Workers' Compensation Attorney

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.

Nevada workers’ compensation doctors are typically picked from the workers’ compensation insurer’s provider list. What does that even mean? Workers’ compensation insurance companies have a list of doctors who are in their network and are willing to see injured workers. Recent changes in the law effective in January 2020 will require these insurance companies to expand their lists to have a reasonable number of doctors for each specialty.

In my opinion injured workers have way too little control over which doctors they can see. In Nevada, the law allows for an injured worker to request a transfer of care within the first 90 days of the claim. This is not the first 90 days the claim was accepted but within 90 days of the injury. If the injured worker does not select a doctor, then the insurance company will select one for them. If more than 90 days has passed then it is difficult to transfer care to another doctor.

How do I go about requesting a transfer of care?

You will need to get a copy of the workers’ compensation insurer’s provider list, determine the type of doctor you need to see, and send a written request to the insurer to see that doctor. Each insurance company has their own list, so you want to make sure you are looking at the insurance company’s list that is handling your workers’ compensation claim, and make sure it is their most up-to-date list.

After you have sent in your request for a transfer of care, the insurance company will have 10 days to approve or deny the request. You will want to appeal any denial! If the request was made within the first 90 days of the injury it is your right to request a doctor of your choosing.

Are there other ways to pick my doctor?

There are other methods to get an injured worker seen by a doctor, however, they often can require litigation and/or discussions with the insurance company. Requests for second opinions are at the discretion of the insurance company’s adjuster. Second opinion doctor’s must also be selected off the workers’ compensation insurance company’s provider list and the request must be made in writing.

Independent medical evaluations are another way to be seen by another doctor and occasionally (once a year per NRS 616C.145) you can get one as a matter of right and see a doctor on the Division of Industrial Relation’s provider list. The Division of Industrial Relation’s has a much larger lists and often has doctors that aren’t on insurance company’s provider lists. See my blog on NRS 616C.145 for more information on independent medical evaluations that you can receive this way.

Remember that second opinion doctors and doctors you see for an independent medical evaluation are not your treating physician. These are typically one-time visits.

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

Occasionally, an injured worker’s injuries are so severe that even after medical treatment has concluded they cannot return to work doing what they used to do. Injured workers in this position may not be out of options for future employment… often they will be eligible for vocational rehabilitation.

What is vocational rehabilitation?

Vocational rehabilitation consists of job training at a vocational/trade school. These schools allow a person to learn a new trade or skill that will be useful in helping them gain future employment. For example, injured workers can go through vocational rehabilitation to learn computer skills like graphic design. Vocational rehabilitation counselors are assigned to an injured worker’s case and assist in the process. The counselors will help design/pick a program and monitor progress.

An injured worker may be a candidate for vocational rehabilitation when their treating physician gives them permanent work restrictions and their previous employer has no work within those restrictions. In this case, the insurance adjuster will assign a vocational rehabilitation counselor. The injured worker will meet with the counselor and discuss interests, the job market, and create a plan for success. The injured worker will then have their schooling and necessities paid for. They will also be entitled to bi-weekly maintenance benefits, similar to TTD.

The length of schooling an injured worker may receive is based upon the percentage of impairment they receive at the PPD rating.

Are there alternatives besides going to school?

An injured worker that is eligible for vocational rehabilitation is not necessarily stuck with having to go to school. An injured worker can request a “buy-out.” A buy-out is the payment of one lump-sum that must meet a minimum percentage of the injured worker’s entitlement to maintenance benefits under the vocational rehabilitation program. An attorney can often be helpful in negotiating a settlement. Although, the settlement is offered by the vocational rehabilitation counselor, it must also be approved by the insurance adjuster handling the injured worker’s claim.

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

All too often I hear from client’s “I don’t want to sue my employer… I love where I work!” Occasionally, I will also hear, “I hate my employer… this is all their fault, can I sue them?” My response to both of these clients is the same. In Nevada, an injured worker can not sue their employer for injuries that occurred in the course and scope of their employment. The injured workers’ remedy is to file a claim for workers’ compensation through their employer’s workers’ compensation insurance policy.

Workers’ Compensation is an Exclusive Remedy.

In most states, including Nevada, a workers’ compensation claim is an injured workers’ only  remedy for injuries that occurred at work. This means you cannot sue your employer for negligence, even if a co-worker pulled the ladder out from under you or if your employer had you using old busted tools. It is a no fault system. Now, this is not to say that one can go and smash his hand with a hammer in an attempt to get a settlement. The injury must still be unforeseen, sudden, and tangible. However, the injured worker will not need to show that some duty of care was breached or that the injury was caused by someone else.

The negative side effects of an inability to sue an employer for negligence include no punitive damages and no recovery for pain and suffering. A workers’ compensation claim is an insurance claim for medical and monetary benefits for injuries that occurred at work. The purpose of workers’ compensation insurance is to have medical treatment paid for, to receive compensation for any time missed from work, and to receive some compensation for any permanent impairment that may affect future employment.

A positive side effect includes the ability for employers and injured workers to rest easy knowing that this shouldn’t create animosity in the workplace. Although, the reality of it is filing a claim can occasionally cause animosity, it is important for both sides to remember that this is a claim for insurance benefits from the insurance company.

In Nevada, every employer with one or more employees is required to have workers’ compensation insurance. Workers’ compensation insurance not only protects an injured worker, but their employers as well.

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

Average Monthly Wage for Fiscal Year 2020 Increases.

For Fiscal Year 2020, which begins on July 1, 2019, the maximum average monthly wage used to calculate workers’ compensation benefits has increased to $6,096.60. This is applicable to injuries on claims filed after July 1, 2019. If you have a claim established already, this increase will not affect your benefits. The maximum temporary total disability benefit in Nevada is 66 2/3 of the maximum average monthly wage. That means that if the injured worker is off work due to the injury for a month, or her employer does not have light duty work within the doctor’s restrictions, she will receive $4,064.40 in compensation benefits that month. The usual 14-day payment will be $1,869.28. Each day in the pay period is counted, including Saturdays and Sundays, when calculating compensation benefits. The daily rate under the new maximum average monthly wage is $133.52.

The average monthly wage used to calculate off work benefits is also an important factor in determining how much money an injured worker will received if he has a permanent impairment as defined by the criteria in the AMA Guides to Evaluation of Permanent Impairment. If the adjuster sends you a letter with your average monthly wage, and it seems too low, don’t neglect to do something about it, even if you aren’t losing time from work. You could lose a significant amount of money by not making sure that the average monthly wage is as high as it should be when it is time to calculate a PPD award.

The average monthly wage at the time of the injury also controls the amount of compensation benefits if the claim is ever reopened in the future. Your original injury may have occurred ten years ago when you were making a lot less money. If you need to reopen your claim now and will be out of work again for another surgery, your benefits will be based on what your income was 10 years ago. It doesn’t cost anything to check with a reputable attorney about whether your compensation benefits are calculated correctly and whether you should be proceeding on a reopened claim as opposed to a new claim.

Give me a call or send an email for a free consultation if you think your average monthly was miscalculated.

Claimants love it and insurers don’t… the famous/infamous NRS 616C.145.

Prior to the 1990’s Nevada workers’ compensation claims used to be liberally construed in favor of the injured worker, claims would move much faster, and the whole process was much less burdensome than it is today. It was in the 1990’s that the wind shifted and injured workers’ started to get the colder end of the deal. The language in the statute that mandated that claims be “liberally construed in favor of the claimant” was removed and so were the days of “no litigation claims.”

In 2017, the legislature passed AB 458, which is now known as NRS 616C.145 (“.145”). 145 is the injured worker’s first reminder of the days prior to the 1990’s in a long time. 145 gives the injured worker some ability to gain a little “say-so” in their claim management. It allows the injured worker to request an independent medical evaluation (“IME”) once a year if a treatment plan is at issue, scope of the claim is at issue, or if the insurer sends them to an IME of their own. There are other reasons and ways to obtain an IME through 145, but treatment and scope are the big ones. 145 also allows an injured worker who’s claim is being closed without a permanent partial disability rating to obtain a permanent partial disability (“PPD”).

Now you may be thinking, “This sounds great, who wouldn’t love 145?” The answer is insurers, employers, and workers’ compensation defense attorneys. The reasoning is that the insurer or third-party administrator must pay for it and there is no defense. The injured worker is entitled to one once a year if one of the statutorily prescribed issues is present.

From the standpoint of an attorney who only represents injured workers, I love 145. It in no way makes the Nevada workers’ compensation system a fair one, but it does level the playing field just slightly. In my opinion it has the ability to speed up claims and help resolve litigation. This is not to say that a 145 IME or 145 PPD always works in favor of the injured worker. Whether or not to request a 145 IME or a 145 PPD is something an injured worker should discuss with a knowledgeable Nevada workers’ compensation attorney.

Give me a call or send an email for a free consultation and I will let you know if I think a 145 IME or 145 PPD is appropriate in your case.

The “PPR” serves several very important purposes. The PPR (Physician’s Progress Report) can be viewed as an injured worker’s report card from their treating physician. Insurance adjusters often get these reports directly from the treating doctor, however, injured workers can also get a copy after each appointment with their doctor. It is my recommendation that you do request one before you leave the doctor’s office!

What does the PPR tell you?

The PPR contains a lot of important information that dictates many aspects of an injured workers’ claim. For example, the PPR indicates: (1) when your next appointment is, (2) work restrictions, and (3) the progress of your treatment. Insurance adjusters use PPRs to determine eligibility for temporary total disability benefits (TTD), and to determine whether or not more treatment needs to be authorized. Employers use PPRs to comply with work restrictions. You can use PPRs to enforce your rights to receive TTD benefits, to work in an environment conducive to your recovery, to stay on top of your treatment, and as a reminder of further appointments.

Why is the PPR even more important to you near the end of your treatment?

Arguably, the most important purpose the PPR can serve is to indicate your entitlement to a permanent partial disability (PPD) rating. On the PPR is a box for a doctor to check when you have reached maximum medical improvement (MMI), meaning no further treatment is required. In addition to the MMI box is another box for the doctor to check if he believes you have a ratable impairment. This box guides the insurance adjuster’s determination of whether or not to schedule you for a PPD rating. It is this rating that evaluates you for any permanent impairment entitling you to further monetary benefits. Further, the PPR can contain permanent work restrictions that may entitle you to vocational rehabilitation.

Summary:

In short the PPR is important because it is the guidepost for many decisions that are made in regards to your benefits, both current and future, and it informs you of your treatment progress/future appointments.

Contact me for a free consultation or case review.