Workers' Compensation Attorney

An injured worker asks,  "Is it wrong for my employer to urge me  to use my  health insurance to get medical treatment for my  back that was hurt at work instead of me filing a workers’ comp claim?"

Yes, it is absolutely wrong for the employer to try to persuade you from using your health insurance instead of filing a worker’s compensation claim and completing a Notice of Injury report with the employer.  NRS 616D.120 (1)(a) states that if the Nevada state agency that oversees the workers’ compensation system determines that an employer has induced a claimant to fail to report an accidental injury, the employer shall be fined $1,500 for an initial violation, and $15,000 for a second or subsequent violation.  Even if the employer questions whether the injury happened on the job, the employer must assist the employee with the claims process. The employer can then file an appeal if the insurer accepts the claim if the employer wants to challenge it.

In California, a large grocery chain was recently fined a huge amount of money when store managers were caught trying to discourage injured workers from filing proper workers’ compensation claims for their injuries by telling them they could instead just use their health insurance.   If an injured worker in Nevada forgoes filing a claim and uses health insurance, a claim that is filed later when it turns out that the injury is serious will almost always be denied by the industrial insurer. The unfortunate injured worker then loses lost time compensation benefits, a potential disability award, and perhaps retraining benefits. Do not be pressured into not filing a claim if you are hurt on the job.

This is a real story about a real client.  We will protect his identity by calling him Joe, and by saying only  that he worked for a very large employer.  He hired me near the end of his claim, and after considering what  issues might still come up on his claim,  I agreed to discount my usual fee and represent him for a 20% contingency fee of any permanent partial disability award.

 When the  adjuster would not agree to use one of several rating physicians I suggested, a chiropractor was assigned from the rotating list maintained by DIR to conduct the impairment evaluation. I went with Joe to his rating evaluation, and it was apparent to me that the doctor had not  done very many rating evaluations.  The insurer offered Joe a 13% whole person impairment for his low back injury that included a surgery with a fusion at L5-S1 and ongoing neurological complaints in his legs.    The lump sum equivalent of that award for Joe, given his age and his average monthly wage, was $51,586.

I have advised Joe not to accept the offer, as I think that the AMA Guides call for at least a 20% impairment, and that the correct percentage may actually be over 25%.  I filed an appeal for Joe, and the insurer has agreed to do more diagnostic testing that will help determine whether he is entitled to a 25% PPD award instead of the 13% originally offered.

If the insurer offers a 25% award, the lump sum award will be approximately $99,200.  If that amount is offered, after payment of attorneys fees, Joe will net  about $79,360 for his PPD award.  You can do the math to determine whether it was worth it to Joe to hire an experienced workers’ compensation attorney to help him on his claim.

According to DIR, in 2009, there were 6,616 rating evaluations done in Nevada.  DIR employees in the north and south are required to review only 10% of those rating reports for obvious errors or for questions that should be referred to  the panel of six rating doctorss.  It is anyone’s guess as to the number of injured workers who should have received a higher PPD but didn’t, because of errors by the rating doctors.  If you decide not to have legal representation during the time your claim is open for medical care, at least take advantage of experienced workers comp lawyers who are willing to review your PPD award for free.   

Most people who call me about their Nevada workers’ compensation claims tell me that they just want to get decent medical treatment and get on with their lives.  They usually say something about not pursuing a claim just to get money. They  emphasize that  they like their jobs, and they don’t want their employers to think less of them because they have hired a lawyer to  get them medical care or  benefit checks after trying to deal with an insurance company that acts like they don’t exist.  However, all injured workers should know a few things about money awards.  Here are a few facts about money and your workers’ comp claim:

1. The amount of off work compensation benefits (TTD benefits)  depends on how much money you were earning 12 weeks before your injury, unless special circumstances apply.   

This is the basic rule used to calculate benefits, and there are special circumstances that may apply to you that will allow an increase in the average monthly wage figure used by the insurer to calculate your benefits.  There is also a maximum average monthly wage and maximum benefit that changes on July 1 of each year.  Right now, the maximum amount an injured worker can receive each month she is off work for an injury occurring after July 1, 2009 is $3,472.40.  As this average monthly wage figure is also used to calculate any permanent partial disability award at the end of your claim for any permanent injuries, you will want to make sure that the insurer is using the highest possible figure on your claim. For more information on how benefits are calculated, click here.

2. There is no pain and suffering awarded on a work injury claim.

Any money paid on a work injury claim is paid strictly in accordance with a set of laws and regulations governing workers’ compensation claims in Nevada.  Money damages awarded by juries (or judges) for "pain and suffering", or lost of enjoyment of life, or loss of earning capacity, are related to personal injury lawsuits and not workers’ compensation claims.  There are some circumstances that would allow an injured worker with a work injury claim to also file a personal injury lawsuit against the person or corporation responsible for the accident ,so long as the employer or co-employee is not sued.  In those circumstances, pain and suffering damages might also be awarded on the personal injury action.

3. Money awarded on work comp claims are for permanent injuries only.

You might have a terrible accident at work, causing you to be hospitalized for weeks, but if  you fully recover for your injuries, you  might not be entitled to a permanent partial disability award.  There are two types of money settlements typically involved in a Nevada workers’ compensation claim involving serious injuries.  One is the permanent partial disability award that is determined by a rating doctor when the treating physician releases you from further care.   The rating doctor must apply the criteria in the AMA Guide to Evaluation of Permanent Impairment, 5th edition, to arrive at a whole person percentage of impairment.  That percentage is then inserted into a mathematical formula that also uses your average monthly wage, and your chronological age to arrive at a lump sum of money for your permanent impairment.  You must be familiar with the AMA Guides in order to know whether the percentage of impairment is correct and whether you should accept the offer by the insurer or file an appeal.

4.  Insurers sometimes close files without offering PPD awards when  awards should be given.

The insurer only schedules an impairment evaluation if the treating doctor states that it is likely that the patient has a ratable impairment.  The problem is that many surgeons do not know what a "ratable impairment" is under the AMA Guides, and these doctors think that there is no ratable impairment if the patient is able to return to work full duty.  I have seen many cases where injured workers were entitled to thousands of dollars on their claims for their injuries, and they never knew to question the insurer’s closure of their claims without a rating evaluation.

5. Rating doctors make mistakes frequently, costing injured workers thousands of dollars.

Theoretically, several rating doctors should arrive at the same percentage of impairment if several doctors were to examine and rate an injured worker.  In reality,  the same injured worker can be rated by several rating doctors, and the percentages come out differently. That can make a huge difference in the amount of money offered by the insurer. Again, either you or your attorney should know how to apply the criteria in the AMA Guides so that you are offered the correct and highest percentage of impairment.  You also need to consider that it now costs $650 to obtain a second rating from the rotating list of rating doctors, and you don’t want to spend that amount if the first percentage offered is correct.

6. A vocational rehabilitation lump sum buy out can be negotiable.

The second type of lump sum of money an injured worker can receive on his claim is a vocational rehabilitation lump sum buy-out.  If the injured worker has permanent work restrictions, and if the employer does not offer a permanent light duty job, he is entitled to vocational rehab benefits.  Those benefits usually consist of either a program of retraining, or a lump sum of money for the injured worker to go away and find a job or retraining on their own.  It used to be that the insurer could offer 1 cent for a lump sum buy-out  if it wanted to be particularly nasty. and the injured worker’s only option was to accept a retraining program.  Now, the law requires the insurer to offer at least  40% of what the insurer would have to pay in monthly benefits if the injured worker had instead opted for a retraining program.  What many injured workers do not know is that insurers can sometimes be persuaded to offer more than the minimum lump sum.

7. You can’t put a price on quality medical care.

The most important consideration in any work injury case is the quality of the medical care provided to the injured worker. Money is never a sufficient substitute for an injury that could have been treated by faster and better medical care.  Injured workers must treat with doctors on their particular insurer’s provider list.  It is essential that the injured worker obtain information as to which of the doctors on that list show consistently  good surgical results, and which are fair to injured workers.

8. It may be difficult to predict how much money an injured worker will get for a PPD award at the outset of the claim.

When an injured worker comes for a consultation at the beginning of his claim, I may not be able to predict how much money will be awarded for a permanent partial disability award, because we don’t know to what extent the injury will heal after more months of treatment.  All of the people I accept as clients want to get better.  ( People who impress me as only trying to obtain money are not clients I want. )  Some injuries, such as amputations, are easily ratable under the AMA Guides, and I can give the injured worker an estimate of what to expect.  Other injuries depend on loss of range of motion, or neurological testing, or a review of operative reports to determine an approximate percentage of impairment, and that is information that is usually unavailable at the beginning of a claim.

Our office will have a booth for the first time this year at the Cinco de Mayo festival at Sunset Park on Sunday, May 2, 2010,  from noon to 7 pm.   I will brush up on my Spanish-speaking skills, and will have plenty of my Injured Workers’ Guide to Nevada Workers’ Compensation Law in Spanish to hand out.  As even I would be bored by a purely educational booth hosted by a lawyer, I will have a teenage superstar weight lifter on hand to try to establish some new national records.  Check out this link to Pat "Buff" Mendes latest amazing lift on You tube.  We will also have some cool prizes to give away.  Please stop by to meet me and my great staff! 

Incidentally, I discovered that Division of Industrial Relations has designated April as Hispanic Safety Month.   Free safety classes are offered in Spanish for Nevada’s Hispanic employees on how to remain safe in the workplace.  DIR reports that in 2007, almost 30% of all non-fatal injuries involved Hispanic employees.

I asked Family Law attorney Stacy Rocheleau of Rocheleau Law Group to write a guest blog post for me on workers’ compensation benefits and divorce.  The Rocheleau Law Group handles divorce, child custody, and guardianship matters and offers a free legal guide.  Their website is at www.rocheleaulaw.com, and phone is (702) 914-0400.  This is what Attorney Rocheleau wrote:

Are you getting a divorce and wondering who will receive the income your spouse received from a work related injury? 

This question is often asked and the answer can be complex. Earnings by either party could be community property, so any income received from a work related injury would need to be decided by the court in a divorce. Who receives the income will depend upon how the award is classified.

There are at least four different ways that workers’ compensation benefits can be classified:

Treatment as wages. If the payments are designed to replace lost earnings due to a work-related injury, the payments would be characterized as wages. Those payments received during marriage are marital property; those received before or after marriage are individual or separate property.

Treatment as personal injury award. A workers’ compensation award could be classified as a personal injury award, on the basis that they are meant to compensate for physical injury rather than lost wages. In that case, the award would then be considered that spouse’s separate property.

Treatment as disability pay. In some instances, a wage replacement analysis will be used, but the workers’ compensation payments would be treated or classified as disability pay. In that event, any compensation received during marriage is community property and compensation received after marriage is the injured worker’s separate property.

Treatment according to when the right was acquired or earned. Even despite a situation where a workers’ compensation award will in part or in whole replace post‑divorce wages, the award is community property if the right was acquired or earned during the marriage. 

Further complicating the analysis is that work related injury benefits, or workers compensation benefits, can be awarded to an employee injured on the job either as a lump sum or in weekly installments.

In Nevada, workers compensation benefits are generally treated as a wage replacement and any payments received during the marriage would be considered community property, unless part of the award is specifically labeled as a personal injury award for disfigurement, pain, or suffering, and then that portion is considered separate property.

There are two types of light duty for injured workers in Nevada:  temporary light duty, and permanent light duty. The rules are different for each type of light duty.

Temporary light duty is light duty work offered by the employer while the injured worker is still undergoing treatment with a doctor. Permanent light duty is a job offered by the employer after the treating physician gives the injured worker final work restrictions.

Each time the employee visits the treating doctor, he should receive a physician progress report (PPR).   The doctor writes what the temporary work restrictions are at the bottom of that PPR. The injured worker is responsible for taking a copy of the PPR to his employer and asking whether the employer will be offering light duty work that accommodates those restrictions. If not, the injured worker receives temporary total disability benefits from the insurer.

The employer may or may not want to offer temporary or permanent light duty work. If temporary light duty work is offered, the employer should send a written confirmation to the employee within 10 days, but most employers don’t do this. If the temporary light duty work consists of work within the same classification as the pre-accident employment, the employee’s hourly wage should remain the same.  If the light duty work is in a different job classification, the employer may pay only 80% of the injured worker’s pre-accident gross wages.

The rules regarding permanent light duty are much stricter. A permanent light duty job offer must be in writing, it must allow the injured worker 7 days to respond, and the employer must intend for the job to be a permanent position. The work must not be demeaning or degrading, and it must be approved by the treating doctor. If the employer does not offer a permanent light duty job within 30 days of receiving a copy of the injured worker’s permanent work restrictions, the employee is referred

What should I do when my employer gives me work that is not within my temporary work restrictions?

1.  Make sure that your supervisor has a copy of your current work restrictions that are written on your most recent physician progress report. Your employer is entitled to rely on what the doctor has written as your restrictions.  If your employer contends that the work is not outside the particular restrictions as written, then you may need to return to see your doctor as soon as possible to have more restrictions added. Ask your doctor to be very specific in writing your restrictions.  Meanwhile, you must try to do the job assigned until you get new restrictions.

2. If it is clear that the work you are asked to do is outside the restrictions written on the physician progress report, talk to your supervisor first.  Then, go up the chain of command, or to your human resource person to further discuss the problem.

3. If the employer persists in asking you to do work beyond what the doctor has written you can do, then contact your workers’ comp adjuster.  In addition to calling the adjuster,  fax or mail a note to the adjuster telling him  that your employer is not cooperating with your work restrictions.  Attach a copy of the physician progress report with your restrictions, state what the employer was insisting that you do, and state when you discussed the problem with your supervisor.  Mail or fax  a copy of this letter to your employer.

4. After you have gone through the above 3 steps, give the employer a reasonable period of time to correct the problem.    If the employer persists in asking you to do work that your doctor does not want you to do, then give your employer written notice that you will not report to work until the employer gives you suitable light duty work. Do not quit your job.  Simply state that you cannot return to work until temporary light duty work is provided that falls within the written work restrictions..  At the same time,  request in writing  that the adjuster pay you temporary total disability benefits.  If the adjuster denies benefits, file an appeal.

The above steps should document that you handled the situation correctly, and that you are entitled to payment of temporary total disability benefits if the employer never does offer appropriate temporary light duty work.

Let’s face it.  The insurers and employers have a huge advantage over the injured worker who is caught in the claims process, because they know the rules and you don’t.   And if you are a carpenter or a bricklayer, or a nurse, it isn’t your business to know what the law says about light duty employment, or when an injured worker can change doctors.   However, you can even the playing field by educating yourself about what employers and insurers can and cannot do.

I have condensed the most important laws into a guide booklet for injured workers, and this guide is free for the asking.  Just call my office and give us your mailing address, or stop by and pick one up.   If you need more information, or need a question answered  immediately, chances are that I have already written about the  topic and have an article posted on this blog or in the Information Center on my website.  If not, and it is a general question about the law, feel free to ask me a question.  While I cannot give legal advice over the Internet to people who are not my clients, I can often provide valuable information to lead you to the correct answers to your problem.

What you don’t know  can  hurt you.  Arm yourself with reliable information so that you can make intelligent decisions affecting your future.

One type of physician that injured workers commonly encounter is the physiatrist,  also known as a physical medicine and rehabilitation (PM & R) physician.   While the name  sounds similar to a psychiatrist,  a  physiatrist  treats physical injuries as opposed to mental or behavioral problems. A surgeon may refer her patient to a physiatrist after a surgery when additional physical therapy is recommended.  Or, a physician who sees an injured worker in a clinic setting for the first couple of visits may refer the patient to a physiatrist when it appears that the injury  may require  more care over several weeks or  months.  

Physical medicine and rehabilitation (PM&R), or physiatry  is a branch of medicine which aims to enhance and restore functional ability and quality of life to those with physical impairments or disabilities. Physiatrists must complete four years of medical school,  one year of internship and three years of residency.   Physiatrists specialize in restoring optimal function to people with injuries to the muscles, bones, tissues, and nervous system. 

A physiatrist who treats an injured worker usually coordinates the medical care if several specialty physicians are required to treat different injured body parts.  If surgery has already occurred, or no surgery is necessary, the physiatrist may order physical therapy or may prescribe medication while the patient recovers from his injuries. When the patient is stable and does not need more treatment, the physiatrist may then order a functional capacity evaluation (FCE) to assist him in determining the patent’s permanent work restrictions.  Finally, the physiatrist tells the adjuster whether the injured worker should be rated for permanent impairment or not. 

 If you are not satisfied with the physiatrist that is currently treating you for your work injury, you may be entitled to change physicians. Click here to read more about changing physicians.

Effective February 10, 2010, the cost of a permanent partial disability evaluation on a Nevada workers’ compensation claim is $650.99 for one or  two body parts.  An injured worker who does not agree with the percentage of impairment found by the assigned rating doctor may obtain a second rating evaluation by paying this same fee for a second rating.   However, if the injured worker does not think an exam is necessary in order for a second rating doctor to conclude that the first rating doctor made an error, he may pay the assigned second doctor $324.85 for a records review and report.  Click here for the  form to request the name of a second rating doctor from the rotating list maintained by the Division of Industrial Relations.  Read my earlier blog post on how to contest PPD awards.