Workers' Compensation Attorney

This year’s legislative session was a big one, so big that I will need to break it down into separate blogs. There were three bills that passed this session, that will have an impact on workers’ compensation. The biggest of which was SB 289, which made changes to apportionment, who can sign C-4s, determinations sent by fax, liens, accepting a PPD while still contesting certain issues, vocational rehabilitation, and costs. This blog will discuss the changes to the statute that govern apportionment of PPD awards.

What is apportionment?

The easiest why to describe apportionment in terms of workers’ compensation is… it is a method to assign part of a permanent impairment to either a prior industrial injury or a non-industrial injury. Rating doctors apportion when they are evaluating an injured worker for a permanent impairment and the injured worker has a prior injury that is contributing to their overall permanent impairment. For example, if an injured worker was in a car accident that resulted in a back injury, then a year later hurts their back at work, the rating doctor might find that the prior back injury had an impact on the subsequent work injury. Apportionment allows a doctor to attribute some of the permanent impairment to the prior injury leaving the workers’ compensation insurer only responsible to the portion of impairment the doctor says is from the work accident.

How does SB 289 affect apportionment?

Prior to SB 289 a PPD rating physician or chiropractor could apportion a percentage they felt “just” whether they had medical records to justify the percentage or not. For example, if a doctor felt a prior back injury was contributing to an injured worker’s current back injury often times the rating doctor would apportion 50%. In this example, the injured worker might be found to have a 10% impairment and only receive a 5% after apportionment. Thus, dramatically reducing their PPD award.

With the passing of SB 289, a rating physician or chiropractor can no longer apportion if there was no prior PPD award, unless: 1) the insurer proves the existence of an impairment prior to the injured worker’s date of injury for the current claim, and 2) the rating physician or chiropractor states to a reasonable degree of medical probability that the injured worker would have had a specific percentage of disability immediately before the date of the injury. Thus, the days of an automatic 50% apportionment are gone!

In summary how will this affect your workers’ compensation claim moving forward?

If you have not had a prior PPD evaluation for the same body part or unless the workers’ compensation insurance company has medical records of a prior injury to the same body part and a rating doctor assigns a specific percentage of impairment to your prior injury do not worry about apportionment.

Give me a call or send an email for a free consultation if you have questions or concerns about your Nevada workers’ compensation claim.

While the cost of a Permanent Partial Disability (PPD) exam usually falls on the workers’ compensation insurer. There are circumstances when the burden falls on the injured worker. Unfortunately, this burden just got a bit heavier for the injured workers to carry in these rare situations.

Effective February 1, 2021, the cost of a PPD evaluation for 2 body parts rose from $865.02 to $901.35.

Two of the most common reasons an injured worker may have to pay for a rating out-of-pocket include situations in which the insurer is attempting to close the claim without a rating (although, there may still be a way to keep the burden on the Insurer in this case), and when the injured worker disagrees with the resulting percentage from a prior rating evaluation.

If you believe your claim has been unfairly closed without a rating, or that you had an inaccurate rating evaluation, consult an experienced attorney in order to weight the pros and cons of paying the hefty out-of-pocket expense necessary to get a rating yourself. I will review your PPD report and offer free of charge.

Give me a call or send an email for a free consultation if you have questions or concerns about your Nevada workers’ compensation claim.

Effective January 1, 2021, the reimbursement rate for workers compensation related travel has been decreased from 57.5 cents per mile to 56 cents per mile. See the Division of Industrial Relations’ memorandum here.

Injured workers are eligible for mileage allowance under NAC 616C.150. Mileage is eligible for reimbursement if the injured worker is (1) traveling to a doctor’s appointment related to his or her workers compensation claim (this includes physical therapy); (2) is using a private vehicle; (3) and travels 20 miles or more one way, or 40 miles or more within one weekIn order to be reimbursed for eligible travel expenses, the injured worker must fill out a D-26 Application for Reimbursement of Claim Related Travel Expenses and submit it to the adjuster. Mileage expenses must be submitted within 60 days of the travel date.

There are a couple of things you can do to make reimbursement as simple as possible for yourself, as well as your adjuster.

• • Fill out one reimbursement form for each month. Submitting multiple forms at separate times throughout the month makes it more difficult for your adjuster to calculate the expenses, and may delay your reimbursement check;
  • Use MapQuest or Google Maps to calculate the mileage. Your adjuster will double check the distance using one of these sites;
  • When following up with your adjuster for mileage reimbursement check, have a copy of the request on hand. Knowing the dates that the request covered will help your adjuster know exactly which expenses you are referring to. Keep in mind that the insurance company has 30 days to issue a mileage reimbursement check. Generally, the check goes out in the mail the day after it is issued.

Give me a call or send an email for a free consultation if you have questions or concerns about your Nevada workers’ compensation claim.

On October 8, 2020, the Nevada Supreme Court published their decision in Clark County v. Brent Bean, 136 Nev. Adv. Op. 65 (2020). The Court took the opportunity to agree with the District Court’s reasoning to deny Clark County’s Petition for Judicial Review that permanent partial disability (“PPD”) benefits differ from temporary total disability (“TTD”) benefits, in that PPD benefits are medical benefits  “intended to compensate the injured worker for permanent physical damages caused by the industrial injury or occupational disease and not a form of disability compensation associated with lost wages.” The Court not only agreed with the Appeals Officer’s finding that the Claimant in Bean was entitled to PPD benefits but held that compensation for a retired employee’s PPD rating must be based on the wages they earned before retiring.

Case Summary.

This is a firefighter case, where a firefighter filed a claim for industrial insurance benefits for an occupational disease after he had retired. The claimant in this case, Mr. Bean, worked as a Clark County firefighter and retired in 2011. Three years after he retired, in 2014, he was diagnosed with cancer and had part of his prostate removed. He received a 40% PPD rating and filed a claim for an occupational disease under the Nevada Industrial Insurance Act. (Certain professions like firefighters who develop cancer can file a claim for an occupational disease even after retirement.) See, NRS 617.453(6).

Clark County accepted Mr. Bean’s case but declined to pay him any benefits for the PPD rating. Clark County based their denial on a 2005 case, where the Nevada Supreme Court held that a workers’ compensation claimant is not entitled to TTD benefits for an occupational disease manifesting after retirement. See, Howard v. City of Las Vegas, 121 Nev. 691 (2005). However, in 2019 the Nevada Supreme Court held that a retired claimant was entitled to death benefits based on the wages earned immediately before retirement. See, DeMaranville v. Employers Insurance Co. of Nevada, 135 Nev. 259 (2019).

Mr. Bean appealed Clark County’s refusal to pay him benefits and won before the Appeals Officer. Clark County then appealed the Decision and Order to District Court and sought a Petition for Judicial Review. The District Court declined the Petition for Judicial Review and thus the Appeals Officer’s Decision and Order would stand. Clark County then appealed to the Supreme Court of the State of Nevada.

In this case, the Supreme Court stated, “We conclude that DeMaranville’s analysis of compensation for death benefits is directly applicable here because the regulation governing the calculation of compensation for both types of benefits [TTD and PPD benefits] is the same. Furthermore, neither death benefits nor permanent partial disability benefits are statutorily limited based on the amount of work missed, and both are meant to compensate an employee who suffers death or permanent disability resulting from their employment.”

The Court affirmed the District Court’s denial of Clark County’s Petition for Judicial Review, as the appeals officer correctly found that the retiree was entitled to permanent partial disability [PPD] benefits based on the wages he was earning at the time he retired.”

Another great decision from the Supreme Court of the State of Nevada!

Give me a call or send an email for a free consultation if you have questions or concerns about your Nevada workers’ compensation claim.

Previously, I wrote a blog about SB 381, which was a bill passed in the 2019 legislative session that changed how workers’ compensation developed and published their provider lists. SB 381 was codified in the Nevada Revised Statutes at NRS 616C.087. This new statute dictates how many doctors for each specialty an insurer must has have on their provider list, where the workers’ compensation insurers must publish their lists, and how doctors willing to treat injured workers may be added or removed from the insurer’s list.

A provider list is a list of doctors that a workers’ compensation insurance company has of doctors who they authorize to treat injured workers insured by their insurance company. Almost every insurance company or self-insured employer has a provider list.

The deadline for workers’ compensation insurers to send their new provider lists, which comply with the doctor per specialty requirement of NRS 616C.087, was October 1, 2020. Insurance companies had to send these lists to the Division of Industrial Relations (“DIR”) by then and the DIR would then publish these lists on their website for all to see. Previously, these lists were only given when requested directly from the workers’ compensation insurance company and were often frequently changing. Those days are now over!

Failure of a workers’ compensation insurance company to publish a list to the DIR by October 1, 2020, means that an injured worker can select and treat with physicians on the DIR’s master list, which includes all physicians in Nevada that are authorized to treat injured workers.

A list of all the workers’ compensation insurer’s provider lists can be found here. A list of the DIR’s master provider list can be found here.

Give me a call or send an email for a free consultation if you have questions or concerns about your Nevada workers’ compensation claim or workers’ compensation doctors / insurance company provider lists.

A quick look at the timeline for filing a workers’ compensation claim in Nevada. Contact me for a free consultation or case review.

Frequently I am asked by potential clients and current clients whether there is a settlement at the end of their workers’ compensation case or how much their case is worth. This question is often hard or impossible to answer. Sometimes, I can estimate whether I think you are likely to have a permanent partial disability (PPD) award and ballpark what I think it might equate to. However, your PPD award or workers’ compensation settlement is a figure that is based on your rating percentage, your age, your average monthly wage, and a figure from the applicable annuity table. For purposes of this blog a PPD award and a workers’ compensation “settlement” are the same thing. Below are 3 things to check to determine if your PPD award / workers’ compensation settlement is correct.

• Is your average monthly wage correct?

Your average monthly wage is a figure that is determined by your workers’ compensation adjuster, which they use to calculate your temporary total, temporary partial, permanent partial, and permanent total disability benefits.

The workers’ compensation insurance adjuster will request your wage information from your employer through a D-8 form. There are two ways to calculate average monthly wage, through a 84 days and 1 year wage history. The workers’ compensation adjuster should also factor in any concurrent (second job) employment you had at the time of the injury. The adjuster must use the highest average monthly wage figure.

The higher your average monthly wage the higher your PPD award / workers’ compensation settlement.

• Did the insurance company use the correct annuity table?

An annuity table is a set of figures that conform to a person’s age, the inflation rate, interest rates, and life expectancy. These tables are created by an actuary and adopted by the Division of Industrial Relations (DIR) every year on July 1^st. The workers’ compensation insurance company must use the table that has been adopted by the DIR at the time the injured worker accepts the PPD award. Meaning if your workers’ compensation adjuster made the PPD award offer on June 28^th and you accept the award on July 2^nd they must recalculate the PPD award using the new tables. The current annuity table can be found here.

• Did the rating doctor give you the correct PPD percentage?

At the end of all your treatment for a work-related injury your workers’ compensation doctor will state whether you have a ratable impairment. A ratable impairment means you have a lasting effect from the injury you suffered at work, otherwise known as a permanent disability. A permanent disability does not always equate to the same thing as a disability in the eyes of, for example, social security disability. In workers’ compensation this permanent disability if established using the AMA Guides to the Evaluation of Permanent Impairment. Nevada uses the 5^th Edition of the AMA Guides to the Evaluation of Permanent Impairment. Your percentage of impairment can be determined by your symptoms, your range of motion, and the type of treatment you had.

Common errors made my rating doctors include incorrect apportionment (subtracting from the total impairment for possible prior injuries), not evaluating all accepted body parts, and not thoroughly examining the medical records.

The higher the impairment percentage the higher the PPD award / workers’ compensation settlement.

Give me a call or send an email for a free consultation if you have questions or concerns about your Nevada workers’ compensation claim or your PPD award / workers’ compensation settlement.

A lot of clients have this question. Frustration often sets in immediately after the injury, but can be made worse if the injured employee feels she is not being treated fairly at work, is not receiving TTD (pay for being out of work) benefits, receiving TTD benefits, or their employer is not following their work restriction. Many times I have heard from clients that their employer/ co-workers are harassing them about being injured, that they cannot survive on 66 and 2/3% of what they were making, or that their employer is requiring them to work beyond the restrictions given by their doctor. These problems led to the question, “can I find a new job?”

In short, my answer is usually “yes.” However, I always have to warn my clients that looking for a new job requires an understanding of three very important things: 1) if you quit your job, you are no longer entitled to TTD benefits; 2) your new job must fall within your work restrictions; and 3) you need to let the workers’ compensation insurance company know about the new job.

No longer eligible for TTD benefits?!

An injured employee is entitled to TTD benefits when their employer either has no light duty work, that complies with the doctor’s work restrictions, or when the injured employee is taken off work completely for a period of time by the doctor. TTD benefits are paid at 66 and 2/3% of the injured worker’s average monthly wage. The benefits continue to be paid until either the doctor releases the injured worker to work “full duty” or until the employer offers a light duty job position that complies with the doctor’s work restrictions.
If an injured employee voluntarily takes themselves out of the work force by either quitting or going on FMLA leave, the workers’ compensation insurance adjuster can stop TTD benefits.

My new job has to know I was injured at work?!

Yes. If an injured worker gets a new job, while they have work restrictions from a workplace injury at another job, the injured worker cannot work outside of those work restrictions for a new employer. An injured worker must notify the new employer of any work restrictions they may have to be sure the new job will not exceed them. Working outside your work restrictions can negatively impact a workers’ compensation claim in the following ways: 1) give an adjuster reasons to deny further treatment, 2) give an adjuster a reason to issue claim closure, and 3) give an adjuster a reason to pursue a claim for workers’ compensation insurance fraud with the Attorney General’s office.

I need to tell my adjuster about the new job?!

Yes. The workers’ compensation insurance company needs to know about the new job for two reasons, 1) so that they can stop TTD benefits, and 2) so they can confirm you are working within your work restrictions. An injured worker cannot both collect TTD benefits and work a new job, doing so may cause an adjuster to file a claim for fraud.

An example of when an injured worker can look for/ take a new job is:

A construction worker gets hurt at work and is placed on restrictions by a doctor making him no longer able to perform his typical work duties. The injured construction worker shows his work restrictions to his employer, who then says he has no light duty work. (The injured construction worker then is eligible for TTD benefits.) The injured construction worker finds an add for a call center that pays more than his TTD benefits do. The injured construction worker interviews with the call center and informs them that he is only allowed light duty work and cannot lift more than 10lbs. The call center says that is fine. The injured construction worker then quits with the construction company and starts working for the call center. The injured “former” construction work then calls and notifies his workers’ compensation insurance adjuster that he is working a new job that falls within his work restrictions.

Give me a call or send an email for a free consultation if you have questions or concerns about your Nevada workers’ compensation claim or about finding a new job while receiving workers’ compensation benefits.

For Fiscal Year 2021, which began on July 1, 2020, the maximum average monthly wage used to calculate workers’ compensation benefits has increased to $6,275.73. This is applicable to injuries on claims filed after July 1, 2020. If you have a claim established already, this increase will not affect your benefits. The maximum temporary total disability benefit in Nevada is 66 2/3 of the maximum average monthly wage. That means that if the injured worker is off work due to the injury for a month, or her employer does not have light duty work within the doctor’s restrictions, she will receive $4,183.82 in compensation benefits that month. The usual 14-day payment will be $1,924.16. Each day in the pay period is counted, including Saturdays and Sundays, when calculating compensation benefits. The daily rate under the new maximum average monthly wage is $137.44

View: Average Monthly Wage for Fiscal Year 2021 Increases!

The average monthly wage used to calculate off-work benefits is also an important factor in determining how much money an injured worker will received if she has a permanent impairment, as defined by the criteria in the AMA Guides to Evaluation of Permanent Impairment. If the adjuster sends you a letter with your average monthly wage, and it seems too low, do not neglect to do something about it, even if you are not losing time from work. You could lose a significant amount of money by not making sure that the average monthly wage is as high as it should be when it is time to calculate a PPD award.

The average monthly wage at the time of the injury also controls the amount of compensation benefits if the claim is ever reopened in the future. Your original injury may have occurred ten years ago when you were making a lot more money, and you will want that average monthly wage to be used. If you need to reopen your claim now and will be out of work again for another surgery, your benefits will be based on what your income was 10 years ago.

Remember there are two ways to calculate average monthly wage: 1) 84 days wage history, and 2) an one-year’s wage history. The insurance company must use which ever is higher, when establishing your average monthly wage for workers’ compensation benefits. It does not cost anything to check with a reputable attorney about whether your compensation benefits are calculated correctly and whether you should be proceeding on a reopened claim as opposed to a new claim.

Give me a call or send an email for a free consultation if you have questions or concerns about your Nevada workers’ compensation claim or average monthly wage and how it effects your settlement.