Workers' Compensation Attorney

A question I often get is, “How does Nevada workers’ compensation work?”

As I have explained in a previous blog post, workers’ compensation is an exclusive remedy in Nevada to compensate employees that are injured in the course and scope of their employment. The steps to filing a claim require that there be a specific accident that caused an injury, the injury is timely reported to your employer (as soon as possible, but within 7 days), and that you timely filed a request for compensation by going to the doctor and completing a C-4 form (within 90 days of the injury).

Once the C-4 form is completed, the form will be sent to your employer’s workers’ compensation insurance company and an adjuster will be assigned. Upon receiving the C-4 form the adjuster has 30 days to accept or deny the claim. Whether they accept or deny the claim, my office always appeals the initial claim acceptance letter (click here to find out why). If they send you a denial, you will need to appeal the Notice of Claim Denial within 70 days of the date on the letter. If they accept the claim, you can now begin receiving treatment and compensation benefits you deserve.

They accepted my claim, what benefits should I be receiving?

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More changes from the Division of Industrial Relations just in for 2020! The Division of Industrial Relations (DIR) is a division within the State of Nevada Department of Business and Industry, which is responsible for overseeing workers’ compensation in Nevada. The DIR has been rolling out changes ever since the end of the 2019 Legislative Session and will likely continue through 2020.

The most recent changes published by the DIR include changes to the C-1 form (Notice of Injury or Occupational Disease, the C-3 form (Employer’s Report of Industrial Injury or Occupational Disease), and the D-2 (Brief Description of Your Rights and Benefits if You Are Injured on the Job). DIR says the effective date of the new forms is January 24, 2020, despite their notice of the new forms not going out until February 11, 2020.

The C-1 form is a form that an injured worker completes with their employer, notifying their employer that they have suffered an injury or occupational disease. This form was last revised in 2005. The only change appears to be the inclusion of the phone number, website, and email for the Office of the Governor Consumer Health Assistance.

The C-3 form is a form that the employer completes and returns to the workers’ compensation insurer to report the employee’s injury or occupational disease. This form was last revised in 2005, as well. The only change appears to be the website for the Office of the Governor Consumer Health Assistance.

The D-2 is a notice that is sent to injured employees by the workers’ compensation insurance company informing them of their rights and benefits pursuant to NRS 616C.050. The last revision to this form was in 2018. The only change appears to be the website for the Office of the Governor Consumer Health Assistance.

Although these changes are not significant nor will they effect how a claim made by an injured worker for workers’ compensation benefits will be handled, it is good to see any type of progress being made at the DIR. Keep an eye out for more changes from the Division of Industrial Relations in the future, which may impact workers’ compensation claims.

In a previous blog post I wrote about SB 381, which will affect the provider lists (list of approved workers’ compensation doctors) the workers’ compensation insurance companies maintain. The DIR is now tasked with maintaining and updating, their much outdated, list of workers’ compensation doctors, from which the insurance companies can compose their own lists. Expect the DIR to have their lists complete at the beginning of July.

Give me a call or send an email for a free consultation if you have questions or concerns about your Nevada workers’ compensation claim and DIR forms.

Workers’ compensation insurance is a requirement for all employers, with one or more employees. It is meant to protect employer’s from negligence lawsuits when an employee is hurt in the course and scope of employment, but also meant to give the injured worker a remedy and to provide medical and compensation benefits when they are hurt at work. Workers’ compensation insurance, however, doesn’t cover every injury just because it happened at work. Below are the top reasons a Nevada workers’ compensation claim gets denied.

1. Course and Scope.

To have a valid workers’ compensation claim, your injury must have happened within the course and scope of your employment and that your injuries arose out of your employment. Put simply, this means that you were working at a time you were scheduled to be there, and you were performing your typical job duties when the injury occurred.

An example of an injury that would satisfy the course and scope element would be: A roofer, who’s job duties include going on top of a house to install a new roof, falls off a roof, while working on a job he was told to do. An example of an injury that would not satisfy the course and scope element would be: This same roofer showing up on his day off because he forgot his phone on the roof and falling off because he was hungover from the night before.

2. Accident and Injury.

The accident and injury elements, which are required for a valid workers’ compensation claim, tend to be the reason for most of the claim denials I see. The statute defines accident as “unexpected or unforeseen event happening suddenly and violently, with or without human fault, and producing at the time objective symptoms of an injury.” Injury is defined as a “sudden and tangible happening of a traumatic nature, producing an immediate or prompt result which is established by medical evidence.”

In short this means there must have been some event that lead to some type of identifiable “injury” that can be causally connected by medical evidence. A doctor must state that the accident that occurred is the cause of injury you have now. The first place this medical evidence often shows up is on the C-4 form where the doctor has a question that reads, “From the information given by the employee, together with medical evidence, can you directly connect this injury or occupational disease  as job incurred?” This question goes to both the injury element and the course and scope element. A “no” in this section can be a reason to deny a claim within itself.

An example of an injury that would satisfy the accident and injury element would be: The roofer falling off the roof and fractures his back. In that scenario, the accident is the event that took place, where he fell off the roof, and the injury is the pain he immediately felt in his back and the resulting fractures. An example of an injury that would not satisfy the accident and injury element would be: A roofer that develops cancer…unless, a doctor states that it is the roofer’s occupation that caused the cancer.

3. Notice.

Not timely reporting a claim is another big cause of a claim denial. In Nevada, you have seven (7) days to notify your employer of an injury that occurred at work and 90 days to inform the workers’ compensation insurer. The statute on reporting the injury to your employer says to tell them “as soon as practicable, but within 7 days.” This means ideally, you should let your employer know anytime you are injured at work, as soon as it happens, whether you think it is serious or not.

If you tell your employer the day you got hurt, but do not see the doctor for a month you can still timely file a claim! The 90 days to inform the insurer also starts the date of the injury, but it allows some time for you to see if the injuries will heal on their own (however, I do not recommend this). The notice to the insurer is done when you complete a C-4 form, request for compensation, at the doctor’s office. This form lets the workers’ compensation insurance company know that there are medical benefits that need to be paid as a result of a work-related injury.

Although there are many other reasons a claim may get denied, not meeting the basic requirements for a valid workers’ compensation claim account for most common denials. Workers’ compensation insurer’s like to argue that failed drug tests or pre-existing conditions you not to meet a basic requirement discussed above.

Give me a call or send an email for a free consultation if you have questions or concerns about your Nevada workers’ compensation claim and reasons for a claim denial.

The deadline for appealing a Hearings or Appeals Officer’s decision is 30 days. This is a shorter time frame than the typical appeal deadline for determinations from the adjuster. Deadlines to appeal are quick, frequent, and jurisdictional in workers’ compensation. Jurisdictional in this sense means that if you fail to appeal a Hearing Officer or Appeals Officer’s Decision and Order within 30 days the next judge can dismiss the appeal.

All determinations made by the workers’ compensation insurance adjuster are appealable in Nevada. The timeline to appeal a determination is 70 days, unless the adjuster forgot or intentionally does not give appeal rights (in such a case you can appeal at any time). Examples of common appeal determinations by the workers’ compensation adjuster include approval or denial of treatment, claim acceptance, claim closure, average monthly wage, denial of temporary total disability, and denial of mileage reimbursement.

If you disagree with an adjuster’s determination and request a hearing within the 70 days, then after your hearing the Hearings Officer will issue a Decision and Order within 15 days after the hearing. The Hearings Officer can either “affirm” (the determination of the workers’ compensation adjuster stands), “remand” (order the workers’ compensation adjuster to issue a new determination), “reverse” (order the workers’ compensation adjuster to change their determination), or a mixture of the above (i.e. “affirmed and remanded”).

If you disagree with the Hearings Officer’s Decision and Order, you have only 30 days to appeal this decision to the Appeals Officer. Once you appeal the Hearings Officer’s Decision and Order to the Appeals Officer and the Appeals Officer hears the case, they also have 30 days to render a decision after the hearing. The Appeals Officer’s decision must also be appealed within 30 days of the date on the Decision and Order, if you disagree.

An appeal of the Appeals Officer’s Decision and Order requires you to file a Petition for Judicial Review in District Court. The standard of review in District Court for an appeal of an Appeals Officer’s Decision and Order is different than the Appeals Officer’s review of a Hearing Officer’s Decision and Order. District Court judges are only reviewing the record from Appeals Officer’s hearing for an error of law or abuse of discretion… no new evidence can be presented.

Keep an eye on dates when appealing a Hearings or Appeals Officer’s decision!

Give me a call or send an email for a free consultation if you have questions or concerns about your workers’ compensation claim and appealing a determination or Decision and Order.

One of the questions I receive from my clients is, “why do worker’s compensation attorneys appeal the initial claim acceptance letter and subsequent scope determinations?” This is a good question and often doesn’t make sense to injured workers’ when they are receiving the treatment they want or need.

One of the reasons attorney’s appeal the initial claim acceptance letter is because the law requires the workers’ compensation insurance adjuster to accept or deny the claim within 30 days. This means that adjusters are issuing an acceptance letter often based off the C-4 form and the diagnosis listed therein. These C-4 forms are normally completed at a Concentra Medical Center, CareNow Urgent care, hospital, or some other urgent care. The doctors at these urgent cares and hospital emergency rooms are often general practitioners and not specialists. It is rare that you see specific diagnoses on a C-4 form. More common diagnoses are sprains or strains of the injured body part.

“Look, I am getting treatment for my back, why do I care that they accepted it for a lumbar strain?” Ok, the adjuster accepted your claim for a lumbar sprain 30 days after you completed the C-4 form. That’s great! You can now start treating for your industrial injury and even request to see an orthopedic specialist. This leads to another reason why workers’ compensation attorneys appeal the initial claim acceptance letter. Fast forward, now you are treating with the orthopedic specialist and they say you have herniation at L4-5 and radiculopathy (numbness and tingling down your leg caused by a nerve impingement from the herniation). The fact that the herniation and radiculopathy were not included in the claim acceptance could impact your permanent partial disability evaluation, impairment percentage and your future reopening rights.

“How,” you ask. The claim acceptance letter states what it is that the workers’ compensation insurance company is accepting liability for. Although a rating doctor is supposed to rate you based on your medical records and physical examination it isn’t unusual for an insurance company to contest a permanent partial disability evaluation because the doctor gave you a percentage for a diagnosis that the insurance company never accepted. For example, a diagnosis of unverified radiculopathy can be a 5-8% impairment percentage, where as an argument can be made that acceptance with out the radiculopathy (just a strain) would only warrant a 0%.

Further, let’s say your claim was only accepted for a lumbar strain (even though you have a herniation at L4-5) and two years after your claim was closed a doctor says your condition worsened and you now need surgery. Adjusters love to make the argument that the claim was only accepted for the strain and deny the future surgery as new injury.

In short, not appealing the initial claim acceptance letter can forfeit your right to add additional body parts and diagnoses to the industrial claim and effect your settlement, treatment, reopening rights.

Give me a call or send an email for a free consultation if you have questions or concerns about your workers’ compensation claim acceptance letter.

When you are injured at work, your treating physician gives you a physician’s progress report (PPR) or a work activity report. These reports inform you, your workers’ compensation adjuster, and your employer of any work restrictions you may have. The PPR will guide your light duty job offer.

On the PPR there is a place towards the bottom of the page where the workers’ compensation doctor states whether you are released to “full duty/no restrictions,” “Temporarily Totally Disabled,” or “released to restricted/modified duty.” Temporarily totally disabled means that the doctor determined you can not return to work in any capacity for a period of time. If the doctor releases you to restricted or modified duty, he will then answer the question below as to whether the restrictions are permanent or temporary. The doctor next fills out the following portion describing what activities you are restricted from doing. The Division of Industrial Relations has a D-39 form, which doctors can use, but often doctors have their own similar versions of the form.

Your workers’ compensation doctor should give you a copy of the PPR after every visit. The doctor will also send a copy to the workers’ compensation insurance company. You are required to inform your employer of any work restrictions, changes in work restrictions, placement on temporary total disability, or releases to full duty. Once your employer is informed of your work restrictions, they must determine whether they can offer you a light duty position, that complies with the prescribed work restrictions. If your employer has no light duty work or positions available, then you are considered temporarily totally disabled and the workers’ compensation insurance company must start paying you benefits at 66 and 2/3% of your pay every two weeks.

If your employer does have a light duty position available, then NAC 616C.583 states they must present you with a light duty job offer in writing. Make sure your light duty job offer includes: (1) the net wage you will be paid; (2) the hours you will be required to work; (3) a description of the physical requirements of the position; (4) a description of the job duties; (5) any fringe benefits of the employment—for example health insurance, a company car, bonuses, etc.; and (6) the location of employment. If your restrictions are permanent and your employer cannot offer you light duty or offer you light duty but the actual position is not what was written in the light duty job offer, then the workers’ compensation insurer must commence vocational rehabilitation services.

For injured workers’ that have just temporary restrictions your employer does not need to conform their light duty job offer with the first five requirements, if: (1) the light duty is immediately available, (2) compatible with the physical limitations prescribed by your doctor, and (3) is substantially similar in terms of the location and the working hours to the position that the injured employee held at the time of the injury. Note that if your restrictions were temporary and then become permanent then your employer must comply with all of the more detailed requirements of NAC 616C.583 mentioned in the previous paragraph.

Give me a call or send an email for a free consultation if you have questions or concerns about work restrictions or light duty job offers.

Effective January 1, 2020, the mileage reimbursement decreased for 2020. The rate for workers compensation related travel has been decreased from 58 cents per mile to 57.5 cents per mile. The Division of Industrial Relations publishes the change at the beginning of every year. This years change was announced on January 3, 2020, and can be seen here.

Injured workers are eligible for mileage allowance under NAC 616C.150. Mileage is eligible for reimbursement if the injured worker is (1) traveling to a doctor’s appointment related to his or her workers compensation claim (this includes physical therapy); (2) is using a private vehicle; (3) and travels 20 miles or more one way, or 40 miles or more within one week.

In order to be reimbursed for eligible travel expenses, the injured worker must fill out a D-26 Application for Reimbursement of Claim Related Travel Expenses and submit it to the adjuster. Mileage expenses must be submitted within 60 days of the travel date.

There are a couple of things you can do to make reimbursement as simple as possible for yourself, as well as your adjuster.

1) Fill out one reimbursement form for each month. Submitting multiple forms at separate times throughout the month makes it more difficult for your adjuster to calculate the expenses, and may delay your reimbursement check;

2) Use MapQuest or Google Maps to calculate the mileage. Your adjuster will double check the distance using one of these sites;

3) When following up with your adjuster for mileage reimbursement check, have a copy of the request on hand. Knowing the dates that the request covered will help your adjuster know exactly which expenses you are referring to. Keep in mind that the insurance company has 30 days to issue a mileage reimbursement check. Generally, the check goes out in the mail the day after it is issued.

Give me a call or send an email for a free consultation if you have questions or concerns about mileage reimbursement.

In a previous blog, I wrote about how workers’ compensation is the exclusive remedy for employees to recover benefits for an injury that occurred at work. Does workers compensation cover every injury that occurs at work? No, workers’ compensation doesn’t automatically apply to all injuries just because they occurred at work. The injury must arise from the course and scope of employment. Meaning, if an employee faints hits their head and is injured at work, they must show that the cause of them fainting arose from their employment and not some personal pre-disposed health condition.

If you are injured at work and the injury arose out of the course and scope of your employment, the Nevada Industrial Insurance Act was developed to protect injured workers and their employers. Workers’ compensation insurance protects employers by offering them an insurance policy that pays medical and other benefits to the injured worker, when they have a legitimate claim.

So how does workers compensation protect an injured employee?

The Nevada Industrial Insurance Act creates a method for injured workers to recover for their injuries without having to prove fault. Unlike a traditional negligence claim, which requires someone to show their injuries are caused because someone else breached a duty owed, workers’ compensation insurance does not require an injured employee to show their injury occurred because of someone else’s wrongdoing. A legitimate claim can arise because your hand slipped while using a saw or because the ladder you were using broke. This non-fault system, in theory, makes getting coverage much easier than it would be if an injured worker had to show that their injury was in no way their fault. In a negligence claim, like a personal injury car accident claim, your damages or recovery can be reduced by your amount of fault, as Nevada is a comparative negligence jurisdiction. Having a non-fault system is a great protection for injured workers. Intentional acts by an employee to injure themselves are not covered by workers’ compensation.

What does workers’ compensation cover for an injured worker?

If an employee suffers an accident at work that results in a legitimate injury, which is deemed to have arisen out of the course and scope of employment, then workers’ compensation covers medical costs and other financial benefits. Once you have an accepted workers’ compensation claim you are entitled to medical treatment with approved providers. There are no out-of-pocket co-pays, like when you see a doctor under private health insurance. The workers’ compensation insurance company pays for prescriptions and treatment. The workers’ compensation insurance company will even reimburse you for the mileage driven to get to your doctors and therapy appointments, if mileage requirements are met.

Financial benefits “covered” by workers’ compensation include: temporary total disability (money for time missed from work, because the doctor says you cannot work or your employer has no light duty), temporary partial disability (money to make up the difference between what you are receiving from your employer and what your daily rate is), and permanent partial disability (a monetary settlement for permanent impairment resulting from the injury).
Other covered benefits can include possible lifetime reopening rights and vocational rehabilitation (training for a new career if you can’t return to work for your previous employer).

I have written blogs on many of the individual benefits workers’ compensation covers/provides, but if you have questions or concerns Give me a call or send an email for a free consultation.

AB 492 was a “two birds with one stone” bill that was passed during the 2019 legislative session. The bill brought much needed changes to Nevada workers compensation law for both stress claims and the calculation of concurrent wages!

Changes Made to the Statute for Stress Claims.

NRS 616C.180 is the statute that governs claims of injuries or diseases caused by stress in Nevada. Section 3 of NRS 616C.180 states that in order for stress claims to be deemed to arise out of and in the course of employment an employee had to show: 1) the mental injury was caused by extreme stress in the time of danger, 2) the primary cause was an event that arose out of and during the course of his or her employment, and 3) the stress was not caused by his or her layoff, termination or disciplinary action taken against him or her.

AB 492 adds an additional way for first responders to prove, by clear and convincing evidence, a stress claim. Rather than the mental injury being caused by “extreme stress in a time of danger,” a first responder need only directly witness a death or grievous injury, or the aftermath of a death or grievous injury, during the course of his or her employment. The death or grievous injury (an injury that shocks the conscience) could be the result of a number of violent events (a homicide, attempted homicide, suicide, or mass shooting). The first responder need not be at the actual event but could be a paramedic that transported a victim to hospital, a police officer that arrived at the scene and saw the aftermath, or a 911 dispatcher that heard the event on the phone. This is a big change that will help protect those that protect us and provide first responders with needed mental health treatment after horrifying events.

Changes Made to Concurrent Wages in the Calculation of Average Monthly Wage.

Previously, NRS 616C.420 mandated that the Administrator of the Division of Industrial Relations (DIR) of the Department of Business and Industry to provide by regulation for a method of determining average monthly wage. The DIR has provided regulation on how to calculate and what to include in average monthly wage calculations in NAC 616C.420-447. NAC 616C.447, specifically, states that average monthly wage calculations had to include concurrent employment if the second employer was covered by a workers’ compensation policy. This is no longer the case.

AB 492 has amended NRS 616C.420 to now allow concurrent wages earned from: active or reserve military; any federal, state, territorial, county, municipal or local agency; and a private concurrent employer regardless of whether any of the above have a workers’ compensation insurance policy. This statute change will effectively render NAC 616C.447 irrelevant, regarding the notion of a private employer having to have a workers’ compensation policy for those wages to be included.

This means that if you work on the Las Vegas Strip  as a guest room attendant and drive for Uber your earnings from Uber also need to be included in the average monthly wage calculations. Likewise, if you are a reserve member of the US Army and are hurt will working your “everyday job” as a bartender at a Las Vegas hotel, they must use your earnings you receive from the military in your average monthly wage. These are awesome changes that could largely impact the amount of TTD and other benefits injured workers receive in Nevada!

The changes made to stress claims for first responders went into effect on June 3, 2019. The changes made to concurrent wages in the calculation of average monthly wage went into effect on July 1, 2019, and apply to any/all claims that are open or filled after that date. This means that if your claim was filed on June 1, 2017, and is currently open then the new changes to concurrent wages apply to your claim.

Give me a call or send an email for a free consultation if you have questions or concerns about a stress claim or concurrent wages.

Read more of my blogs on 2019 Nevada workers compensation law legislative changes regarding SB 381 and AB 128!

The Nevada Supreme Court has not previously clarified how to treat an employee who travels for work and is injured while away. The question in Buma v. Providence Corp. Development is whether employees that travel for work are covered by workers’ compensation insurance and to what degree.

The analysis starts with NRS 616C.150(1) that states in order to receive workers’ compensation benefits the employee must show the injury arose out of and in the course of her employment. Is traveling for work within the course of employment? NRS 616B.612(3) states that “travel for which an employee receives wages shall,…, be deemed in the course of employment.” This means that when an employer pays for an employee to travel for work the employee is entitled workers’ compensation benefits.

The next question to be answered is for how long and what purposes are employees covered by workers’ compensation. This is where the Supreme Court in Buma start their clarification of the law. They held that “traveling employees are in the course of employment continuously during their business trips, except during distinct departures on personal errands.”

What classifies as a “distinct departure on personal errands?” The Supreme Court agrees that when travel is an essential part of employment, the risks associated with the necessity of eating, sleeping and ministering to personal needs away from home are an incident of the employment even though the employee is not actually working at the time of the injury. In Buma, the Court says, “to determine whether a traveling employee left the course of employment by distinctly departing on a personal errand, the inquiry focuses on whether the employee was (a) tending reasonably to the needs of personal comfort, or encountering hazards necessarily incidental to the travel or work; or, alternatively, (b) ‘pursuing… strictly personal amusement ventures.’” In other words, does the distinct departure on personal errands involve a personally motivated activity that takes the traveling employee on a material deviation in time or space from carrying out the trip’s employment-related objectives?

The Court said that a traveling employee is entitled to broader coverage than a nontraveling employee and agrees that traveling employees may generally tend to their reasonable recreational needs during downtime without leaving the course of employment. However, the Court does note that recreational activity that is unreasonable in light of the total circumstances of the trip may constitute a distinct departure on a personal errand.

Personal risks generally do not arise out of the employment, so the injury to the employee must be must still show the injury has its origin in a travel related risk. To assess this the Court holds that the category-based approach (is the risk an employment risk, neutral risk, or personal risk) applies to traveling employees. Remember, the Court clearly states that “risks necessitated by travel—such as those associated with eating in an airport, sleeping in a hotel, and reasonably tending to personal comforts—are deemed employment risks for traveling employees.”

In summary, this is a great case that helps clarify how to determine if an injury to a traveling employee is compensable, but it still leaves open the room for argument whether an employee was on a “distinct personal departure on a personal errand.”

The facts in Buma are interesting, the claimant in the case was required to travel to Houston for work. While in Houston, the claimant stayed at a co-workers ranch and died in an ATV accident the night before their conference. The Appeals Officer affirmed the Hearing Officer’s denial of the claim and the District Court refused the hear the Petition for Judicial Review. The Nevada Supreme Court in this case remanded the case back to the Appeals Officer to make a decision on whether the claimant in this case was on a distinct personal departure or not.

Give me a call or send an email for a free consultation if you have questions or concerns about a possible workers’ compensation claim.