and then discover that your employer doesn’t have a workers’ compensation policy in effect, do the following:

1.  Complete a Claim for Compensation form (C-4 form) the same way you would for an insured work-related injury at a medical clinic or emergency room if necessary.

2. If you do not have a private attorney to help you, go to the Division of Industrial Relations to complete the forms to elect to receive workers compensation benefits under the Uninsured Employers’ Claim Account.   The DIR will contact your employer and decide whether or not  you were in fact an employee that should have been insured.  That is the only issue DIR decides.  If DIR decides that you satisfy the legal definition of employee,  then DIR will assign the claim to a third-party administrator to handle the claim.   If you were paid cash only and there is no documentary proof that you were an employee on the day you were injured, you may have difficulty showing that you were an employee.  The address for the DIR in Las Vegas is 1301 N. Green Valley Parkway, Ste. 200.  Phone is (702) 486-9080.

3. The third-party administrator who will be handling uninsured claims for the next three years until June 2013 is Sierra Nevada Administrators, Inc.   That company will handle the assigned claim as if it were an insured claim, first making a determination whether it should be accepted or denied.  If it is accepted, then the benefits payable will be the same as if  the employer had insurance.  Because the claim must first go to DIR to decide whether or not you are an employee, it takes much longer to get a claim accepted.  The injured worker should therefore get the paperwork done quickly at DIR so that benefit checks and medical care aren’t delayed.