Workers' Compensation Attorney

I have a client who recently reopened his workers’ compensation claim with Employers Insurance of Nevada so that he could have a back surgery for his worsened spinal  injury.  I sent over the physician progress report from  his surgeon, taking him off work from the date of the surgical procedure until the day of the next follow up office visit with the doctor. Employers wrote back that his request for payment of  temporary total disability benefits was denied.  The reason was that my client had been laid off and was out of work at the time he requested reopening of his claim.

The adjuster for Employers told me that she was relying on NRS 616C.390 to support the denial.  That law says that if a claim is reopened, an injured worker is not entitled to TTD benefits if, before his claim was reopened, he …"retired, or otherwise voluntarily removed himself from the work force for reasons unrelated to the in jury."  I asked the adjuster whether she was joking, or whether Employers actually considered the 14% of Nevada workers who are unemployed to be happily enjoying  their "voluntary retirement".  She replied that an appeals officer in the northern part of the state had interpreted the law to preclude laid off injured workers from receiving TTD benefits, and that Employers was going to  point to that decision and deny benefits until told not to do that.

I’ve filed an appeal on behalf of my client to get a decision from a hearings officer, and then probably an appeals officer, in Las Vegas.  The decisions from one appeals officers are not binding, or precedent, on other appeals officers.   For those of you who are currently laid off from work, do you consider yourself "voluntarily retired?"  Le me hear from you on this issue.

Under Nevada workers’ comp law, the burden of proof is on the injured worker to show that it is more probable than not that the injury or claimed occupational disease is work-related.  This makes it very difficult to get a claim accepted if your doctor isn’t certain that your  injury or illness should be treated under a comp claim.  Your doctor may think that you should instead be getting treatment using your health insurance, assuming you still  have health insurance.

Remember, it is the initial treating doctor at the first clinic that fills out the bottom half of the C-4 Claim for Compensation form.  The doctor must check a box "yes" or "no" that the injury is directly work-related. If the doctor checks the "no" box, or puts a question mark, the insurer or its third-party administrator (TPA) is sure to deny the claim.

You may be sure that your work activity over time is causing your need for medical care, but a hearings or appeals officer will not order your claim accepted based only on your testimony about how you feel.  If your job involves repetitive motions, such as dealing cards, heavy cleaning, constant lifting, bending, or other strenuous physical work, you may be right that you have a compensable claim under existing Nevada statutes and case law. However, you still may have difficulty convincing your doctor that you are entitled to benefits on a  workers’ compensation claim, and you need a supporting medical opinion.

When doctors consider whether your injury or illness is work related, they focus on whether you have pre-existing problems, whether there are other equally likely causes of your condition, and whether your need for care might be related to the normal aging process. The doctor must then decide whether your claim should be supported, and  most  doctors form their opinion without the benefit of information about Nevada law.

The law in Nevada is confusing regarding work activities that involve an aggravation of a pre-existing condition.   Keep in mind that doctors aren’t experienced workers’ compensation lawyers. You will at least want to get a second medical opinion if your initial treating doctor doesn’t report that it is more probable than not that your injury or illness is work related. 

It is not unusual for an insurer or self-insured employer to hire investigators to videotape injured workers for the purpose of showing that the worker is not as injured as he or she claims to be.  Investigators typically park in front of an injured worker’s home to get a few minutes of the worker going to the mailbox, entering their vehicle, or doing household tasks.  These investigators are not violating the law so long as they are not trespassing, and they may videotape the injured worker in public places as well.  

The real problem with these investigations is that an adjuster will then forward edited DVD’s and investigation summaries to the injured worker’s treating doctor without the knowledge of the patient.  It is only when the injured employee receives a letter that benefits have been abruptly terminated that the employee discovers that their doctor has been influenced by a DVD or an investigator’s conclusions.  The employee is often released by the doctor and has no opportunity to discuss the contents of the DVD with the doctor.  Additionally, unless the employee has an attorney, the employee usually has a very difficult time even obtaining a copy of the DVD.

I have seen DVD’s where the person videotaped is not the injured worker, and I have found that many times the doctor will not bother to watch the actual DVD.  It takes time to watch these DVD‘s, as the investigator usually has to catch a minute here and there over several days to compile a DVD.  On the other hand, I have seen cases where the injured worker has claimed severe disability, but is then caught doing very strenuous physical activity that is completely inconsistent.

My complaint is not so much that adjusters and employers hire investigators to sit outside injured workers’ homes. Again, there is nothing illegal with that activity.  Instead, my concern is that it is unfair to the injured worker not to provide her and her attorney with a copy of whatever the adjuster sends to the treating physician.  An injured worker should not be discovering weeks later when benefits are denied or terminated that their physician viewed a surveillance video.  The injured worker and his attorney should have an opportunity when the DVD or investigation report is sent to the doctor to view a copy of whatever is sent to the doctor.

I wrote to the Division of Industrial Relations recently and asked whether DIR has reviewed this issue to formulate a policy.  I was told that DIR has not taken a broad position on the manner in which surveillance videos are sent to doctors, but only investigates particular complaints on a case by case basis if a complaint is filed by an injured worker.  I will be continuing my discussions with DIR on this issue, as I interpret existing law (NRS 616D.330,  NRS 616B.528) as requiring that the insurer send a copy of a DVD and any investigation reports to the injured worker and his attorney when they are sent to the doctor.   As an attorney, I have always succeeded in ultimately obtaining a copy of whatever is sent to the doctor, but not all injured workers have attorneys or the ability and energy to fight for themselves. 

©01/30/11  Virginia Hunt, Esq.

There were 5,528 permanent partial disability ratings done in Nevada in fiscal year 2010, according to a recent email to me from the Medical Unit of the Workers’ Compensation Section (WCS) of DIR.  The Research and Analysis people at the WCS are not done compiling the data on the total number of claims filed for fiscal year 2010, but they told me that in fiscal year 2009, a total of 58,516 claims were filed.  Assuming the total number of claims filed for fiscal year 2010 is the same, then only about 10% of claimants had an  impairment evaluation.  That percentage may be higher if the number of claims filed in fiscal year 2010 is actually lower than the prior year.

The overwhelming majority of claims filed in Nevada are medical only claims.  Most  injured worker get  medical treatment, never miss any time from work, and don’t  have a permanent impairment as a result of their work accident or illness.  If all of the injured workers in Nevada who actually had permanent impairments were rated, then it is fortunate that only 10% of all workers who filed claims had injuries that warranted an impairment evaluation.  Unfortunately, there  is no way to know how many workers should have had a rating evaluation before their claims were closed, but did not.  

An insurer only schedules a rating if the treating physician states on the final physician progress report that it is likely that the injured worker has a ratable impairment.  The problem is that many treating physicians are not familiar with the book used to determine a ratable impairment.  For example, there are still some orthopedic surgeons in southern Nevada that do not know that a partial meniscal repair of the knee is an automatic 1% whole person impairment under the AMA Guide to Evaluation of Permanent Impairment, 5th edition (the book the rating physician must use under current Nevada law). Other physicians do not realize that an injured worker may be entitled to an impairment award  under the AMA Guides even though he is released full duty to his job. 

Do you think that you have a permanent work injury and that you should have had a rating evaluation for a PPD award?  If so, then obtain a copy of your medical records immediately.  In general, if you are still having serious, permanent  problems with your injury, you may have a ratable impairment  It’s free to have me review your records.  Keep in mind that It is much more difficult to reopen a claim that was closed a long time ago just to get a rating evaluation. Legally, it is easier to get an evaluation when the insurer closes your claim  The sooner you get legal help, the better your chances are for correcting any mistakes and getting what is rightfully yours.  

Click here to read my latest article on how to get a second rating evaluation when you think the PPD percentage offered by the rating doctor is wrong.

Please note that this information is offered as general information and is not intended as legal advice as to your particular claim.  There may be options other than obtaining a second rating evaluation.  For example, as an attorney experienced in ratings, I will sometimes write to the rating doctor and ask about a particular aspect of the rating that I think is questionable.

An addendum to an existing rating is less costly.   It is impossible to discuss all options that may be available to particular injured workers.   It is a simple and free process to ask a worker’s compensation attorney to look at the insurer’s offer and the first rating report.

Effective February 1, 2011, the cost of a permanent partial disability evaluation and report will be $673.12.  The cost is set by the Division of Industrial Relations.  If more than two body parts are evaluated by the rater, an additional $224.80 is added.   This cost is the same regardless of whether it is the insurer or the injured worker who is paying for the rating evaluation. That means that injured workers should have a good understanding of how the AMA Guides to Evaluation to Permanent Impairment are applied before jumping to the conclusion that the percentage of impairment offered by the insurer is incorrect.   $673  is a lot of money to spend on a mere hope that a second rating physician will find a higher percentage, and  that hearing officer or appeals officer is likely to agree with the second rating physician.  The cost to have a rating doctor review records and give a report, without examining the injured worker, is now $335.89.   Learn how to obtain a second rating evaluation.

The January 16, 2011 on line edition of the NY Times reports on the unregulated business of loaning money to plaintiffs in personal injury lawsuits, often with devastating financial consequences for the injured borrower who ends up paying  astronomical interest rates.  Unlike injured workers with accepted workers compensation claims, plaintiffs with personal injury claims must wait until their claims settle or  until the defendant is defeated in court before the plaintiff receives any compensation for lost wages or reimbursement for medical expenses.

Personal injury plaintiffs who are out of work due to an accident become desperate for money during the months and years it takes to obtain money on their claim or lawsuit.  They  turn to lawsuit lenders  when they are unable to borrow from friends and family.   These lawsuit lenders  ordinarily do not advertise their  prices, and they are largely unregulated by most states.

I am frequently asked by my clients, injured workers with work-related injuries or occupational diseases, whether I will sign my name as their attorney to an agreement between a lawsuit lender and the client.  I will not do that for several reasons.  First, those lenders I have spoken to have little or no understanding of when or how an injured worker may receive a lump sum settlement under Nevada law.  Secondly,Nevada law prohibits liens on  workers’ compensation settlements.  The notable exception to that law is a judgment for a child support obligation.   Additionally, it is the responsibility of the client alone to repay any loans he or she obtains. My job is to provide the best possible representation on the workers’ compensation claim; not to become involved in loaning the client money.

The Nevada Supreme Court just published a decision favorable to Nevada employees who have illnesses that are caused from their employment.  In City of Las Vegas v. Lawson,  a City of Las Vegas fire fighter filed a workers’ compensation claim after her breast cancer recurred, several years after she was initially diagnosed and treated for cancer. The city denied the claim as being untimely,  because it wasn’t filed when Lawson was first treated and off work due to breast cancer.  The court found that the claim was timely, stating that an employee must first have knowledge of her disability and its relationship to her employment before being required to give notice and file a claim. In Lawson’s case, her doctor did not know or tell her until after her recurrence of cancer, that her exposure to known carcinogens when fighting fires was related to breast cancer. 

Nevada law requires an employee to provide written notice of an occupational disease within  7 days after the employee has knowledge of the disability and its relationship to the employee’s employment.   In addition, the employee must file a claim for compensation ( the C-4 Claim for Compensation form),  within 90 days after the employee has knowledge of the disability and its relationship to his or her employment.  NRS 617.342(1), and NRS 617.344(1).  In Lawson’s case, the appeals officer believed her when she testified that she did not know of the relationship between her breast cancer and her work as a fire fighter when she was first diagnosed and first off work. 

Please note that the laws pertaining to occupational diseases, including cancer, lung disease, and heart disease are  different,  depending on whether the employee is a fire fighter or police officer, or employed in some other occupation.  Nevada employees in other occupations can rarely  establish a  Nevada workers’ compensation claim for cancer. While this case discusses laws applicable only to fire fighters, it has useful application  to all Nevada employees regarding the time limits  for  filing a written notice of injury or /illness and when to  fiile a claim. 

Whether or not you are entitled to receive a permanent partial disability award for your  low back strain depends on the following three factors:

1. Whether your treating physician writes after your final visit that you may have a ratable impairment. 

Your insurance adjuster will only schedule a rating exam if your treating physician checks a box on the physician progress report  (or otherwise writes in the final report ) that it is likely that you have  a ratable impairment.  Unfortunately, some treating doctors don’t know what is a ratable impairment under the AMA Guide to Evaluation of Permanent Impairment, 5th edition, the book that must be used to determine percentage of impairment.  For information on what to do if the insurer refuses to schedule a rating evaluation, click here.

2. If you do get a rating,  whether the rating doctor finds that  you still have objective signs of a permanent back injury.

 Regardless of how bad your low back strain was at the time of your injury and in the months afterward, if you have no objective signs of a low back injury when you go for your rating evaluation, the rater will likely find a 0% impairment.  Objective findings of an injury would be observable muscle guarding or  spasm by the rating doctor, or positive  neurological studies, or positive MRI findings that correspond to what the doctor finds on her exam.  Pain complaints alone are subjective, and are not sufficient to support an impairment percentage.

3. Whether the rating physician properly applies the criteria of the Guides.

Most of the rating doctors on the current DIR list of approved rating doctors are capable of properly rating a chronic low back strain.  However, some are not.  If you feel that you have a permanent low back injury, and the rating doctor gives you a 0% impairment, you may want to obtain a second rating evaluation and appeal the insurer’s letter closing your claim with a 0%.   Many attorneys, will provide a free consultation to advise you of your options and discuss whether it is worth spending the money on a second rating exam.  The cost of a second rating exam depends on the number of body parts to be rated.  Expect to spend at least $673  for a second rating exam.

So many of the phone calls and emails I receive are about how to reopen a closed claim that  I am providing useful links to the articles and blogs I’ve written about reopening.   Please read these articles, as they do take you step by step through the process to first determine whether you can reopen your claim, and then how to go about reopening your old claim.

https://jhwlawoffice.com/reopen-claim.php

It will be difficult for most of you wanting to reopen your claim to get a private attorney to help you,  particularly if you have already received the maximum amount payable for a permanent impairment.  That is because private attorneys get paid for helping injured workers by charging a percentage of the permanent impairment award.  If there is no possible additional award after the claim is reopened, the attorney will not be paid a fee for helping to get the claim reopened.   That is why you want to make sure that when you first hire an attorney to represent you, that the attorney will  agree to also help you reopen your claim if that is ever necessary in the future.   If your old attorney doesn’t seem to remember you or want to help you, and a new attorney is not interested in helping you because he or she needs to be paid, there is the Nevada Attorney for Injured Workers.  The NAIW will assist you if your reopening request is denied, and you need representation at the appeals level.