Workers' Compensation Attorney

It’s good news for injured workers  that at the last hour of the 2009 legislative session, on May 31, 2009, the Assembly and the Senate reaffirmed Senate Bill 195, overturning the governor’s veto. Section 3 of S.B. 195 requires that permanent partial disability evaluators continue to use the 5^th edition of the American Medical Association’s Guide to Evaluation of Permanent Impairment.  Had this bill not passed, rating doctors would have been required to use the 6^th edition of the Guides. It was the consensus among rating doctors and attorneys for injured workers that most awards for serious injuries under the 6^th edition would be significantly lower.

The law regarding notice of claim closure was amended to require that the insurer notify the injured worker whether or not a rating evaluation was being scheduled, and the reason why a rating was not being scheduled, in section 6 of Assembly Bill 281.   Currently, the Notice of Claim Closure form does not give the injured worker any information about the scheduling of a rating evaluation. This amendment to the law will at least put an injured worker on notice that his treating physician has informed the insurer that there is no likelihood of impairment, and that a rating is not being scheduled. The injured worker can then evaluate options for obtaining a rating at his or her own expense with a doctor assigned from the rotating list, and perhaps file an appeal of the insurer’s determination to close the claim without a rating.   

Section 7 of S.B. 195 allows a rating doctor to consider psychological impairment during a rating for those rare stress claims accepted under the narrow confines of NRS 616C. 180.   Only physical impairment can be considered for all other claims.

Children, spouses, or other legal dependents of employees whose industrial injuries result in death or permanent total disability may be eligible for a scholarship with the College of Southern Nevada.  This scholarship was established by the Nevada Self Insurers Association.   For more information on how to apply for this scholarship, contact Jamille Watson (702) 651-5831 at the College of Southern Nevada Foundation, Sort Code WE32, 6375 West Charleston Blvd., Las Vegas, NV 89146-1164.

If you reside in another state and were injured while working temporarily in Nevada, and you have a a Nevada claim, you may want to move back home to have family and friends around to help you while you still need medical care.  While it can be more difficult to obtain medical treatment and benefits when you are in another state, with some careful planning, it can be done.  Either you, or your attorney, should do the following :

1. Notify your adjuster in writing of your new address and phone number.

2. Before you move, find a doctor who is willing to treat you and who will accept what the Nevada fee schedule provides for payment for medical services.  Provide this link to the doctor so that the doctor’s office has the Nevada fee schedule.

3. Request authorization from the adjuster for out-of-state care with the doctor you have chosen to treat you, and tell the adjuster that the doctor will accept the Nevada fee schedule.  Occasionally, the adjuster will have a network of doctors in other states, and you will have to choose a treating physician from that network.  While prior authorization is necessary under the regulations, it cannot be arbitrarily denied by the adjuster.

4. Have the doctor complete the same  physician progress report form the Nevada doctors use to let the adjuster know whether you have work restrictions or should be off work completely.  Be aware that if your employer had temporary light duty work available for you when you moved from Nevada, you will not be entitled to compensation benefits unless your doctor takes you off work completely.

5. If your doctor states that you may  have a permanent impairment when you are released from care,  the adjuster should pay you to return to Nevada to have a rating evaluation.  The adjuster should schedule the rating appointment  within 30 days of receiving your doctor’s last report.

6.  If you run into problems and must file appeals on adverse letters from the adjuster, call the hearings division and request that you be allowed to participate in the hearing by telephone if you do not have an attorney representing you.

Managing out-of-state claims does take more planning and often  more effort with doctors who are not familiar with Nevada’s workers compensation system.  However, out-of-state care may be very important to you if you are seriously injured and want to go home for care.  You do need to be aware that while medical care should not be comprised with your move back home, your entitlement to other benefits may be affected. 

I am surprised that no one is discussing making changes to Nevada’s exclusive remedy law as one of many proposed solutions to the workplace safety problem. The recent U.S. House and Senate Committee hearings on Capitol Hill concerning OSHA’s role in investigating workers’ fatalities prompted a suggestion from Representative Dina Titus this week that criminal penalties be imposed against offending employers. Certainly that is one way to further deter repeated safety violations. A criminal penalty will give a wake up call to those employers who are more concerned with profit than the wellbeing of their employees. But lost amid this discussion of deterrence is how to better address the needs of the families of those who are seriously injured or killed through an employer’s flagrant disregard of safety precautions.

Currently, for fatalities after July 1, 2008, the maximum death benefit available under Nevada workers’ compensation law to the surviving spouse and dependent children of a Nevada worker is $3,410.82 a month. Compensation benefits for on-the-job injuries and deaths in Nevada are determined by the Nevada legislature. It is too late for Nevada’s legislative session, due to end on June 1 in Carson City, for state legislators to consider changes to the exclusive remedy defense available to employers. The exclusive remedy defense shields employers who comply with the law and purchase workers’ compensation insurance from any liability for the workplace accidents of their employees. Injured employees or family members of deceased workers are limited to the benefits provided under workers’ compensation law, even if it can be shown that the accident was preventable and due to the gross negligence of the employer.

Why not increase the benefits if an injured worker or the family can show that the injury or death was caused by the employer’s repeated violation of safety rules? Families may welcome being able to participate in the penalty assessment process under the proposed federal Protecting America’s Workers Act, but I think Nevada families would be most appreciative of additional financial aid to replace the lost income of the loved one. We have two years before the next legislative session in Nevada. Let’s start working on some overdue changes to the law that would act as a both a deterrent to extremely sloppy safety practices and as additional financial relief to the victims of those unsafe practices.

Congratulations to Alexandra Berzon, a journalist with the Las Vegas Sun, for recently winning the Pulitzer Prize for Public Service for her investigative reporting last year of the 9 construction workers who died at CityCenter in a 16-month time period. Ms. Berzon continues to report on the reforms, or rather the lack of significant reforms to ensure workplace safety, during the current legislative session in Carson City.  Ms. Berson also reports on efforts by attorneys and injured workers’ advocates to make other necessary changes in the law to the workers’ compensation system in Nevada.

   Ms. Berzon contacted me about six months ago for information about my clients’ experiences in filing complaints with the Division of Industrial Relations for violations of the law by third-party administrators.   She impressed me as being extremely thorough in her search for accurate facts about whether the current system of requesting fines and penalties from the Division of Industrial Relations adequately protects and compensates injured workers with legitimate complaints.  I was happy to also offer her my opinion that it is woefully inadequate.  Thank you to Ms. Berzon for her excellent work in letting the public know what really happens to injured workers in Nevada.

 Some questions I receive from injured workers have nothing to do with workers’ compensation law, but are instead about how to make it through the difficult times following a work accident.   Few people can pay all necessary bills for very long on workers’ comp benefits of only two-thirds of their average monthly wage. Most injured workers must dip into or deplete their savings if they have a serious work injury. Also, if medical insurance isn’t  available any longer because the injured worker can’t return to his pre-accident employer, dependent family members then go without necessary medical care.  It is even worse for the injured workers who must litigate denial of their claims in order to obtain any benefits at all after months of the appeals process.    Yet, people do survive these tough times, and they find a new appreciation for those friends, co-workers, employers, and family members that can be counted on to provide support.

Recently, a client gave me a very interesting book entitled The Survivors Club by Ben Sherwood.  This book is about survivors of various sorts of tragedies, including an airplane crash in the Andes, a failed suicide attempt from the Golden Gate Bridge, the brutal gang attack of the Central Park jogger, cancer, a mountain lion attack, etc.   There isn’t a chapter on how to physically, emotionally, and financially survive a serious work injury, but I could match some of my clients’ experiences with those in the book.   The book discusses common personality traits the survivors share. I see many of those traits in those clients who go on to lead happy, productive lives despite their life-changing work accident.  What I really found useful for my clients, however, was  its website.  This website has excellent information on how to deal with a permanent injury, how to handle financial problems following a reduction in income,  links to alcohol or substance abuse help, and divorce survival tactics.  

Depression following a work injury is common. If it becomes severe, the injured worker should discuss it with whichever doctor is the authorized treating physician so that it is documented. Then, the injured worker can request that the adjuster authorize a consultation and treatment with a psychologist. While Nevada law does not allow an award for permanent psychological injuries that do not result from a physical injury to the brain, an injured worker may at least get treatment for psychological problems that result from the work injury. 

If you need immediate help in the Southern Nevada area to deal with depression, please contact the So. Nevada Adult Mental Health Services at (702) 486-6000. You may also find other phone numbers and links for mental health services at www.mhds.state.nv.us.  If you or someone you know is having suicidal thoughts, please call the suicide prevention hotline numbers at 1-800-273-8244 and    1.877-885-467.

I’ve asked several clients to help me post some good news about their accomplishments in vocational rehabilitation programs, and tips to help fellow injured workers get through the tough times.   So, please stay tuned.

Our new website is now up and running.  It features an Information Center with articles on various topics concerning Nevada workers’ compensation law, and the claims process. If you don’t find an article in the Information Center or on this blog that addresses a topic that would help other injured workers also, feel free to suggest a topic to me.