Workers' Compensation Attorney

The Division of Industrial Relations announced that efffective January 1, 2011, the mileage reimbursement rate is increased from 50 cents per mile to 51 cents per mile.  The rules that apply as to when an injured worker is entitled to claim mileage reimbursement are found at NAC  616C.150-  NAC 616C.156.    In general,  injured workers who travel more than 20 miles one way for treatment, or more than 40 miles in any one week, are entitled to reimbursement.  The request for reimbursement must be be on a D-26 form and must be sent to the insurer within 60 days of the dates traveled.  Do not wait until the end of your claim to send in all mileage reimbursement requests. Always save a copy of the form you send to the adjuster, and expect to wait at least two weeks for a reimbursement check.

I’m resolved this year to be so positive that those around me can’t help but to take some to use in their own battles with adversity  and negativity.   My clients come to me because they have overwhelming problems in dealing with their work injury- either medically, vocationally, emotionally, financially, or all of these things at once.   My job is to be a problem solver and a source of information and inspiration for injured workers  so that they may move beyond their injuries into a better life. That’s a tall order for me, and some days I do a better job than others. In order to help my clients with negativity, both internal and external, I’m resolved to set a better example in my own life. Here’s how I hope to do it:

1.       Write it down.

I’m setting my alarm ½ hour earlier each day to handwrite three pages of whatever comes into my mind. This is time to complain, establish a wish list, vent anger, and just write freely.  It’s cathartic. I can unload some unnecessary baggage to make myself lighter for the coming day. 

2.    Thank someone for something every day. 

 I don’t get around to sending a written note to someone every day, but I really have no excuse not to do that, as I have a staff to help me.  As an injured worker, you will need a lot of help from a lot of people while you heal physically and financially. A simple handwritten thank you note to someone who has extended a kindness or good service to you says so much about you as a person, and produces wonderful surprises. 

3.   Clarify what I want and what I don’t want.

This may sound obvious, but it isn’t. It is incredibly difficult, for example, for many injured workers to tell me what they would like to do for a living if they could choose anything at all.   For me, taking a few minutes to get away from external noise and all the busy things going on around me, helps me focus on what my goals are. When I am able to identify exactly what I would like to happen, it is more apt to happen. 

4.    Take more responsibility for my happiness.

Some days it takes almost a constant mantra of,  “ I can choose to feel differently about this”, in order to stave off the negativity others are heaping on my head.    In order to make room for the good that is ready to happen, we need to clear ourselves of the resentments we hang onto and the false focus on the unfairness of life. This attitude adjustment needs a lot of work, but I can resolve to keep trying to improve upon it daily.

5.       Volunteer more

On days when absolutely nothing is going right, perhaps I simply need to give more time, attention, or money to someone else.  I often recommend volunteer work to those clients who are unemployed. And if you don’t have time, energy, money, or attention to give away, then just extend some small act of kindness to another. 

6.       Be more patient and forgiving with myself

Best Wishes for a Safe and Happier New Year Everyone!   Virginia

The Workers’ Compensation Section of the Division of Industrial Relations (DIR) reported in their winter newsletter that an average of 464 ratings are sent in each month. Nevada law requires insurers to send a copy of all  PPD evaluation reports to DIR.   As of December 1, 2010, there were 141 rating doctors who were on DIR’s rotating list of  physicians and chiropractors.  The Workers’ Comp Section (WCS)  takes three rating doctors  from the north of the state, and three rating doctors  from the south to meet every six weeks to  review about 10% of the ratings that the WCS randomly reviews for possible errors.  DIR’s Southern District Manager wrote to me that of the 10% that are reviewed by WCS employees, about 30 PPD reports that have possible errors  or discrepancies are sent  to the PPD Panel for further  review. 

The PPD Panel then provides confidential  recommendations to those 30 or so rating doctors whose ratings have mistakes. This  review is supposed to be for the benefit of the individual rating physician to improve the overall quality of impairment evaluations in Nevada.  When I asked the Southern District Manager  whether an insurer or injured worker is entitled to see a Panel review, she responded that legally, neither the insurer,  nor the claimant,  may see or obtain a copy of  Review Panel’s comments.

Nor may an injured worker or an insurer  request that the WCS or the PPD Review Panel check over a particular rating report. If an injured worker or the insurer  thinks that the PPD rating doctor made a mistake, they must pay for a second evaluation or pay for their own  review by another doctor.  Some insurers send all larger PPD ratings to an outside service to check whether a lower percentage should be offered.  The DIR quality assurance process is not something that an injured worker can use to determine whether their rating was done correctly. 

Click here for more information on how to obtain a second rating evaluation if you think your rating percentage is incorrect. Please keep in mind that if you are unsure about whether your rating percentage is incorrect, this attorney will review your  rating report for you free of charge to advise you whether you should pay for a second rating evaluation or not. Given the high cost of a second rating evaluation, you don’t want to pay for one without first knowing the likelihood of obtaining a higher percentage with a second rating physician.

Injured workers who have permanent physical restrictions that prevent them from returning to their old jobs are usually separated from their old employer and assigned a vocational rehabilitation counselor.  That independent counselor’s job is to help  you develop a retraining program over the next 60 days that can be presented to the adjuster for approval. 60 days is a very short time to have the voc rehab counselor test your skills and to determine whether you are likely to be successful in a particular training program.  And 60 days is a short time for you to investigate and actually visit various schools that have training programs. An injured worker who thinks that he will not be going back to his preaccident employer due to a permanent injury, must start thinking about retraining options as soon as possible.

At the end of the retraining program, the injured worker is given only 28 days of additional benefits while the worker searches for a job in her new field.  The voc rehab counselor, and the school providing the retraining, should both be helping the injured worker to find new employment.  However, 28 days is a short time to find work in this economy.   I advise my client to think ahead and plan for the job search now.    Look at this old CNN post on CareeerBuilder.com on  "10 Reasons You Can’t Find a Job".   Those clients of mine who have a written plan for finding a job in a notebook are ultimately successful.  Those clients who do not write down their efforts, what they intend to do each day,  and who simply talk about job search efforts are not likely to find jobs.  

According to the Survivors Club, the skill of adaptability, or the ability to adjust to new situations and change your attitude and behavior to handle new challenges is a hallmark trait of a survivor.    Ben Sherwood, author of  best-selling book Survivors Club, says that it’s definitely possible to make changes in our attitudes and behaviors to develop new abilities to cope with adversity.  Looking for a job following a retraining program requires drawing on the psychological strengths common to the most effective survivors: adaptability, resilience, faith, hope, purpose, tenacity, love, empathy, intelligence, ingenuity, flow and instinct.   I encourage you to revisit their web site for more information on how to hone these strengths for your job search period.  Good luck to you.

I came across another website that offers information on treating chronic pain, as well as a comprehensive list of other websites with additional help for people dealing with injuries or illnesses that cause chronic and long-lasting pain. There may be something useful for you here, particularly the kit offered for tracking and measuring your pain.  http://www.partnersagainstpain.com/pain-management-resources/tips.aspx  You might also want to read the articles on how to better communicate what you are experiencing and feeling with regard to your pain when meeting with your doctor.  As you know, so much of treating chronic pain involves trial and error, both with prescription medications and lifestyle changes until the person does not feel overwhelmed and controlled by pain.  I am always looking for useful tips or information to share with injured workers, so please feel free to send me your comments.

Q:   If I file a workers’ compensation claim, does that mean that I am suing my employer? 

A:  No.  When you go to a doctor for your work injury, the doctor should give you a C-4 (Claim for Compensation form) when you tell the doctor that you were hurt at work.  Your completion of the upper part of the form, and the doctor’s completion of the lower part of that form is absolutely necessary to start the claims process.  The doctor’s office is responsible for sending the C-4 form to the third party administrator for your employer’s industrial insurer.   Your employer expects you to follow your employer’s rules for reporting injuries,  and your employer is required by law to tell you where you should go for medical care where you file the C-4 claim. Filing a claim is not  suing your employer.  In fact, you cannot legally sue your employer for injuries that arise out of the course and scope of your employment.  You are limited to the benefits the Nevada legislature makes available to injured workers under the Nevada Industrial Insurance Act.  Your exclusive remedy for obtaining compensation for your injury from your employer is strictly through Nevada workers’ compensation laws.  That is true even if you can show that your injury was caused by your employer’s negligence or your employer’s failure to follow safety regulations.

Q:  Am I suing my employer if I hire an attorney to represent me?

A:  No, an experienced workers compensation attorney will instead obtain all available benefits for you under the Nevada Industrial Insurance Act, or the Nevada Occupational Disease Act.  Most decisions regarding medical treatment and compensation on your claim are made by the adjuster assigned to your claim.  If your attorney disagrees with something the adjuster does or does not do, your attorney will file an appeal  with the hearings division of the Department of Administration.  Most disputes that involve appeals on workers compensation claims are between  the injured worker and the third party administrator for your employer’s insurer.  Sometimes the employer takes a position on a particular issue and is involved in a hearing, but you are still not suing your employer by filing appeals.  Most injured workers like their employers and hope to return to the same job after they recover from their injuries. An experienced  workers’ comp lawyer will not want to do anything that disrupts your good relationship with your employer.

I got behind in my blogging while I made a quick trip to North Carolina for a week of helping to care for my father.  He is undergoing radiation for throat cancer for seven weeks, and needs help with transportation to the oncology center, help with nutrition and self care, and coordination of other doctor appointments.   Fortunately, his prognosis is good, and I have many siblings with wonderful spouses who can also spend a week helping to provide necessary unskilled care. I mention this very personal experience, because I just  read in elder law attorney James M. O’Reilly’s newsletter that more than 75% of Baby Boomers are providing unpaid care to an elderly parent.  Several of my clients have mentioned the difficulty they are having providing financial and similar care for their parents as they struggle with their work injuries and reduced income.  This blog post is to let you know that I found the resource section of Attorney O’Reilly’s website to be helpful as I educate myself about Medicare, VA benefits, and options for care when a family member or friend cannot help.

Good news for injured workers.   The Nevada Supreme Court recently issued a new decision clarifying when an injured worker’s accident while walking down stairs at work is considered work-related and compensable.  In Rio All Suite Hotel & Casino v. Phillips, the Court held that a poker dealer’s ankle injury was compensable.  The dealer was walking down the stairs that lead to the employee’s break room when she twisted her ankle. There was no debris on the stairs and the stairs were not dangerous.  The court noted that the dealer was required to use this particular set of stairs six times per shift,, and because she was exposed to a significantly greater risk of falling on these stairs than the gneral public, her inexplicable ankle injury on the stairs was job-related.

Under an  "increased-risk test" adopted by the court, an employee has a workers’ comp claim if he is subjected to a risk greater than that to which the general public is exposed.   Examples of an increased risk would be when the employee is exposed to a common risk more frequently than the general public, or when steps are an unusual height, or when the manner in which in employee is required to descend steps increases the risk of falling.   Whether a fall is explained or unexplained is irrelevant.   A prior decision from the court in Mitchell v. Clark County Sch. Dist.,, 121 Nev. 179 (2005) held that an employee who fell on a flat surface at work while walking toward a staircase and then inexplicably rolled down the stairs did not have a compensable claim. 

If you are injured while ascending or descending stairs at work, and your claim is denied, you should consult with an experienced workers’ compensation attorney right away.  Ever since the court decided the Mitchell case in 2005, adjusters have been denying all accidents involving staircases at work.  While we can expect adjusters to continue to deny legitimate claims, an injured worker can now argue that the Nevada Supreme Court never intended for every staircase claim to be denied.   The facts of each claim are very important.  Make sure that you bring a copy of all documents concerning your claim when you go for a free consultation with an attorney on your denied claim.  

With unemployment in Nevada at an all-time high, construction workers who are injured on the job are afraid to report and file workers’ compensation claims. However, those who delay and then discover that they have a serious injury that may require surgery will regret that they did not follow the steps below. The risk of your employer taking adverse action against you for reporting an injury and getting immediate medical attention is far less than the risk of having a claim denied when it is filed late. Employers know that they can be sued for wrongful termination if they fire an employee because the employee pursued a workers’ compensation claim. 

When in doubt, do the following:

·         Report your injury on time and in writing.

Follow the employer’s policies on reporting job injuries. Nevada law requires that injured workers report work injuries to their employers within 7 days. However, many employers have policies that require immediate notification to a supervisor. Even if your supervisor makes a snide comment, ignore the comment, and stick to the procedure for reporting injuries immediately in writing.   

·         Submit to any drug testing your employer requires.

Employers often require that you immediately report your injury so that you can be drug and alcohol tested. If you test positive, in addition to your employer terminating you, your claim will probably be denied. However, there is a rebuttable presumption that the accident was caused by your being under the influence. Contact an experienced Nevada workers’ compensation attorney, particular if you test positive for marijuana, and the denial may be reversed through litigation.  

·         File a workers’ compensation claim when you get medical care.

If you chose not report your injury and use your private health insurance, it is very difficult to later file a claim and get it accepted.    Many workers do not want to anger their employers by reporting a job injury, and they hope that their injury is not serious. However, if the injury turns out to be serious, you will probably have your late claim denied.  You will then lose valuable benefits available to injured workers under Nevada law unless your attorney can successfully reverse the claim denial.

·         Appeal claim denials.

Insurers love to deny claims where the insurer can show that the injured worker treated for the same condition or injury in the past. However, with good legal representation, most of these claims involving pre-existing conditions can be won for the injured worker.

·         Investigate for third party liability.

If the accident was caused by someone who is not your co-worker or your employer, you may have a personal injury claim in addition to a workers’ compensation claim, and be entitled to recover additional money. Only an experienced attorney will be able to tell you whether the exclusive remedy doctrine applies to your particular facts, and advise you whether you may also pursue a personal injury claim.

Q: What happens if my work injury prevents me from being able to do my old job?

A:  If your treating doctor releases you with permanent work restrictions that are not compatible with the physical requirements of your job, one of three things is likely to happen:

1) your  employer may offer you a  permanent light duty position , or

2) if your  employer doesn’t offer permanent light duty,  you will be eligible for vocational rehabilitation benefits and/or services, or

 3) you can try  to get your permanent work restrictions lifted so that you can stay in your  job.

Q:  Doesn’t  my employer have to provide me with a permanent light duty job?

A:  No, your  employer is free to say that it does not want to offer a permanent modified position.  While the  Americans with Disabilities Act, if applicable to your employer,  may be helpful in securing an accommodation and keeping you employed, Nevada workers’ compensation law  does not provide job security to injured workers.

Q:  What if I am released full duty and my employer has given my job to someone else or simply won’t rehire me? 

A:  Workers’ comp law provides that benefits are not payable  if the injured worker is released full duty and the pre-accident job is no longer available.   An employer is not required to hold an  injured worker’s job position open indefinitely.  If applicable, the Family Medical Leave Act, may require an employer to hold the job open for up to 12 weeks.   Many injured workers need to file for unemployment benefits when they are able to work.  No recourse can be taken against an employer for not rehiring the injured worker unless it can be proven that the employer is retaliating against the injured worker for filing a workers’ comp claim.

Q: What is the best way to keep my job after an injury?

A:  Because an employer is not obligated to offer permanent light duty, the safest way to secure your job is to have your treating doctor release you full duty, without work restrictions.  (You can still be rated for impairment and receive a PPD award even if you have a full duty work release.) Of course, you need to be able to do your old job if you intend to convince your treating doctor that it is safe and reasonable to send you back to work full duty.  If you are unsure, then ask your doctor to give you a trial of 2 weeks or 30 days of full duty, with a follow-up appointment.  That way, if you really cannot work full duty, you will get permanent work restrictions at the follow-up visit,and be entitled to vocational rehabilitation.  Keep in mind that if you do have a full duty work release, your employer has a right to expect full duty work performance from you.   You want to be a valuable employee, and don’t want to give your employer any excuses to look for reasons to terminate your employment.

Q:  What else can I do to keep my job even if I have restrictions?

A: From the moment your doctor and you think that you may have permanent work restrictions, you can start strategic planning  on how to keep your job.  Devise a plan for showing your employer how you can remain a valuable employee.  Refuse to be a victim, and focus on what you are still qualified to do.  Put yourself in your employer’s shoes, and think creatively about how to best use your skills.  Keep in contact with supervisors and human relations reps so that you are aware of positions that may be opening within the company.  Ask whether you would be qualified for other positions with a short course of retraining.