Workers' Compensation Attorney

Many injured workers who call me for information about how to reopen their Nevada workers’ compensation claim tell me that they regret "signing off on their claim", and that they wish they had kept their claim open for medical care.  It is true that when an injured worker signs the paperwork to receive a permanent partial disability award (the PPD award) in a lump sum, the injured worker agrees with the closing of the claim, except for any vocational rehabilitation benefits. However, it is a mistake to think that by not signing for a PPD award in a lump sum, the injured worker can prevent the claim from closing medically. 

In order to prevent the claim from closing for medical care, the injured worker must file a request for hearing when the insurer sends a determination letter stating that the claim is closed.  Then after filing this appeal on time (70 days after the insurer’s letter closing the claim), the injured worker must get a doctor to write that additional medical care is necessary.  The insurer would not have closed the claim if the treating physician had not reported that more case isn’t necessary.

A hearing officer will not order the insurer to keep the claim  open  unless the injured worker is able to convince the hearing officer that, contrary to what the treating doctor said, more medical is in fact required. Most hearings officers are not likely to simply take the injured worker’s word that more care is necessary.  That means that the injured worker will probably have to use private insurance or pay  to get a differing medical opinion from another doctor. 

The injured worker should come to the hearing prepared, with a copy of the new medical report for the hearings officer and one for the insurer.  If the new report is persuasive, the hearings officer may then order the insurer to keep the claim while the insurer schedules a visit to a doctor on the insurer’s provider list.

Last week, I had lunch with Dr. Mel Pohl, M.D., the Medical Director of Las Vegas Recovery Center, and his Admissions Coordinator,  Jackie Pippin.  The Las Vegas Recovery Center is a small, private facility that offers a  chronic pain recovery program.  While most chronic pain management treatment for injured workers involves ongoing prescription pain medication, injections and surgeries,  this program focuses on medically detoxifying the individual from all opioids and then treating the physical and emotional pain with an intensive inpatient treatment program.  That is  followed by outpatient care  modeled on twelve-step recovery programs.  The program uses an individual, multidisciplinary approach that includes physical therapy, biofeedback, chiropractic, Pilate’s, acupuncture, and yoga.   Dr. Pohl writes about alternative  treatments in his book A Day Without Pain.

Dr. Pohl told me that this isn’t a program for every injured worker with chronic pain.  He acknowledged that some injured workers are able to use opioid medications without  developing dependence and compulsive use behaviors.  He also knew that it was very difficult to obtain authorization from industrial insurers for an expensive inpatient treatment for drug dependency caused by a work injury. He and Jackie impressed me as compassionate people who were sincerely committed to finding solutions to how to treat chronic pain, particularly  when it also involves addiction to opioid medications. 

 For more information on the Chronic Pain Recovery Program at the Las Vegas Recovery Center, contact Jackie Pippin at  jpippin@centralrecovery.com or (702) 290-6928.

If you are seriously hurt on the job, and think that you might not be able to return to your old occupation, you may need to be retrained to do a different  kind of work.  Under  Nevada workers’ compensation law, you may qualify for vocational rehabilitation services and benefits if your treating doctor gives you permanent work restrictions that prevent you from returning to your old line of work, and your employer does not offer a permanent light duty job. ( Read more about permanent light duty job offershere.)

If you do qualify for retraining, the adjuster will assign you a vocational rehab counselor to work with you to find a suitable retraining program. While the vocational rehabilitation counselor is not an employee of the insurance company or the TPA managing the claim, the counselor usually has some type of formal or informal contractual relationship with the insurer or TPA.   Counselors vary in personality, in their knowledge of the local labor market, and in their awareness of the best vocational schools in the area. Some are better than others about finding the best retraining option for the injured worker while reporting to an insurer who is focused on keeping costs to a minimum. 

Unfortunately, not much progress has been made in the past 25 years when it comes to successfuly returning injured workers to the work force according to recent research by the Workers Compensation Research Institute.  The current economy, and Las Vegas’ staggering unemployment statistics in particular,  make it particularly challenging to find retraining programs that will actually result in a job with decent wages for an injured worker starting his or her career over again.  However, it can be done, and an injured worker who is willing to put effort into the process can have a successful second career!

Many injured workers are shocked to learn that the voc rehab counselor expects the claimant to do most of the research on  retraining options, and that only 60 days is allowed to do this research    program.   I like for my clients who know they are likely to need retraining, to begin thinking and planning about retraining immediately.  While an injured worker won’t know how much retraining he or she may be entitled to until after the impairment evaluation, the worker can still get started on researching possible options.  An injured worker will only receive an additional  28 days of benefits  to  look for a job after schools ends.   It is therefore crucial that the retraining progam be suited to the individual and that it result in an actual job in the future.

Injured workers should be aware that if their insurer denies their request to reopen their claim, they may not request reopening again for at least a year.  For example, if you send a letter to the insurer asking to reopen your claim, but you do not attach any supporting medical reports, your request will be denied.  If you don’t appeal that denial, then you must wait a year after the date of the insurer’s denial to ask for reopening again. If you appeal the denial, but your lose your appeal,  you must wait a year after the final decision on your appeal before you may ask to reopen again.

You want to make sure that you first understand what your reopening rights are on your particular claim underNRS 616C.390.  Then, you want to make sure that you attach a medical report that is likely to get your claim reopened.  Finally, if your request is denied, you should pursue the appeals process to get your claim reopened if you don’t want to have to wait a year to request reopening again. 

If you had a lawyer represent you previously on your claim, your lawyer should be willing to help you reopen your claim.  If you decide not to bother with your lawyer, then it may be very difficult for your lawyer to help you later if your request is denied because you didn’t follow the proper reopening procedure.   Please read my blog posts about the reopening process before  you attempt to reopen.

I just saw a TV ad that asks injured workers whether they know that they have a right to choose their own doctor.   Enough wasn’t said in this ad in my opinion.  The actual law,  NRS 616C.090, gives injured workers just a limited right to choose a different doctor. 

An employer can require that  their injured employees first go to specific clinics to report a claim and to get initial treatment.   Concentra, Fremont Medical, Harmon Medical Center, and Industrial Medical Group are  examples of  clinics that many insurers and self-insured employers use for that purpose.  If you don’t want problems in getting your claim accepted, you should go where your employer tells you to go to file your claim and to get evaluated by a physician.  Then, you can change doctors after your claim is accepted.

Injured workers who want to change doctors have the right to request a different treating doctor, but they must request the name of one who is already on their  particular employer or insurer’s provider list.  Injured workers  cannot just make an appointment with a doctor of their choosing to treat their job injury or occupational illness.   If it isn’t an emergency, an employee with with an accepted claim must  go through his or her adjuster to first ask which doctors are on the provider list, and to then ask for a change of doctors.

Most injured employees simply don’t k now to ask for a copy of the employer or insurer’s provider list.  If you ask for it writing, they must give it to you.  First get this, then request a change of doctors so that you aren’t wasting your time asking for a doctor who isn’t on the provider list.

Also,  if the injured worker asks to change doctors after 90 days following the date of the accident, the adjuster may refuse to grant the change.  This is a very important right that  injured workers have, but one that few use.  If you are dissatisfied with your initial treating doctor, and many injured workers aren’t happy with the quality of care, get immediate legal  help in transferring your care if you don’t feel capable of doing it yourself. This is the single most important decision you will make on your claim-  who will be your doctor?  And ideally,  this decision should be made within the first 90 days of your claim with the help of someone who is knowledgeable about each of the doctors on the provider list.    For more information on the law on choice of physicians, and to read what the Nevada Supreme Court said about this choice, read my earlier blog post when they changed this law in 2009. 

The most recent edition of the local magazineNevada Business has incorrect information from a local insurance agency on how permanent partial disability awards (PPD) are determined under Nevada law.  The sidebar in the article states that  Nevada has workers’ compensation laws that are pro business and that favor the employer, and I agree with that overall observation.  However,  this sidebar also  states that in Nevada the "PPD is based on work restrictions."  That is incorrect.  The PPD is not based on an injured workers’ work restrictions.

Under Nevada law, the rating physician is required to use the criteria in the AMA Guides to Evaluation of Permanent Impairment, 5th edition.  The Guides determine impairment, defined as "a loss, loss of use, or derangement of any body part, organ system, or organ function."  Guides, 1.2a.  Ratings reflect the impact on an individuals performance of activities of daily living, excluding work, which is not considered to be an ADL in the Fifth Edition.  Guides 1.5.

An injured worker may have a PPD percentage  under the Guides, such as a 1% whole body PPD for a partial meniscectomy to the knee,  but may be fully capable of returning to his preaccident job without any work restrictions.  Many employers, and apparently insurers also, are under the misconception that injured workers who are released full duty by their treating physicians are not entitled to a PPD award.  Whether or not an injured worker has work restrictions does not govern whether the employee is entitled to a PPD award.

Formerly called RSD (reflex sympathetic dystrophy),  CRPS ( complex regional pain syndrome)  is a  type of pain  thought to be caused by an injury or abnormality in the nerve pathway.  It typically causes a  burning sensation, and hypersensitivity to touch  somewhere in the arms or legs.   If not treated early, it may spread from one limb to another.  This diagnosis  strikes terror in the hearts of adjusters, because  the length of time the claimant will need treatment is unpredictable.  

CRPS has always been a controversial medical diagnosis, with the AMA Guides authors taking the view that scientifically, there is no discernable cause of this pain.  The doctors who contribute to the Guides Newsletters suggest that there is an overriding psychological component to CRPS as opposed to an identifiable, underlying  physical nerve problem.  Essentially, the national doctors who are establishing the rules for rating permanent impairment question whether CRPS is a real health condition or a form of malingering.

 Not a lot has changed over the years as to  how injured workers with the diagnosis of complex regional pain syndrome (CRPS) are treated.  After months of trying to get an accurate diagnose of their pain complaints, the injured worker must then grapple with a component of the workers’ compensation medical community’ that views CPRS as  a fictional illness that is encouraged by lawyers. 

I am not a doctor, and cannot diagnose anyone with anything.  That said, however, I can say from personal experience that I have had, and continue to have, clients who are hard-working, sane people who have this dreadful, very real pain disorder.  I have observed that the sooner the injured worker is assigned to a physician who is experienced in treating CPRS, the better the chances for  a successful reduction in pain and return to full function. For more information on diagnosis and treatment, please review theNational Institute of Neurological Disorders and Stroke  fact sheet. 

Before you get rated for impairment at the end of your claim, you want to make sure that the award offered will be based on the right average monthly wage (AMW). Your  AMW is one of the three factors that the insurer must use in determining how much money your percentage of impairment will be for you. The third factor is your age.

Your average monthly wage is calculated a number of ways, all of which use a period of earnings before the date of your Nevada work accident.   Any days you were unemployed or took leave without pay will work against you and will decrease your AMW.   Any unemployment benefits you received during that period will not be added in to boost your earnings.   

If you have a workers’ comp claim and think that the insurer is using an average monthly wage figure that is too low, you can ask your adjuster for a copy of the wage verification form the employer gave the adjuster.  That form should show your earnings for 84 days just before you were hurt.   (There are other rules applicable if you didn’t work 84 days before you were hurt.) If you see that there is a period where you had no earnings, you may qualify to have days without income excluded.  Ask your employer or your adjuster to help document why you had no earnings if you don’t remember the reason.

The law now allows an injured worker to question how the adjuster calculated average monthly wage so long as the claim is still open and the worker hasn’t accepted a final PPD award yet.  NRS 616C.427 is a recent law, added in 2009, and some adjusters aren’t aware of it.  If an adjuster tells you that you failed to file an appeal within 70 days from the date the adjuster first sent a letter with your established average monthly wage calculation, you may nonetheless  still have time to question the AMW calculation.

An injured worker may also request that a one year earning history be used if that would result in a higher average monthly wage than the usual 84-day earnings history.   The regulations that the adjuster must follow in calculating average monthly wage are at NAC 616C.420- 616C.447.

1. File the request for hearing on time at the right place.  Each time your adjuster sends a letter regarding your medical care or your benefits,  appeal rights  are included at the end of that letter.  A request for hearing form should be included  so that you may file an appeal if you disagree with the letter.  You have only 70 days to return that request for hearing form to the Hearings Division in either Carson City or Las Office.  Do not send the request for hearing form to the adjuster instead of to the Hearings Office address.

2. Educate yourself on the issue you are appealing.   If you decide to  handle the appeal yourself, and do not want to hire a private attorney to represent you, there is information posted by the Hearings Office on how to represent yourself.  The Nevada Attorney for Injured Workers (NAIW) also has a handout you may pick up at their office at 2200 S. Rancho Drive, Las Vegas.  I also have a detailed and  free Injured Workers’ Guide to Nevada Workers’ Compensation Law.  Stop by my office at 1945 E. Warm Springs Road,  or call (702) 699-5336, and we will mail one to you.  Also check the categories to the left on this blog.  I have written blog posts on the most common problems facing injured workers.   The complete laws and regulations that apply to claims are on the  DIR  website.   Also, check the articles I’ve written for the  Information Center on my website. 

3 Get documents that support your position. The biggest mistake people make when representing themselves is not having documentation that supports their position.  For example, if you are contesting the insurer’s determination to award you a 3% PPD, you need to show that the 3% is wrong.  You might do that by referencing the AMA Guides, or by asking a rating doctor for a second opinion.  Or, if you are fighting the  insurer’s determination to close your claim, you will need a report from another physician that says that you need more medical care.  Otherwise, the hearings officer only has the treating doctor’s opinion that you don’t need more care.   You can’t simply show up and complain.  You need written proof why your position is the correct one.

4. Attend the hearing in person or by phone.   You must  be present at the hearing in person if you don’t have a lawyer there to argue your position, or you must make pre-arrangements to give telephone testimony.  If you don’t attend, your appeal will be dismissed.  You can’t skip this step and later decide to get an attorney to straighten it all out.  There is no free legal representation at this level.  The NAIW may only provide an attorney to represent you at the next level of appeals if you lose, or if you win and the insurer files an appeal.

5. Carefully decide whether you should be representing yourself.  Many attorneys will answer questions and give you valuable information about the legal issue you want to appeal at a free initial meeting.  If the issue you are appealing is very important, such as the denial of your claim, you may be better off hiring an attorney to represent you before this hearing.   The insurer has a right to appeal a hearings officer’s decision, so you may have to get either an appointed NAIW attorney, or a private attorney to represent you at the next level anyway.  If you think you will need help throughout your claim with getting the right medical treatment, getting your benefits paid correctly and on time, or if you are likely to have a permanent impairment, or if you will need retraining, then you may be smart to hire a private attorney now. The primary difference between the NAIW and a private attorney is that the NAIW only represents injured workers on a specific issue at the appeals officer level.  A good private attorney should be involved in all aspects of your claim and provide an ongoing  valuable service that justifies the fee that will be paid from any settlement.    The NAIW reported in the DIR’s Spring 2011 newsletter that  in the last six months of 2010, they opened  755 new appeals cases, spread among 6 attorneys in the north, and 8 attorneys in their Las Vegas office.  Over 30% of the cases filed at the appeals officer level are assigned to one of the 8 NAIW attorneys in Las Vegas. In comparison, private attorneys may accept or decline to represent a new client if they are too busy or don’t want the case for other reasons. 

People who contact me after getting hurt as a result of an unsafe work condition ask about suing their employer. In this lousy economy many employers are trying to save a buck by not following safety procedures to protect employees from foreseeable accidents. 

The worker who ends up hurt due to an obvious unsafe work condition or practice feels angry toward his employer.  However, the law is the same whether someone is angry or not.  It’s a shock for the injured worker to learn that his employer cannot be sued  for the harm caused by the employer’s failure to correct an unsafe work condition, even if the employer has been asked to correct it and knows that an accident is likely to happen.  The reason for that has to do with the underlying concept behind workers’ compensation laws.

If an injury arises out of and in the course and scope of employment, the injured worker has the right to file a workers’ compensation claim and the right to obtain the benefits described in the Nevada Industrial Insurance Act (NRS Chapters 616A-D).  As the injured worker discovers, those benefits only partially compensate him for his lost wages and loss of earning potential.  No matter how negligent, uncaring, or stupid an employer is about work place safety, if the employer has purchased workers’ comp insurance, the employer is legally protected from a direct lawsuit by the injured employee.  This is called exclusive remedy.

What an injured employee should do is maximize his workers’ comp benefits by educating himself about  all benefits that are available.  The employee may also take action before or after he is injured by filing an anonymous complaint with Nevada OSHA to report unsafe work conditions. An OSHA inspector may inspect a workplace, fine the employer, and order corrective action. However, no additional benefits or compensation will be paid to the injured worker if a violation is found.

Why has the Nevada legislature made it impossible for injured workers to sue negligent employers who cause work injuries with their unsafe work conditions?  The reason is mostly historical.  When workers compensation laws were adopted by the various states at the turn of the century, they were a great improvement for  most workers over  trying to sue their employer under the common law.  The new laws provided immediate medical care and wage loss replacement for all workers regardless of who was at fault for the accident.   The idea was that society would  protect all injured workers to some extent and spread the cost of industrial  insurance on to all consumers through the employers.

This month is the 100th anniversary of the Triangle Shirtwaist Fire that killed 146 people in a factory that had had several  fires.  This tragic fire in a Manhattan sweat shop prompted many of the early reforms to protect workers from unsafe work conditions.The reforms lead to much better working conditions, but  one hundred years later,  employers still don’t always do the safe and right thing to protect their employees from harm.

Are the reasons for not being able to sue the employer still valid in today’s world?   Or, is it time to make an inroad into the exclusive remedy protection afforded to employers?