Workers' Compensation Attorney

The adjuster employed by the third-party administrator (TPA) is the person who controls most of what happens on your claim. Many injured workers mistakenly think that it is the employer that makes claims decisions. While the employer may have considerable influence with the claims adjuster, the adjuster may also make decisions your employer does not like. You therefore need to know the name of your adjuster, his or her phone number, and ideally, their email address. The clinic where you initially obtained medical care should be able to tell you the name and phone number of the adjuster if you cannot get that information from your employer before you get a letter from the adjuster either accepting or denying your claim.

Try to communicate with your adjuster in a way that provides you with a record of the communication so that you can file an appeal if the adjuster fails to act on your request within 30 days. Keep a copy of any letter that you send, and print any emails. Make a note of the date and time of phone conversations. Be sure to have your claim number ready when calling the adjuster, and put the claim number of all written or electronic communications.

Make it easy for the claims adjuster to agree to whatever it is that you are requesting. For example, if you are requesting a benefit check, make sure that you have provided the adjuster with a copy of the physician progress report that takes you off work, or that gives you work restrictions that your employer cannot accommodate. Or, if you are requesting a consultation with another physician, obtain the last report from your current physician, as the adjuster will want to review that before acting on your request to see a different doctor.

Be pleasant when speaking with the adjuster, and give the adjuster a reasonable period of time to act on your requests. Ask the adjuster when you can expect an answer, and do not call repeatedly or daily. Most adjusters are reasonable and try to do the right thing. Most also have too many files to handle properly. Think of ways you can make the adjuster’s job a bit easier so that your requests are acted on quickly.

My office receives at least one phone call a week from an injured worker who is unhappy with how their attorney handled their contested case at a hearing.  Unfortunately, it is usually too late for me to help those callers.  A recent decision from the Nevada Supreme Court illustrates one reason why it is too late for me to help.

Kathy Garcia, an employee of Scolari’s Food & Drug in northern Nevada, filed an occupational disease claim, asking for medical care for pain in her arms and shoulder that she thought was aggravated by her work duties.  Her claim was denied.  Garcia’s lawyer decided not to use medical reports at the appeals hearing that might have helped Garcia win her appeal, and Garcia lost her case.  Garcia then asked a  district court to send her case back for another appeals hearing so that she could use the medical reports while acting as her own attorney.

The Nevada Supreme Court decided against Garcia, with a majority of the justices ruling that any negligence of Garcia’s attorney in not putting the reports into evidence did not amount to a “good reason” to remand the case for another hearing.  Two dissenting justices disagreed and wrote that an injured worker should get their day in court with all relevant evidence if they can show that their attorney was negligent.  Garcia v. Scolari’s Food & Drug, 125 Nev. Adv. Op. 6 (1/29/09).  The moral of this story is that an injured worker needs to be careful when  selecting an attorney.

1. The claim acceptance or denial letter.

If your claim is denied, no medical or compensation benefits will be paid, and the clinic that provided emergency medical care will start billing you. You must file a request for hearing within 70 days of the date of the denial letter on the form included with the denial letter. The only excuse the hearings officer can accept for not filing on time is that you can prove that you did not receive the letter and form. You must make sure that you gave your correct address on the C-4 claim form, and that you called the third-party administrator if you moved immediately after filing a claim. If you did move and have not received a denial or acceptance letter within 30 days after you first got medical care and filled out a C-4 form, call and find out if the acceptance or denial letter was sent to your correct address.

If you file an appeal from a claim denial letter, and you lose after the first hearing, you must file a further appeal with the Appeals Division within 30 days.

If the letter from the insurer says that the claim is accepted, read what the letter says about what body parts are accepted. If you injured your left wrist, but the letter says that only your left knee is accepted, you need to get an amended acceptance letter, or appeal that letter within 70 days.

2. Average monthly wage letter.

This letter is sent when you have been off work for 5 days in a row, or 5 days within a 20-day time period. It tells you what the insurer has calculated your average monthly wage to be based on wage information provided by your employer. Your benefits will be 66 2/3 of that figure. Even if you were not out of work for long, make sure this figure is correct, as your final award is also based on this figure. If you think the insurer incorrectly calculated your average monthly wage, you need to file an appeal before your claim closes.

3. Letters regarding your medical care.

In the first 90 days of the claim, the injured worker can request a different doctor on the insurer’s provider list, and the insurer must honor that request. So, if you are unhappy with your clinic or doctor, put a request in writing to the insurer asking for a copy of the provider list. Then, send a request to change your doctor to another one on the list. After your claim is 90 days old, the insurer does not have to change your doctor.

4. Any letter suspending, terminating, or denying benefits.

You must file an appeal on the form provided with the letter from the insurer within 70 days or these benefits are forever lost.

5. The letter closing your claim.

If you think you need more medical care, you need to file an appeal within 70 days. If the closure letter does not say that you will be scheduled for a rating evaluation, and you think you are entitled to a PPD award, you likewise need to file an appeal, and follow the procedure for obtaining a rating on your own.

6. The letter offering you a PPD award.

You need to file an appeal within 70 days if you disagree with the percentage of impairment. Even if you do not disagree with the percentage of impairment, do not elect to take the award in a lump sum if you have filed an appeal or intend to because you think more compensation benefits are due for past time periods, or you want more medical care, or you are trying to get treatment for an additional body part.

7. A letter denying vocational rehabilitation benefits.

You need to file an appeal within 70 days as indicated in the letter on the form provided.

8. Letters from medical providers billing you.

You want to call and send a letter advising them that you have an accepted workers’ comp claim, and give the claim number and name and address of the TPA handling your claim. Medical providers should not bill injured workers, but they will if they do not have claims information.

See the articles in the Information Center for more information on the subjects mentioned above, such as How to Obtain a Second Rating, or Are you Entitled to Vocational Rehabilitation?

1. You aren’t the type to hire a lawyer

Let’s say you are concerned that you might not be getting all benefits that are or could be owed to you under your claim. Most lawyers offer free consultations, and you can even have consultations with several different attorneys to compare information given by each. Whatever you say is confidential, even if you don’t hire the lawyer. If you then decide that you do need a lawyer to help you on your claim, look for a lawyer who doesn’t seem like the stereotypical attorney type. Can you see yourself in public with this person, having a cup of coffee? Is this someone you can talk freely to, and someone you feel you can trust? Does the attorney speak in simple terms that all people can understand? Trust your gut instincts. If the attorney seems like he or she is not the type to be an attorney, but seems more like a down-to-earth, genuine person, then that may be the attorney for you if you need one. .

2. You don’t want to sue your employer

Good, because you can’t sue your employer for a work injury under Nevada law unless you can prove that your employer intentionally injured you. A work comp attorney is instead assuring that you are given all benefits under the law. If not, the attorney may involve the insurer for your employer in contested appeals, but the employer is not sued.

3. You don’t want to get fired

An employer in Nevada is not likely to subject themself to a lawsuit by firing the injured worker just for hiring an attorney to represent them on the work comp claim. In fact, in over 15 years of representing injured workers, I’ve never seen it happen. Instead, the injured worker is less likely to get fired because he or she has an attorney advising them regarding employment situations during the time the claim is open, and the employer in turn is more careful in how it deals with the employee.

4. Your adjuster seems nice

Many adjusters are nice people, and many are underpaid and overworked with too many claims to handle properly. Your adjuster works for the third-party administrator (TPA) hired by the insurer for your employer. TPA’s get business by showing insurers that they save money processing claims. Your adjuster is simply not going to be advising you when you should be asking for more benefits or looking out for your best interests. It’s not their job.

5. You don’t think you need one

Maybe you don’t need one, but it wouldn’t hurt to take advantage of a free consultation to have an attorney look at the letters sent from the adjuster and advise you whether it appears that you are getting all benefits you are entitled to. At least obtain whatever free information is offered so that you can better inform yourself about the law and your rights.

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This blog contains the opinions of Virginia Hunt, and the opinions of guest bloggers. It is not intended as legal advice to be relied upon by individuals who do not have an attorney/client relationship and a written representation agreement with Virginia Hunt. No attorney/client relationship is established with readers of this blog without a written representation agreement with Virginia Hunt. Readers of this blog should not think of this blog establishes any attorney/client relationship with Virginia Hunt. This blog is instead intended as general information on Nevada workers’ compensation law. The facts of an individual’s case can change how the law is applied and what law is applicable. Individuals should not assume that particular information in a blog post applies to them.
Individuals with potential or established claims should seek the advice of an experienced workers’ compensation attorney as to their particular circumstances. Virginia Hunt will not be responsible for any action required by you within time limitations that may apply to your circumstances or claim. Time limitations to file appeals are very short for injured workers, so you should not delay seeking the advice of an attorney to guide you.
Thank you.