Workers' Compensation Attorney

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.

Vocational rehabilitation is one the few things/programs I like about the Nevada workers’ compensation system. In short it offers injured workers the ability to learn a new trade and find a job, when they can no longer return to their previous employment. See my blog on vocational rehabilitation for more information.

The conclusion of the 2019 legislative session brought forward so much needed positive changes to the Nevada workers’ compensation system and the Nevada Industrial Insurance Act. One of those positive changes included the passing of AB 128, which will modify parts of NRS 616C.555, NRS 616C.555, and NRS 616C.595. These changes went into effect on July 1, 2019, and apply to all claims that are open without a vocational rehabilitation plan in place.

Length of vocational rehabilitation programs has changed!

The length of a vocational rehabilitation is determined by the percentage of permanent partial disability (PPD) impairment the injured worker receives. This is unchanged. What has changed is the time frame allotted for vocational rehabilitation programs has been extended.

A PPD award of 0% to 5% used to only entitle an injured worker to a vocational rehabilitation program of up to nine (9) months in length. Now, a 0% PPD award allows an injured worker a vocational rehabilitation program not to exceed nine (9) months, but a 1-5% PPD award has increased to a vocational rehabilitation program not to exceed twelve (12) months.

A PPD award of 6-10% would equate to a vocational rehabilitation program that was not to exceed one (1) year, and a PPD award of 11% or more would equate at most an eighteen (18) month vocational rehabilitation program. Now, a PPD award of 6% or more can get an injured worker a vocational rehabilitation program of up to two (2) years.

The amount of the minimum lump sum buyout (LSBO) has increased!

Injured workers have always had the option to choose a lump sum buyout instead of going through a vocational rehabilitation program, if they are entitled to such a program. Previously, the LSBO could not be less than 40% of the vocational rehabilitation maintenance due to the injured worker. Now, the minimum LSBO must be at least 55% of the vocational rehabilitation maintenance due to the injured worker.

The ability to seek a new vocational rehabilitation program is no longer left up to the insurer!

It used to be that if an injured worker is unsuccessful in a vocational rehabilitation program it was up to the insurer to authorize a second plan if they determine good cause for a second plan is shown. Now, it is no longer in the hands of the insurer to determine if good cause is shown. Further, it used to be, if the insurer denied a third vocational rehabilitation program, this could not be appealed by the injured worker. Now, an injured worker can appeal the denial of a third vocational rehabilitation program.

These are big changes to vocational rehabilitation that aim to benefit the injured worker. Well done 2019 legislature!

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

Occupational diseases are what you probably think they are… a disease or illness that you have developed or contracted through your employment. Different from an occupational injury, occupational diseases/illnesses often have gradual onsets rather than one specific traumatic occurrence.
Occupational diseases can be anything from carpel tunnel syndrome, silicosis, mesothelioma, heart disease, lead poisoning and even cancers. Occupational diseases and the statutes governing them can be found in NRS 617.

Reporting requirements for occupational diseases versus occupational injuries have one significant difference. The timeline for reporting an occupational disease starts the moment “an employee or, in the event of the employee’s death,… has knowledge of the disability AND its relationship to the employee’s employment.” This means that once the employee or the employee’s dependents knows of BOTH the disease and it being caused by the employee’s work environment/occupation, they have seven (7) days to notify the employer of the disease and that it occurred at work. For example… if an employee of a painting company is diagnosed with mesothelioma and a month later the doctor finds out that the painter often worked in environments with asbestos, determining asbestos to being the cause of the mesothelioma, the employee has seven (7) days from the day the doctor made this connection to inform the employer. The timeline for reporting the claim to the insurance company also begins the moment the doctor causally connects the disease to your employment. You have 90 days from that moment to notify the insurer via filling out a C-4 form.

If you have been diagnosed with a cancer or disease that you may have been caused by your work environment or occupation, speak to your doctor about this and find out if she thinks they may be related to your job.

Showing that the occupational disease arose out of and in the course of employment is often the toughest part of showing a compensable workers’ compensation claim. The disease needs to be incidental to the character of the business and not independent of the relation of the employer and employee. The disease does not need to have been expected or foreseen but must have had its origin connected with the employment.

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

Just because you have a workers’ compensation claim does not mean you cannot also sue the person that caused your injury! However, if the person that caused your injury was an employee or due to the negligence of your employer, you are stuck with just a workers’ compensation claim.

What are examples of when I can have both a workers’ compensation claim and a personal injury claim?

Sometimes, a work injury may be the result of a car accident or busted piece of equipment. In these cases you may also a personal injury claim. If you are a runner for a law office and rear-ended by a FedEx truck, while making a delivery, you may be able to pursue both a workers’ compensation claim, with your employer, and a personal injury claim, against the FedEx driver. If you are a construction worker and you are tasked with installing windows, while you hang from the roof by a harness, and the harness breaks, you may have a workers’ compensation claim and a personal injury claim against the company who made the harness. An experienced attorney may be needed to investigate the possibility of third-party actions, and I advise an injured worker to have an attorney review for all possible avenues for recovery.

What are the differences in a workers’ compensation claim and a personal injury claim?

There are many differences in the two types of claims, however, they can be broken up into two categories…benefits and recovery. In a workers’ compensation claim you may be entitled to benefits that you can’t receive if filing just a personal injury claim. These benefits can include: vocational rehabilitation, temporary total and temporary partial disability, re-opening rights, permanent partial disability, mileage reimbursement, covered medical treatment, and more. In a personal injury claim, your benefits are more limited to reimbursement/payment of medical costs. Personal injury claims attempt to make up for the lack of benefits that workers’ compensation claims offer by allowing an injured party to sue/recover for lost wages and pain and suffering. It is important to remember, however, that benefits like temporary total disability are very similar to recovery for lost wages. An experienced workers’ compensation attorney would be able to best explain the similarities. It is also important to pursue both claims if your case permits. This allows for the injured party to maximize benefits and recovery.

What happens if I have both a workers’ compensation claim and a personal injury claim?

If you have both claims, it is important that you treat under the workers’ compensation claim, until you are better, rather than under the personal injury claim. The reason for this is that workers’ comp will pay your doctors without you having to sign a lien. Because pain and suffering settlements are largely determined by how much medical benefits you received, it is important to first finish your medical treatment before settling a personal injury claim. Additionally, when smaller policy limits are involved on the personal injury side there may not be enough to cover both pain and suffering and medical treatment. Workers’ compensation insurance companies will be able to seek reimbursement for benefits they have paid if those benefits are the same. Workers’ comp does not pay pain and suffering benefits, so although they can receive a portion of the personal injury settlement to reimburse medical benefits or lost wages they can’t be reimbursed from the portion you received for pain and suffering.

When an injury involves both a workers’ compensation claim and a personal injury claim things can get complicated. Meeting with an experienced attorney is recommended to ensure your claims proceed properly.

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

The Division of Industrial Relations (DIR) held an important training this week (11/13/19) to discuss the implementation of new workers’ compensation provider lists after the passing of SB 381. The DIR is part of the State of Nevada Department of Business and Industry. They are the regulatory agency that more or less oversees workers’ compensation insurance companies and doctors in Nevada. The provider lists that are being updated as a result of SB 381 are the lists of treating doctors who can see injured workers’. Insurance companies use doctors from the DIR’s list and compile a list of their own who injured workers’ can see. Each insurance company has their own list.

Issues with the DIR and provider lists prior to SB 381.

It was determined and mentioned at the training that the DIR’s current list of treating physicians contains over 4,000 doctors! The problem is that the majority of doctors on this list do not treat injured workers (either the doctors have died, stopped practicing, no longer want to see injured workers, or have lost their licenses). The DIR started their list of treating physicians back in 1973 and has not done any follow-up to see if their list is accurate…they simply just continue to add doctors. This has led to years of inaccurate provider lists maintained by the state.

Issues with insurance companies and provider lists prior to SB 381.

Besides workers’ compensation insurance companies basing their own providers lists on an inaccurate and outdated list from the DIR, workers’ compensation insurance companies have never had their lists monitored by the DIR. This allowed the insurance companies to have underrepresented provider lists and the ability for the insurance company to change their lists overnight.

Changes post SB 381.

Senate Bill 381 creates some much-needed change and adds regulation in how the DIR complies their treating provider list, as well as how the workers’ compensation insurance company compiles theirs. The DIR is requiring all doctors to complete a new application in order to be put on their new list, which they must complete by July 1, 2020. Workers’ compensation insurance companies will then have until October 1, 2020, to pick and choose doctors from this list to create their provider lists. The insurance companies will then have to submit their specific lists to the DIR, who will publish the lists for each and every company on their website.

Further, SB 381 requires that insurance companies have at least 12 providers/doctors per specialty. The Specialties include: Orthopedic surgery (which has 9 subcategories all which must have 12 providers/doctors), neurosurgery, neurology, cardiology, pulmonology, psychiatry, pain management, occupational medicine, general practice, and chiropractic. All other specialties/disciplines must contain at least 8 providers/doctors unless the DIR’s list contains less than 8.

Lastly, insurance companies will no longer be able to remove doctors without a reason. Doctors/providers can only be removed from the provider list for the following reasons: 1) deceased or disabled, 2) license suspended or revoked, 3) convicted of a felony, 4) convicted of a crime per NRS 616D, 5) removed by DIR for failure to comply with standards of treatment, or 6) if the doctor voluntarily removes themselves.

Give me a call or send an email for a free consultation if you if you have questions or concerns about SB 381, this weeks DIR training, or provider lists.