Workers' Compensation Attorney

I asked local bankruptcy attorney Sam Benevento to provide an answer to the question:

Will filing a bankruptcy affect your workers’ compensation claim? Here’s Sam’s answer:

To understand the answer to this question, it helps to understand the difference between a Chapter 7 and a Chapter 13 bankruptcy. Chapter 7 is a “straight” bankruptcy. Under Chapter 7 you attempt to discharge your debts without payment. You can protect (exempt) your principal assets in chapter 7 (like a residence, household goods, car, retirement account, and other things) but non-exempt assets can be seized by the Chapter 7 Bankruptcy Trustee to pay your debts. Chapter 13, on the other hand, is a reorganization under which you voluntarily make payments to your creditors through the Chapter 13 Bankruptcy Trustee and thereby repay a portion (or sometimes all) of your debts.

Workers’ compensation benefits are exempt under Nevada law. NRS 616C.250. This means that if you file a chapter 7 bankruptcy, the Bankruptcy Trustee will not be able to seize either your monthly benefit or your lump sum settlement. However, the benefits are counted as income to determine whether or not you are eligible to file a chapter 7 in the first place. Also, if the benefits are deposited into a bank account with other funds (i.e. commingled), they may be at risk of seizure. So be sure to keep any lump sum settlement completely separated from other funds.  

In Chapter 13, the Trustee does not seize assets under any circumstances, so your workers’ compensation benefits are always protected. However, benefits received both prior to and after filing the Chapter 13 may be used in calculating the amount of your bankruptcy payment.

You should also be aware that worker’s compensation benefits may be garnished directly by a child support creditor.

Sam Benevento has been practicing bankruptcy law in Nevada for over 20 years and exclusively represents Debtors (that is – people and small business that need to file for bankruptcy protection). If you think that you may need to file, call Sam at 702-433-2000 to schedule a free consultation.

For many injured workers who are unable to return to their old jobs due a permanent injury, a formal program of retraining with a vocational rehabilitation counselor may not be an option, or may not be the best option.  Hispanic employees who have difficulty reading and writing English, for example, will not be able to participate in retraining programs, because almost all programs are taught in English.  Many  injured workers will have to come up with a way to market other skills they have, or will have to start their own businesses.

Nevada law prohibits an industrial insurer from funding self-employment efforts directly.  However, those injured workers who want to, or who must start a small business will at least receive a vocational rehabilitation lump sum buy-out that will help.  The amount of a vocational rehabilitation lump sum buy-out will vary, depending upon the PPD rating of the injured worker, and whether the insurer can be convinced to pay more than the minimum amount the insurer must offer.  See my article onlump sum buy-outs for more information.

Because a vocational rehab counselor is primarily involved in enrolling injured workers in formal retraining programs, the injured worker may not have much help in setting up his or her small business.  I have provided some useful links below for the injured worker who is just starting a small business:

– Checklist for starting a small business by theIRS

– Business name registration for sole proprietor in Clark County

– State business license

– Visit the Nevada Department of Taxation for more information on necessary licenses

The State of Nevada, Division of Industrial Relations, has approved the Nevada Medical Fee Schedule effective February 1, 2010.  It provides that rating physicians are entitled to charge $650.99 for a rating evaluation that includes up to two accepted body parts.  The rating doctor may charge an additional $217.41 for each additional body part.  Injured workers who contest the initial rating evaluation obtained by the industrial insurer are required to adhere to this fee schedule when obtaining a second rating evaluation from a second rating doctor.  However, pursuant to NRS 616C.100,  a hearings or appeals officer may reimburse the injured worker the cost of the second evaluation if the hearings or appeals officer finds that the second rating should be used as the basis for the permanent partial disability award.

The State of Nevada DIR announced that mileage reimbursements to injured workers traveling to and from medical care or for vocational rehabiliation purposes has been decreased from 55 cents a mile to 50 cents a mile, effective January 1, 2010. 

The regulations for mileage reimbursement of travel expenses are found at NAC616C.150.  The request for reimbursement should be on the DIR form D-26, which has the rules for reimbursement on the back side.  Please be sure to send in your reimbursement request form to your adjuster within 60 days of the date of your first trip on the form.  Many injured workers make the mistake of waiting until the end of their claim to send in requests for mileage reimbursement, and the adjuster is then only obligated to pay for the last 60 days of qualifying travel. 

Q: What is FMLA?

A: FMLA is The Family and Medical Leave Act of 1993, a federal law that requires employers of 50 employees or more to grant up to 12 weeks of unpaid protected job leave to eligible employees for certain family and medical reasons.   There is a 12-month eligibility requirement, and only serious health conditions are covered. 29 U.S.C.A. Sections 2601, et.seq.

Q: Can my employer reduce my FMLA time while my treating physician takes me off work for my accepted  work-related injury or occupational illness?

A: Yes, your employer can require that you complete FMLA paperwork and can reduce the amount of FMLA time you have available even though you are off work under an accepted workers’ compensation claim.

Q: If FMLA time is running during my work injury, can my employer terminate my job?

A: During FMLA time, your employer may not terminate your job. At the end of your FMLA time, or 12 weeks, if your employer does not have light duty work within your restrictions, and if your employer decides not to extend your unpaid leave of absence, your employer may decide to terminate your employment. Your workers’ compensation benefit checks would continue, however.  You would also be considered for vocational rehabilitation when you have permanent work restrictions if your employer is unable or unwilling to rehire you and offer you a permanent job within your permanent work restrictions.

I receive many phone calls and emails each week asking my help in reopening a closed claim. If you are shopping for an attorney, ask whether the attorney’s fee includes help in reopening your claim. If you need more medical treatment after your claim is closed and your attorney has been paid, you need to know whether you can count on that attorney to help you.  It is difficult to get a new attorney to help you reopen your claim if the new attorney has no way to get paid for helping you.  

 The following questions should help you better understand the reopening process.

1.    Are you sure that you have reopening rights on your claim?

Only injured workers who receive temporary total disability benefits or a permanent partial disability award before their claims are closed have lifetime reopening rights. If your injury costs the insurer less than $300 in medical expenses, and the insurer gives proper notice of claim closure rules, you may not reopen your claim. If you had medical expenses over $300, but you did not receive TTD benefits, or did not receive a PPD award, you may only reopen your claim within a year of its closure.  

2.    Have you gotten a medical report to attach to a reopening request letter?

You must either use your private medical insurance or pay cash  to get a written report from a doctor that states that your injury has worsened from the time your claim was closed.   The insurer will not reopen a claim without this medical report. Attach this report to a letter requesting reopening of your old claim, and reference your claim number.  After the claim is reopened, send the insurer the receipt for your expenses in getting this medical report. If you cannot afford to get a medical report, do not ask to reopen your claim until you can pay for a report to attach to your request. The insurer will not pay for you to get this report- no exceptions!

3.    Does the medical report identify an objective worsening of your injury?

The medical report must clearly state that your injury has worsened. If the report only says that the doctor wants another MRI because you are complaining of more pain, the insurer will not reopen your claim until after you pay for a MRI, and the MRI must show that your injury has worsened.  Your doctor should discuss in what way your injury has gotten worse.   Medical reports that only state that you have increased symptoms are not enough.  If the doctor is only prescribing more pain medication or a few more visits of physical therapy to make you feel better, then your reopening request will be denied.

4.    Does the medical report recommend additional treatment?

Again, If your doctor only states in his report that he wants more x-rays or a MRI before he knows what treatment you need, don’t ask for reopening until after you get more x-rays or a MRI so that your doctor can state what you need.   Give your doctor a copy of your rating evaluation that was used for your permanent partial disability award so that your doctor knows what treatment you have already tried in the past.   Your condition may have worsened, but if no additional treatment is recommended, the insurer will deny your reopening request.

5.    Are you asking for treatment to a body part that was accepted?

An insurer will not reopen a claim for treatment to a body part that was never accepted and treated before the claim was closed.  If you try to reopen your claim to get treatment for some other body part, it can be very difficult to convince the insurer or a hearings officer that you did not know that this other body part was injured in the original accident and  that it now requires medical attention months or years later.  If you aren’t sure what body parts were accepted, review the rating evaluation report that was used for your permanent partial disability award. It discusses what body parts were injured and treated.

It is important that you have all the information necessary to successfully reopen your claim before you send your reopening request to the insurer.   If the insurer denies your request because you did not have complete information, and you do not appeal, or you lose your appeal, you cannot request reopening again for another year. 

For more information about reopening a closed claim, see “How Do I Reopen My Claim?”

After every visit to a treating doctor, the injured worker should make sure that he or she leaves with a copy of  a physician progress report (PPR).  Most doctors who are on insurers’ provider lists use the DIR- approved physician progress report form.  However, some doctors have forms on their own stationery that  have the same information, but in a different lay-out.  If the nurse or assistant checking you out after the doctor’s visit does not offer you a copy of the PPR, please insist that they give you a copy before you leave.  Then read the PPR before you leave the doctor’s office to make sure that the information is correct and that you understand what the doctor has written..  A copy of  this form will be sent to the adjuster handling your worker’s compensation claim, and a copy is often sent to your employer.

The top portion of this form states in abbreviated medical terms what your injury and diagnosis is.   If you have injured more than what is stated in this section of the form, you should have a discussion with the doctor to make sure that he or she has examined and noted all body parts that were injured and that need treatment. 

The second section of the form is important when the doctor releases you from care.  In that section, the doctor checks boxes that state that  you are, or are not, ratable and may have suffered a permanent disability.  If the doctor checks "no" to those two boxes, the adjuster is not likely to schedule you for a permanent partial disability evaluation, which is necessary to receive a settlement for your injury.

The section entitled "Treatment plan" often tells you whether the doctor will be requesting approval for MRI’s, more physical therapy, or a referral to a specialist.    Hopefully, your doctor’s staff will then follow-up with the proper authorization request form so that the treatment plan is approved and put into motion.

The bottom third of the PPR is very important and tells the injured worker whether the doctor has taken you off work completely (totally temporarily disabled), or whether the doctor has given you work restrictions.    If the doctor gives you temporary work restrictions, it is your responsibility to give a copy of the PPR with these restrictions  to your employer and ask whether your employer has work available within these restrictions.    Keep in mind that a copy of this PPR goes to your adjuster, and if the employer tells the adjuster that light duty work is available,  the adjuster will not continue to pay bi-weekly  TTD benefits to you.

Read the PPR before you leave the doctor’s office to make sure you know whether the doctor has released you to  full duty or with temporary work restrictions.  Often injured workers misunderstand what their doctors verbally tell them about returning to work.  You need to know what the doctor writes on the PPR, and if you disagree with what the doctor writes, you want to calmly and politely ask to speak to the doctor again to get a clarification before leaving the doctor’s office.

Some doctors tell injured workers that they are prohibited by Nevada law from taking an injured off work completely.  That is false information.  The doctor has a legal obligation to provide care for his patients regardless of who is paying for his services.  Many doctors, however, feel pressure from adjusters and case managers to give work restrictions instead of taking injured workers off work completely for extended periods of time.   So long as the employer provides work within whatever restrictions the doctor gives on the PPR, the injured worker must show up for work, or take leave without pay if available, or use whatever sick leave is available.   The only other recourse the injured worker has is to request a change of physicians to a more caring doctor.

The Las Vegas Sun ran an editorial on 11/18/09 on the under reporting of work place injuries, urging that OSHA do a better job in accurately counting the number of work injuries and illnesses.  The editorial stated that workers often don’t report an industrial injury because they are frightened that they will be fired, disciplined, or will lose wages from time off if they report an injury.  In these difficult economic times when many Nevadans are lucky to have any work at all, the incidence of under reporting and late reporting is even greater.  However, the reasons for reporting a work place injury are more important than ever.  If you have recently suffered a work place injury, please consider the following:

1. Most injured workers know their bodies well, and can tell within 72 hours whether they have a serious injury that requires medical attention.  Nevada law requires that an employee make a written accident report to his employer within 7 days of the accident.  Most Nevada employers additionally require that employees immediately notify their supervisor of a work-related injury or illness.  Employers and claims adjusters are quick to deny claims when the employee takes a "wait and see" approach to reporting and filing a claim, particularly if the employee first gets medical care using private insurance instead of going to the designated clinic for work injuries.  Many employers will also see a delay in reporting as a deliberate attempt to avoid a post-accident drug and alcohol test.  

2. The risk of having a legitimate claim denied because  the employee was late in reporting the injury far outweighs the risk of an employer trying to take adverse action against the employee for reporting an injury.  In over 15 years practicing workers’ compensation law in Nevada, I have only seen two employers stupid enough to fire employees for the reason that the employees reporting an injury and filed a claim, and both of those employers paid additional money to those clients on the advice of their attorneys to avoid lawsuits against them.  Since 1984, the Nevada Supreme Court has held that an employee may sue his employer directly for wrongful discharge f the employer fires her for filing a workers compensation claim. 

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Under Nevada workers’ compensation law, the final settlement, called a  permanent partial disability award (PPD) is based on 3 factors: 1) the percentage of impairment found by a rating doctor, 2) the average monthly wage of the injured worker, and  3) the age of the injured worker when the award is calculated.  If the average monthly wage was calculated correctly on the claim, and the insurer has the correct age for the claimant,  the  percentage of impairment offered by the insurer is the only basis an injured worker has  for challenging the  amount of the PPD award.  Both the injured worker and the insurer can disagree with the percentage of impairment the rating doctor finds. However, injured workers  who file  appeals of their PPD awards, arguing only that the amount of money offered is too low, almost always lose their appeals. 

An injured worker must be able to show a specific error in how the rating doctor determined the percentage of impairment in order to win an appeal regarding  the amount of the PPD award.  Or, if the insurer is refusing to offer the PPD percentage recommended by the rating doctor, the injured worker needs to be able to argue why that percentage is correct.  A review of the PPD award by an experienced  Nevada workers’  compensation attorney is necessary to help an injured worker with a serious,permanent injury decide whether an appeal should be filed or not, and whether money should be spent getting a second rating report.   Many workers’ compensation lawyers in Las Vegas will review a rating report for free as part of a free initial consultation.

Rating doctors must use a book called the AMA Guides to Evaluation of Permanent Impairment (currently the 5th edition) to determine the PPD percentage.  The Guides are complex.  Many rating physicians, especially new doctors added to the list,  make mistakes.  While the Division of Industrial Relations is supposed to check PPD reports,  it is really up to the injured worker  and her work comp lawyer to find any errors, and to then file an appeal and get a second rating within 70 days.   Injured workers frequently think that the rating doctor has made a math error in adding the percentages in the last section of the report.  An experienced work injury lawyer can explain to an injured worker that  the Guides have charts requiring  that numbers be combined rather than added to arrive at the right percentage.  

If the injured worker’ decides to contest the PPD award, he must first file a timely appeal   on the request for hearing form provided with the PPD offer.  Next, his attorney obtains the name of a rating doctor from the rotating list from DIR.  The attorney then sends a complete copy of the client’s medical records to the assigned rating doctor, schedules an appointment for the rating exam, and pre-pays the current fee for a rating.  The fee for a rating,  effective 2/1/09 through 1/31/10 is $630.80. ( When hiring a work comp attorney, an injured worker should ask whether the lawyer goes with his or her clients to rating evaluations.)  

If the second rating doctor finds a higher percentage of impairment, the report is sent to the insurer.  If the insurer won’t pay the higher PPD, the hearing officer may, or may not, award the higher PPD when the appeal is heard.  There is no guarantee that the second rating doctor will find a greater percentage of impairment.  If the second rating is lower than the first, the injured worker simply withdraws the appeal, and accepts the amount that the insurer has previously offered.  The hearing officer may, or may not order the insurer to pay any higher percentage, and the hearing officer can order the insurer to reimburse the injured worker for the cost of the second rating.  Both the insurer and the injured worker have the right to appeal the hearings officer’s decision to an appeals officer. 

A hearings officer or appeals officer may order a third rating with either a mutually agreeable rating doctor or the next assigned rating doctor from the rotating list.  An injured worker is usually prevented from receiving any portion of his PPD award in a lump sum if the amount of the PPD is appealed, so the injured worker  will want to make sure that he or she has been advised by an experienced Nevada workers’ compensation attorney before deciding to litigate this issue.  Once the injured worker elects to receive a PPD award in a lump sum and is paid, there is nothing that can be done to correct any wrong percentages of impairment.  As it costs the injured worker nothing to have the PPD offer reviewed by a knowledgeable attorney in Nevada workers’ compensation law, it would be unwise to accept an award without first knowing whether it is correct or not.

When an injured worker’s treating physician reports to the insurer that there may be a permanent impairment, the adjuster should schedule an impairment evaluation with a rating doctor. The impairment percentage determined by the rating doctor results in a monetary settlement known as a permanent partial disability award (PPD).  Rating doctors are chiropractors and physicians who have taken a test on how to determine permanent impairment using the criteria in the AMA Guides to Evaluation of Permanent Impairment (currently the 5th edition).  Those doctors’ names are on a rotating list of rating doctors  maintained by the State of Nevada Division of Industrial Relations.

If the injured worker or his attorney do not agree with the adjuster on a particular rating doctor to do the exam, the adjuster must schedule the exam with the next doctor assigned from the rotating list.  A chiropractor may perform the rating exam if the injury is to the musculoskeletal system (spine, knees, shoulders, feet, hands, etc.).  If the injury is to internal organs or is very complex, only a medical doctor will be assigned.   Only qualified eye doctors rate vision impairment.  The rating doctor cannot be a doctor who has treated the injured worker or who has been asked to do a consultation.

The rating takes place at the doctor’s office. The adjuster is responsible for sending all of the medical records before the exam.  However, it is not unusual for records to be missing.  Almost all rating doctors allow the injured worker’s attorney to be present for the exam.  The insurer must pay for the initial rating, and the cost of a rating depends on the number of body parts injured.  Effective for 2/1/09 through 1/31/2010, the cost for up to two body parts is $630.80.

The AMA Guides give detailed instructions to the rating doctor on how to determine an impairment percentage for each body part.   Many injuries are rated by measuring how much motion is lost in the joint.  Some injuries are easy to rate, such as amputations. However, most injuries require multiple measurements and depend on the doctor’s ability to apply the Guides correctly.  There are often significant differences in rating percentages depending on which doctor is doing the exam.

Not every injury requiring a surgery is ratable.  An injured worker’s ability to return to work is not used to determine impairment. Pain is not ratable, but injuries to particular nerves can be rated.

The rating doctor sends his report to the insurer within 14 days of the exam.  The insurer must then make a written offer within 14 days of receiving the report.  The offer must be based on the percentage of impairment determined by the doctor, or the insurer must explain in writing why the insurer disagrees with the percentage.  Injured workers who disagree with the percentage given by the rating doctor, or with a lesser percentage offered by the insurer, may file an appeal and obtain a second rating from another rating doctor assigned from the rotating list. (For more information go to the blog "I Disagree with My PPD Rating".)

The PPD award is calculated by using the percentage of impairment given by the rating doctor, and the average monthly wage of the injured worker, and the injured workers age at the time of the award.  It is necessary to have the actuarial tables and the correct statutory formula to correctly calculate the award. (See DIR forms 9a and 9b).   Injured workers with the same percentages of impairment for the exact same injury will receive different PPD awards depending on how much money they were making at the time of their accidents, and how old they are.

An injured worker may accept a PPD award in a lump sum, or may elect to receive the award in installments until she is 70 years old.  Awards taken in a lump sum are reduced to present value. If the injured worker’s impairment was greater than 25%, only the equivalent of a 25% PPD can be taken in a lump sum.  The percentage over 25% is paid in installments.

Although the PPD percentage is not based on an injured worker’s ability to return to work, the percentage does govern the length of a retraining program that can be offered if the injured worker is entitled to vocational rehabilitation services.  (See blogs and articles on vocational rehabilitation for more information.)

Please note that this is only a summary of how permanent partial disability awards are determined in Nevada.  Pertinent statutes andregulations are:  NRS 616C.100, NRS 616C.490, NRS 616C.495,  NRS 616C.110, NAC 616C.1162, NAC 616C.103.  Many attorneys offer a free review of a PPD rating report for signs of obvious errors.