Workers' Compensation Attorney

When the adjuster sends a letter, either scheduling a rating evaluation, or simply closing the claim, No additional medical treatment will be authorized.  That means that the insurer will also stop paying for any medication refills, and will not authorize return visits to the doctor for more medication.  If the injured worker’s treating doctor reports that the patient will need ongoing medication, then this issue needs to be discussed and resolved with the adjuster before the appeal time (70 days) runs on claim closure.  Additionally, if an injured worker accepts a permanent partial disability award in a lump sum, any appeal the injured worker has filed on claim closure to obtain ongoing medication will be dismissed.

Nevada statutes and regulations governing workers’ compensation claims do not address what the insurer’s obligations are to provide ongoing medication after the treating doctor recommends that that claim be closed. The best way to deal with this issue is to negotiate with the adjuster to reach a reasonable agreement.  Assuming the treating doctor makes it very clear that ongoing medication is necessary, many insurers are willing to pay for medication for at least a year after the claim is closed and are agreeable to letting the injured worker receive his PPD award also. Insurers are usually only willing to do that when the injury is very serious.  If the insurer agrees to ongoing medication for a year, the insurer will want to make a new determination after a year after asking the doctor whether more ongoing medication is necessary. 

Other insurers take a more obstinate stance and refuse under any circumstances to pay for any medication or doctors’ visits after claim closure. The injured worker can appeal the claim closure letter, and try to persuade a hearings or appeals officer  to order the insurer to provide ongoing medication.  While it is possible to obtain such an order, the problem is that this appeals process takes months.  Again, the injured worker can not take his permanent partial disability award in a lump sum while the claim closure/medication issue is being litigated.  Many injured workers cannot afford to let their award money sit with the insurer while trying to get ongoing medication through the appeals process.

Obtaining ongoing medication after claim closure is difficult, and most injured workers will be unable to obtain it without an attorney.  If the injured worker is able to obtain it without an attorney,  it is essential that any agreement obtained from the adjuster be in writing.  Adjusters change frequently, and an oral agreement will not be enforceable. 

Maximum total disability benefits, payable when an injured worker is off work, are determined each fiscal year by the Nevada Department of Employment, Training, and Rehabilitation, Employment Security Division.  Maximum benefits are 66 2/3 of this maximum average monthly wage.  (If the wage earned on the date of injury is less than the maximum average monthly wage, the benefit is 66 2/3 percent of the actual earned wage.)  For the first time, the maximum average monthly wage for injuries is less than the prior year’s maximum average monthly wage.  The maximum average monthly wage for injuries occurring 7/1/10- 6/30/11) is $5,179.05.  The maximum bi-weekly compensation is $1,588.02.

If an injured worker is holding two jobs at the same time he or she has a work accident  (or files a claim for an occupational disease), that worker is said to have concurrent employment.   Concurrent employment is not the same as consecutive employment.  Consecutive employment occurs when a worker has a job with one employer, terminates that employment, and then has a job with a second employer.  There are special rules that entitle an injured worker to increased benefits where the injured worker has a concurrent employment at the time of his industrial accident or occupational disease claim.

Even though the worker is injured on one job only, the worker is entitled to give information to his adjuster showing the amount of wages earned  with the second, concurrent employer  in the 12 weeks or full period of employment before the job accident.  Those concurrent wages can then be combined with the wages earned from the first employer when the adjuster calculates the injured worker’s average monthly wage before paying compensation benefits.   Including those additional wages from the second employer can often bump up the average monthly wage to the maximum allowable benefit, and this can also greatly increase the amount of the permanent partial disability award.

If an injured worker can return to only one of his jobs as a result of the work injury, he may be entitled to the difference between what he earns after taxes on the one job and what his compensation benefit would be if he were unable to work at all.  In that case, the injured worker should send in a copy of the wage stubs and ask his worker’s compensation adjuster to pay the difference.

The FCE (functional capacity evaluation) often serves to let the physician off the hook on trying to please both his patient and the insurer on the issue of work release restrictions. The insurer may be pressuring the doctor to give a full duty work release, while the patient keeps telling his doctor that he does not think he will be able to go back to his pre-injury occupation or employer. When the doctor order a FCE before giving final work restrictions, then his job is easier because he can simply adopt the findings of the independent physical therapist who gives the FCE.

The FCE is a 2-3 hour test given at a physical therapy facility. Generally, the tests consist of lifting, walking on a treadmill, bending, carrying, and doing other physical movements that may or may not have anything to do with the physical activity you actually do at work. The FCE has validity criteria built into the various tests that can supposedly detect when the patient is not giving a full effort.

If you fail enough of the validity criteria and the test comes back invalid, then you run the considerable risk of your doctor no longer believing that you are incapable of returning to your old job.   Or, your doctor may tell you that his only option is to return you to work full duty when a FCE is invalid. That is not true, however. Your doctor may instead disregard the FCE results, and based on his own exams of you, may decide that you do have permanent work restrictions. Few doctors are unwilling to override an invalid FCE.

If your doctor gives you a full duty work release following your invalid FCE, then you can expect your benefit checks to stop immediately. Moreover, if you don’t try to go back to work full duty, your employer may terminate you.

The best way to handle this situation is to file an appeal when the insurer stops your benefit checks. Secondly, assuming you have some money left, you will want to pay a different physical therapist to redo your FCE. Expect to pay at least $600 up front for a repeat FCE. While this is a lot of money for an injured worker, it is essential to obtain a valid FCE showing that you should have work restrictions.  Otherwise, you will not be able to convince a hearing officer that your benefits should be reinstated and that your doctor should review the results of the second FCE. Some attorneys will advance the cost of a second FCE if the attorney agrees to take you as a client.  

Occasionally, one of my clients asks me to sign a lien agreement with  a company offering to advance money to the client based on the client’s potential permanent partial disability award at the end of his claim.  I have never agreed to sign one of these agreements.  These advance settlement firms have been around a long time in the personal injury world, but are now beginning to show up with greater frequency in the  workers’ compensation arena. The Las Vegas Review Journal has an article today on the state’s efforts to regulate these litigation finance companies, focusing in particular on the company ownd by TV reality star Rick Harrison of "Pawn Stars".

There are many reasons I refuse to get involved in any manner with these financial settlement loan companies.  I understand that many people are desparate for money, particularly when their claim is denied, and there is no income and no medical care.  However, from what little information a couple of these companies have been willing to share with me, these companies have no understanding of how workers’ compensation claims are settled in Nevada.  They do not even know that legally, the only liens that are allowed on workers’ compensation claims are child support judgments.  I recommend that my clients not sign agreements with these types of companies with regard to permanent partial disability award settlements.

While there are no recent statistics, I know from my experience that the majority of claims filed by injured workers in Nevada for carpal tunnel syndrome are initially denied.  Carpal tunnel syndrome presents as numbness, tingling, and pain primarily in the first three fingers and the thumb side of the hand.  It results from compression of the median nerve that travels through the wrist.  Symptoms often occur or worsen at night and after sleeping.  In a typical case, the injured worker begins to have symptoms, and only after months of hoping that the symptoms will go away in time, files a claim when the symptoms are so bad that they interfere with work.

From the injured worker’s perspective, because symptoms get worse with work activity, work must be the cause of the problem.  However, when the worker reports the problem to her employer, and then goes to the designated clinic to file a claim, the examining physician usually is unwilling to state that the problem is work-related.  Most often, the diagnosis on the C-4 claim form is "tendinitis", and the doctor puts a question mark by the question asking whether the occupational disease or injury is work-related.

Adjusters usually deny the claim when they see that the physician is unable to connect the problem with work activity.  Some times the adjuster denies the claim "under medical investigation", but is willing to allow the worker to see a hand specialist.  If the adjuster simply denies the claim, then the worker must use private insurance or pay for a consultation with a hand specialist to obtain a report that more accurately diagnoses the problem and more definitively states whether the problem was caused by the job.

An experienced hand specialist (orthopedic physician) may not need additional diagnostic testing to diagnose carpal tunnel syndrome.  However, insurers usually want to see positive nerve conduction studies and electromyography to accept a CTS diagnosis.  Secondly, the hand specialist must be able to report that there is a direct causal connection between the CTS and the patient’s occupation.  In order to do that, the hand specialist must exclude the nonoccupational risk factors for CTS that include increased age, pregnancy, diabetes, rheumatoid arthritis, and obesity, and sex. ( There is a higher incidence of CTS for females).  

The hand specialist should take a detailed medical history so that nonoccupational risk factors can be excluded, and the patient should discuss in detail the work activity and job requirements that the patient believes contributed or caused the symptoms.  If possible, provide the hand specialist with a copy of the employer’s  written physical  description of the job.  The hand specialist will be looking for occupational risk factors of repetitive hyperflexion and twisting of wrists, prolonged use of handheld vibratory tools, forceful and repetitive grasping, and awkward wrist positions.  The scientific data on whether prolonged use of computer keyboards causes CTS is conflicting according to the AMA Guides to the Evaluation of Disease and Injury Causation (2008).  However, I have found that the reputable local hand surgeons in Las Vegas will draw their own conclusions as to each patient when keyboard activity is questioned as to the cause of CTS.

Carpal tunnel syndrome can be covered under the Nevada Occupational Disease Act.  The key to successfully presenting a claim and having it accepted is proper medical documentation of the problem and its relationship to the worker’s particular occupational activities.  These are difficult claims, however, because the initial treating physician often does not have sufficient information to state that it should or should not be accepted as a workers’ compensation claim.  Denied claims must be appealed within the 70 day appeal time regardless of whether the worker has completed her own medical investigation with her own doctors.  These claims can be successful with the help of a skilled attorney.

Following sharp criticism by federal authorities of Nevada’s failure to appropriately  address the rash of workplace deaths and employers’ safety  violations in the recent past, a state legislative subcommittee met and agreed on several legislative proposals.  The sub-committee’s recommended bill drafts for the 2011 legislative session include imposing higher fines on employers, forwarding information on deaths and workplace accidents to a local district attorney or state attorney general for further action, and keeping families of fatally injured workers updated on investigations.  It does not appear that any of the recommended proposals included increased benefits to injured workers or to the families of deceased injured workers if it can be established that the injury or death was caused by the employer’s disregard of safety rules.  That’s too bad, as I think increased benefits are needed to get the attention of employers who repeatedly disregard their employees’ safety in trying to complete projects quickly and at less cost.

Buzzwhack.com has coined the term drag factor for a person, issue, or process that delays a key decision.   More injured workers cite the drag factor and their frustration caused by unnecessary or excessive delay in getting action on their claim as the primary reason for hiring an attorney to help them.  Here are my 5 secrets for overcoming the drag factor and getting the adjuster to act :

1.       Be reasonable in what you request the adjuster to do.

        For example, when you  request a change of physicians, be aware that the adjuster cannot authorize you to treat with a doctor who is not on the insurer’s provider list. So, don’t bother asking to treat with a doctor who isn’t on their list. Similarly, don’t ask the adjuster to pay you benefits if your doctor hasn’t  taken you off work. Know what your rights  are before you make your request to the adjuster.

2.       Know how long the adjuster has to respond to your request.

Most of the time, the adjuster has 30 days to make decisions on your claim, and to respond to a request. However, the law provides that the adjuster must respond to a physician’s request for authorization for a medical procedure, or diagnostic testing, within 5 working days. Allow at least a week for the adjuster to review and act on your request before you call the adjuster. Bombarding  the adjuster with daily phone calls, faxes or emails simply annoys the adjuster and is less likely to get a quick response.

3.       Ask in writing, and keep a copy of your request.

 Because appeal times are triggered by written denials or a failure by the adjuster to respond to a written request, you must follow up any phone conversation with the adjuster with a written request.   You want to document that you made a request for action by the adjuster, and that it was denied, or that here was no response by the adjuster.

4.       File an appeal if there is no response. 

You can file a request for hearing form with the Department of Administration if the adjuster fails to respond to your written request after 30 days. Attach a copy of the written request you made to the appeal form.  Don’t file an appeal until you have first given the adjuster 30 days to respond.

5.       File a written complaint with the DIR.

If the adjuster is continually ignoring your requests for action on your claim, write a letter complaining about what is happening on your claim to the DIR. Make sure that you copy the adjuster on this letter. Often just writing such a letter is enough to prompt the adjuster to take appropriate action on   your claim.

Hay dos tipos de trabajo ligero para trabajadores heridos en Nevada:  El trabajo ligero temporario, y trabajo ligero permanente.  Las reglas son diferentes para cada tipo de trabajo ligero.

Trabajo ligero temporario es trabajo ligero ofrecido por el empleador mientras el trabajador herido todavía está bajo tratamiento con un médico.   Trabajo permanente ligero es un trabajo ofrecido por el empleador después de que el médico que esté a cargo del tratamiento le da de alta al trabajador herido con restricciones de trabajo permanentes al final del caso.

Cada vez el empleado visita al médico que está a cargo de su tratamiento, debe recibir un reporte sobre su progreso  médico (PPR). El médico escribe si el trabajador tiene  restricciones temporarias de trabajo están en la parte de debajo de el reporte de su progreso ósea el PPR. El trabajador herido es responsable de tomar una copia del PPR a su empleador y preguntar si el empleador ofrecerá  trabajo ligero que acomoda esas restricciones. Si no le ofrecen trabajo ligero, el trabajador herido recibe beneficios totales temporarios de incapacidad (TTD) del asegurador.

El empleador puede o no puede querer ofrecerle trabajo temporario o permanente ligero.  Si el trabajo ligero temporario es ofrecido, el empleador debe enviar una confirmación escrita al empleado dentro de 10 días, pero la mayoría de los empleadores no hacen esto. Si el trabajo ligero temporario consiste en el trabajo dentro de la misma clasificación como el empleo antes del accidente, el sueldo por hora del empleado debe ser el mismo. Si el trabajo ligero del trabajo está en una clasificación diferente de trabajo, el empleador puede pagar sólo 80% del sueldo que ganaba antes del accidente.

Las reglas con respecto al trabajo permanente ligero son mucho más estrictas. Una oferta permanente de empleo ligero del deber debe ser por escrito, debe permitir al trabajador herido 7 días para responder, y la intención del empleador debe de ser  ofrecer una posición que sea permanente. El trabajo no debe ser humillante ni debe ser degradante, y debe ser aprobado por el médico a cargo de su  tratamiento. Si el empleador no ofrece un  trabajo permanente ligero dentro de 30 días de recibir una copia del reporte sobre su progreso  médico (PPR) cual describe restricciones permanentes de trabajo para el trabajador, el empleado es referido para rehabilitación vocacional.

The March/April 2010 edition of the AMA Guides Newsletter reports that a review of over 6,000 cases, mostly from California, resulted in 80% of them questioned by expert rating reviewers.   For the very small number of Nevada cases reviewed for this study , the error rate was much less, with an average difference of 3% whole person impairment.  This study confirms what most attorneys who represent injured workers know about rating evaluations.  There is a tremendous difference in ratings by the various rating doctors authorized to perform ratings in Nevada, even though the rating doctors should theoretically reach the same numbers by following the methods in the Guides.

In discussing the causes of errors found in ratings done under the AMA Guides, 5th Edition, the newsletter authors state that it is more likely that an erroneous rating will be higher, rather than lower than is appropriate.  The greatest source of error is examiner inexperience or lack of knowledge.  Spine injuries are most likely to be rated incorrectly.  Errors were also found in ratings for shoulder injuries and carpal tunnel syndrome, while knee injury ratings were less likely to be wrong.

Because of the high incidence of error in rating evaluations, I always ask the adjuster to agree with me on which rating physician will do the initial rating evaluation.  Adjusters  want to avoid having to hire a defense attorney to litigate the PPD if the injured worker appeals from the PPD offer, and they want to close the claim as soon as possible. Adjusters will therefore often agree to use a rating physician who is well known and has a reputation for performing objective and accurate ratings.  However, if the adjuster does not agree to use a particular rating physician with the injured worker’s attorney, the adjuster is obligated to use the rating doctor assigned by the Division of Industrial Relations from the rotating list of rating doctors. 

I sometimes see cases where the injured worker who is not represented by an attorney agrees with the adjuster to use one of the rating doctors on a short list sent by the adjuster.  It puzzles me that someone without any information about the doctors on that list would agree with the insurer to use one of the doctors suggested by the insurer instead of requiring that the insurer use the doctor assigned.  Invariably, the unknowing injured worker agrees to be rated by  a rating doctor that  I would never choose for my client.  The injured worker must then pay $650 up front for a second rating and appeal the offer based on the first rater’s exam.