Workers' Compensation Attorney

Nevada law (NRS 616C.555), provides that the length of a retraining program that may be authorized is determined by the permanent partial disability impairment percentage (the PPD).   This law does not make a lot of sense in that a an injured worker may have a high PPD under the AMA Guides to Evaluation of Permanent Impairment, but may be capable of returning to work, particularly if the injured worker’s job was sedentary.   Similarly, an injured worker may rate a low PPD under the AMA Guides , but may not be capable of working unless he is retrained for a long time. Nonetheless, the length of a retraining program is limited by the PPD percentage, regardless of the actual needs of the injured worker.

Injured workers with PPD’s of 1% to 5% may be offered programs up to 9 months long.

Injured workers with PPD’s of 6 to 10% may have programs up to 12 months.

Injured workers with PPD’s of 11% or more may have programs up to 18 months.

Only severely injured workers, or those with exceptional circumstances may obtain programs that are longer under NRS 616C.560.  The law is worded in such a way as to allow insurers to offer less than the maximum allowable length of retraining if the insurer believes that the injured worker could be retrained to gainful employment in a shorter amount of time. A good vocational rehabilitation counselor will try to request the best program for the injured worker.  Realistically, it is very difficult to find suitable retraining programs for injured workers who were earning high wages at the time of their accidents because of the statutory restrictions on the length of retraining programs.

Once a claim is accepted by the insurer or the third-party administrator handling the claim, if the injured worker is off work for more than five days in a row, or five days within a twenty-day time period, temporary total disability benefits (TTD) are paid.   In order to pay TTD benefits, the insurer must first get information from the employer on a wage verification form that asks the employer what the injured worker’s gross wages were in the 12 weeks before the date of the injury.  Any overtime wages the injured worker earned during  those 12 weeks are included.   This earnings history is then used to determine the average monthly wage.   An injured worker can request that the insurer use a one-year earnings history instead of a 12-week earnings history if that would result in a higher average monthly wage.

The TTD paid is then calculated at 66 2/3% of the average monthly wage. For example, if the injured worker’s average monthly wage is $3000, the TTD benefits would be $2000 if the injured worker were off work for one month.   There is a maximum average monthly wage set by the state each year.   Injured workers who earn more than the state maximum average monthly wage will have their benefits based on the maximum average monthly wage, and will therefore receive less than 66 2/3 of what they were really earning before their injury date.

Regulations address how an insurer is to determine the average monthly wage of injured workers who have not worked for 12 weeks before the date of their injury, or how to calculate average monthly wage of piece workers, or union employees, or other individuals with special circumstances.   These regulations also address when the insurer should exclude days from the calculation if the employee had a certified illness or absence from work so that the average monthly wage calculation is not unfairly too low.   Injured workers who were working for more than one employer at the time of their accident may have the wages of the second employer, called the concurrent employer, included in the average monthly wage calculation. However, it is up to the injured worker to notify the adjuster that there is a concurrent employer and to supply that wage information to the adjuster. 

It is very important that the average monthly wage determination is correct, and that it is as high as it should be for the injured worker. This average monthly wage figure is used to calculate benefits when the injured worker is off work due to the injury, and is also used to determine how much money the injured worker receives for a permanent partial disability award.   The average monthly wage established on the claim when it is closed will also be the average monthly wage used if the claim is ever reopened in the future.   Injured workers who request a free consultation with an attorney should always discuss with the attorney whether the average monthly wage calculation appears to be correct.

The Workers’ Compensation Section of the Division of Industrial Relations has asked us to spread the word that they are offering a free training session for employees on injured workers’ legal rights, how to file a claim, what to do if the employer is uninsured, claims process deadlines, etc. on Wednesday, October 14, 1:30- 3:30 pm at the West Charleston Campus of the College of Southern Nevada, Room D-101.  To make a reservation to attend, or to request special accommodations, please email Terry Simi at  tsimi@business.nv.gov.

Work-related traumatic injuries to knees and shoulders are common. These are two of the most complex joints in the body. If an injured worker is not getting better with physical therapy, reduced activity, and drugs to reduce inflammation, the initial treating physician may then order a MRI to better diagnose injury to the ligaments, tendons, and cartilage. The clinic physician may also refer the patient to an orthopedic physician. An injured worker may ask for a specific orthopedic physician on the insurer’s provider list.

Nevada workers in occupations that require extensive kneeling, heavy lifting, squatting and climbing are at risk of meniscal tears to the knees. (The menisci are pads of cartilage that act as cushions between the femur and tibia bones, and they help distribute body weight and minimize friction within the knee joint.) Most meniscal repairs can be done at an out-patient surgical center with an instrument called an arthroscope that creates only small scars. Recovery time is usually quick, and if a partial meniscectomy is done, a 1% whole person permanent partial disability award is given. If you have had a knee surgery on your accepted workers compensation claim and the insurer tries to close your claim without a rating evaluation, you should consult with an attorney right away.

(more…)

I am asked so many questions about whether an injured worker can sue his employer that I have written an explanatory article entitled, “Can I Sue My Employer”.  That article is in the Information Center at https://jhwlawoffice.com/can-i-sue-my-employer.php.  I have included the citations to the Nevada Supreme Court  decisions that discuss the exceptions to the exclusive remedy rule. The exclusive remedy rule is used by employers to defeat lawsuits attempted by injured workers who try to sue employers for  their work injuries.

 NRS 616A.010 and616A.020 are the actual laws that contain the language relied on by employers using the exclusive remedy defence.  Those laws say that injured workers cannot sue their employers for a work-related injury or occupational illness, and that injured workers must instead be  compensated with the benefits provided by the laws that make up our workers’ compensation system in Nevada.  However, if the injury is caused by someone other than the employer or a co-employee, the injured worker may also pursue a personal injury action against the person or entity responsible for causing the injury.  The law then becomes very complex in determining who or what is a “co-employee”, or an “employer” for purposes of determining whether a personal injury lawsuit can be brought.  In Richards v. Republic Silver State Disposal, 148 P.3d 684 (2006), the Nevada Supreme Court reviews the body of case law on this topic.

Not every injured worker needs to hire an attorney, but all injured workers should have access to reliable information on the claims process, what benefits are available, and what to do if the insurer is denying benefits.  Insurers are required to give some written information to injured workers, but those written notices are in fine print, are written so that only lawyers can understand them, and are usually not read.  There are many articles written for injured workers in the  Information Center at https://jhwlawoffice.com/job-injury-information-center.php, with links to all of the important Nevada governmental agencies involved in the Nevada workers compensation system.

Law Office of Jason H. Weinstock, PLLC
2470 Saint Rose Parkway
Suite 310
Henderson, NV 89074
Phone: 702-699-5336

When an injured worker is terminated, and the reason for job termination, are important.  If an injured worker files a claim for an injury after he is fired or layed off, then the law presumes that the claim is not valid.  Recently, the Nevada Supreme Court interpreted NRS 616C.150(2) in Levinson v. Milko, 124 Nev. Adv. Op. 35 (2008), and stated that the injured worker must prove that the injury did not occur after the worker was terminated.

Until recently, it was difficult for injured workers to get temporary total disability benefits while recovering from injuries while they had temporary work restrictions if the employee was fired while working on temporary light duty.  The insurer would deny TTD benefits because the employer would have had light duty work available if the employee had not been fired for cause.   Hearings and appeals officers rarely questioned the reason the employer fired the injured worker.

A.B.281, Section 5 amends NRS 616C.232 to make it clear that only compensation for TTD may be denied.  S.B. 195, Section 4, additionally amends that statute, effective October 1, 2009, to require that only a discharge for gross misconduct will disqualify an injured worker from TTD benefits. 

When an injured worker is taken off work by the treating doctor, the insurer pays the injured worker 66 2/3 of the injured worker’s average monthly wage if it does not exceed the state’s maximum average monthly wage for the year in which the accident occurred.  For injuries occurring after July 1, 2009, the maximum average monthly wage has been certified by Nevada’s Dept. of ESD as $5,208.60 a month.   That means that an injured worker who is unable to work for a month can receive a maximum of $3,472.40 a month in benefits.  As benefits are usually paid every two weeks, and each day in a 14 day period is counted, the bi-weekly benefit check would be $1,603.88.  If the injured worker is earning less than the state maximum average monthly wage, the benefit is 66 2/3 of the actual gross wages earned.  Rate charts showing the maximum average monthly wage going back to fiscal year 1974 are at this link.

The period of earnings that are examined is usually a 12-week period immediately preceeding  the date of the injury.  However, an injured worker may request that the insurer use a one year earnings history, or the full period of employment if it is greater than 4 weeks, but less than a full year, if it would result in a higher average monthly wage calculation.  The regulations on how to fairly calculate an injured worker’s average monthly wage begin at NAC 616C.420.  If an injured worker has an unusual employment arrangement, has more than one employer at the time of his accident, or thinks that the benefits paid by the insurer are less than 2/3 of his typical monthly gross income, a free consultation with an attorney would be wise.   The average monthly wage that is established by the insurer to calculate the amount of temporary total disability benefits is also used to calculate how much a final permanent partial disability award will be at the end of the claim.  It is one of the most important determinations the insurer makes on the claim.

The 2009 legislative session was preoccupied with the economic crisis,  the state budget, and an unprecedented number of bills vetoed by the governor, the majority of which  were promptly reaffirmed by the state assembly and senate. Injured workers seeking reforms didn’t stand much of a chance to make significant changes in this climate.   However, Assembly Bill 281 made some minor reforms to NRS 616C.090, the law allowing insurers to establish exclusive providers lists from which injured workers must choose a treating doctor. 

Section 3 to A.B. 281 clarifies that an injured worker may request an alternative choice of physician from the insurer’s provider list without the insurer’s approval , if the alternative choice is made within 90 days after the injury.   However, expect insurers whose initial denial of the claim is overturned to continue to argue that the injured worker has no right to choose an alternative treating physician after 90 days, even if it takes more than 90 days to get the claim accepted after a lengthy appeals process.

This bill also clarifies that an injured worker may request an alternative physician from the insurer’s provider list after 90 days, and if the insurer denies this request, it must give a specific , written reason for denying the request .  In other words, the insurer can no longer deny the request simply because the request was made  90 days after the injury.  

I think the most helpful change to the law is the addition of a provision in section 3 that a written request for a change of physician that includes the name of the new physician (who is on the insurer’s provider list), will be deemed granted if no action is taken on the request by the insurer within 10 days. Whether the insurer can subsequently issue a written denial with appeal rights under this amendment will undoubtedly be the subject of debate during  future appeals .

Two years ago, in Valdez v. Employers Insurance Company of Nevada, 123 Nev. Adv. Op. 21 (2007), the Nevada Supreme Court held that injured workers with accepted workers compensation claims have no substantive right to choose a treating physician, and can be required to treat with physicians contracted by the insurer or employer to provide care.    The court went on to state in that case that the Nevada legislature may retroactively change the manner in which an injured worker may select a physician, and may impose limits on that selection procedure.   The recent amendment to the law  on selection of an alternative physician takes a little bit of the sting out of the Valedez ruling. This amendment became effective July 1, 2009.