Workers' Compensation Attorney

Not necessarily! If your claim is running smoothly, you are getting the treatment you need, and you are receiving all your benefits, then proceed on your own. However, there are benefits to having an attorney that is knowledgeable regarding workers’ compensation law.

What benefits are there in having an attorney’s assistance?

A knowledgeable workers’ compensation attorney can provide an injured worker with numerous benefits and assist in making sure their claim runs as smooth as possible. Injured workers can use an attorney as sort of a case manager. Attorneys can often expedite communications with adjusters, request necessary medical records, and ensure the law is being applied correctly. Workers’ compensation attorneys are often experienced in physician selection, and can assist you in getting the best possible care. During the closing of a claim an attorney can advise a client on when to obtain a PPD (permanent partial disability), if one is not being offered, and review the settlement calculations to ensure the injured worker receives the proper amount.

Some attorneys attend rating appointments with their clients to make certain that proper procedures are used (my office always attends the rating with the client). An attorney’s knowledge of the law is useful in requesting a change in doctors, appeals, making sure benefits are being paid to injured workers that have been taking off work, and in meeting deadlines.

Is an attorney ever necessary in a workers’ compensation claim?

Only in second level hearings or in District Court. Many decisions made by an insurance adjuster can be appealed, through a process called a hearing. If an injured worker receives a determination by an insurance adjuster which they do not agree with (claim denial, refusal to transfer care, etc.), they must file a request for a hearing. The first level hearing can be done without an attorney with the injured worker representing themselves in front of a hearing officer. If the decision of the hearing officer is unfavorable, the injured worker can file an appeal. Insurers are almost always represented at the first and second level hearings, having an advocate on your side can be very helpful at these hearings.

A second level hearing is an appeal of a hearing officer’s decision. These are more formal proceedings in which an advocate is typically required. An injured worker may represent themselves (pro se), but will find that the appeals officer will request that they retain an attorney (often the appeals officer will give an application for the Nevada Attorney for Injured Workers). This is because the insurance company always has an attorney present at these hearings and it is the injured workers’ last shot at a favorable decision from an administrative judge.

There are timelines for filing a request for a hearing at both the hearing and appeal level, so it is important to stay aware of dates on letters and hearing officer decisions.

I pride myself on being upfront and honest with my clients. Give me a call or send an email for a free consultation and I will let you know if I think you need an attorney or should continue on your own.

In most cases, it is the Insurer who is responsible for paying the cost of a Permanent Partial Disability exam. However, in some cases, the burden falls on the injured worker. Unfortunately, this burden just got a bit heavier for injured workers to carry in these rare situations.

Effective February 1, 2016, the cost of a PPD evaluation for 2 body parts rose from $754.62 to $775.75.

Two of the most common reasons an injured worker may have to pay for a rating out-of-pocket include situations in which the insurer is attempting to close the claim without a rating, and when the injured worker disagrees with the resulting percentage from a prior rating evaluation.

If you believe your claim has been unfairly closed without a rating, or that you had an inaccurate rating evaluation, consult an experienced attorney in order to weight the pros and cons of paying the hefty out-of-pocket expense necessary to get a rating yourself. I will review your PPD report and offer free of charge. Call my office to schedule a free consultation.

An FCE is a Functional Capacity Evaluation that takes about 2-3 hours at a physical therapist’s office selected by the adjuster to help the treating doctor determine whether the injured worker should have permanent work restrictions.  More and more treating physicians are requesting that they be done before the doctor gives permanent work restrictions.   Unfortunately, some doctors don’t understand (or don’t want to understand) that they have the final authority as treating doctor to agree or disagree with the FCE findings.

If the FCE comes back invalid, most doctors feel compelled to return the injured worker to full duty work even though it is obvious that the injured worker is incapable of doing full duty work.  I’ve been told by one facility that does many FCE’s that almost a third of its evaluations are invalid, because the injured worker did not pass 70% of the validity criteria necessary to make the test valid.   The validity criteria are supposedly a measure of whether a person is giving a legitimate effort to do the tasks asked by the FCE examiner.  For example, if the injured worker does not show an increase in blood pressure but reports that it is too difficult to  lift a certain weight, the test may be regarded as invalid.  While these FCE examiners swear by their validity criteria, there are legitimate reasons why a person may have invalid results.

Claimants’ attorneys compare what facilities routinely showed invalid FCE evaluations.  Repeat FCE’s done at other reputable facilities often show valid efforts.  Of course, it takes time and money to schedule a repeat FCE that should then be sent to the treating physician for realistic permanent work restrictions.  Meanwhile, the adjuster has stopped compensation checks based on the prior full duty work release, and an appeal must be filed.

If you have an invalid FCE, the sooner you have your attorney file an appeal and schedule a repeat FCE at a different facility, the faster you compensation checks can be restored.

Effective January 1, 2016, the reimbursement rate for workers compensation related travel has been decreased significantly from 57.5 cents per mile to 54 cents per mile.

Injured workers are eligible for mileage allowance under NAC 616C.150. Mileage is eligible for reimbursement if the injured worker

• is traveling to a doctor’s appointment related to his or her workers compensation claim (this includes physical therapy); and
• is using a private vehicle; and
• travels 20 miles or more one way; or
• travels 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.

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

It isn’t always clear what the difference between a work-related illness and  an illness that doesn’t originate in work activities but is made worse when the employee must try to work.    Even when it is obvious and doctors directly report that an illness is caused by an employee’s particular work duties, you can count on most workers’ compensation insurers and their administrators to deny the claim.  The reasons for denial of these occupational illness claims cited by administrators in their denial letters often make no sense.  It is as if administrators are not aware that in addition to work injures  caused by specific accidents that diseases caused by work are often compensable too.

Some occupations have coverage for diseases that are not covered under workers’ compensation law in Nevada.  For example, police officers and fire fighters are specifically allowed coverage for heart disease, lung disease, some cancers, and other illnesses that have been legally presumed to be caused by their work.  However, even when a specific law allows benefits, police officers and fire fighters often have a fight on their hands to get medical care and compensation benefits for an illness presumed to be caused by their work.

Yesterday I had a conversation with a local hand surgeon who has been treating patients for several decades.  We talked about how carpal tunnel syndrome was routinely accepted ten years ago  as an occupational illness by industrial insurers and hearings and appeals officers.  Then the tide shifted and insurers started denying most claims.  Some of those denials were based on the American Medical Associations’ view that carpal tunnel syndrome was not likely caused by only repetitive  hand or wrist motion at work.  However, he and I agreed that whether  claims for repetitive motion hand and elbow problems are accepted or denied has more to do with what insurers arbitrarily decide will be designated as an occupational illnesses than what medical science shows about the cause of these problems.

Here is the link to an interesting article about the plight of an ill employee and his family as they fought to get his occupational illness claim accepted.

According to the Department of Labor, low back pain accounts for one-third of all occupational mesculoskekletal injuries and illnesses resulting in work disability.  A recent article in the Journal of Occupational and Environmental Medicine, December 2015,  states that two thirds of low back pain cases return to work within 1 month, but a substantial number (17%) experience work disability for 1 to 6 months, and 7% for 6 months or longer.  The article goes on to examine the length of disability and medical costs with regard to various states’ workers’ compensation policies.  While the study may have some interest for those concerned with various states’ laws on medical provider choice, it has less to offer readers most interested  in treatment of low back pain with length of work disability or medical costs.

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In order to fully understand your Permanent Partial Disability evaluation, you need to know the meaning of a few of the important terms used by the rating doctors:

AMA Guide to Evaluation of Permanent Impairment, 5^th Edition-   This is the book that the rating doctors in Nevada must use when determining the injured worker’s percentage of impairment.  Other states have adopted older or newer versions of the AMA Guides, but Nevada law requires the use of the 5^th edition.  It isn’t an easy book to understand and newer rating doctors make plenty of mistakes.

Apportionment­- This is the process by which the rating doctor subtracts a percentage for a previous impairment award for an injury to the same body part, or subtracts a percentage for a preexisting injury or degenerative condition.  Nevada has a regulation which requires the rating physician to reference medical records that support the apportionment and that show that at least 50% of the final impairment is related to a prior condition or injury.  Many rating doctors do not apportion correctly.

Contralateral Joint– This refers to the rating doctor measuring the uninjured opposite body part to establish what is a normal range of motion for the individual.  For example, some older people have arthritic changes in the good shoulder that will be taken into account when the injured shoulder is measured for loss of range of motion.  However, I have been able to successfully show that performers with highly flexible bodies with greater than usual range of motion have a ratable impairment by comparing the injury to the contralateral joint’s greater than normal range of motion.

Diagnosis Based Estimate- This term refers to set percentages in the Guides that might be used by the rating doctor to determine the correct percentage as opposed to using another method of rating the injured body part such as measuring loss of range of motion.  The rating doctor must be aware of when to use the DRE method of rating or another method required by the Guides.

Range of Motion­ – Many injured body parts are rated for impairment by the rating doctor under the AMA Guides by having the doctor use an instrument to measure the several ways a joint normally moves and then using those numbers to compute the percentage of impairment.

Stable and Ratable­–  The rating doctor is supposed to do the evaluation only after the treating doctor has written to the adjuster that  no further medical care will improve the patient and that it appears that he patient has a ratable impairment.  Some treatment doctors do not know what constitutes a ratable impairment under the AMA Guides, and some mistakenly think that if an injury worker is able to return to their pre-accident job, they are not ratable.  A rating doctor may find that the injured worker should be sent back to the treating doctor if the rater thinks that more medical care is necessary.

Whole Person Impairment– This is how the final percentage is expressed by the rating doctor.  It is determined by having the doctor evaluate the various injuries under the Guides and then combining them to convert the individual percentages to a whole person impairment.  There is a chart in the back of the AMA Guides that shows the rating doctor how to combine numbers.

I am attaching a good article from another law firm on the Misdiagnosis and Traumatic Brain Injuries.  With injured workers often receiving sub-optimal medical care even when they can speak up and voice complaints, the worker with a brain injury is at greater risk of not getting appropriate care.   If you question whether a loved one that has had a brain injury is getting the right care, an initial consultation with a workers’ compensation attorney may be helpful.

Every year I attend a Larson Advisory Board luncheon scheduled during the National Workers’ Compensation and Disability Conference in Las Vegas.  Advisory Board members are attorneys from various states who blog and contribute articles on workers’ compensation law to the Larson’s Series of publications.  The Board members discuss trends and the hottest legal issues.

This year, the hot topic was once again the Oklahoma opt out law that was enacted in 2013.  It essentially allows employers to adopt complex plans controlled solely by employers whereby benefits are denied to most injured workers, while employers remain shielded from any liability.  Its purpose is to save employers money, while forcing injured workers to seek other forms of public relief, like welfare and social security benefits.   The injured worker must use any insurance purchased under the Affordable Care Act (Obama Care) to pay for medical expenses, and isn’t likely to receive any wage replacement while he or she recovers from the work injury.

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Many of our clients are unable to afford medical treatment for their injuries because they do not have health insurance. If you are not receiving medical treatment and you do not have health insurance, be aware that Open Enrollment to participate in a health insurance plan through Marketplace Exchanges (the Affordable Care Act or “Obamacare”) begins on Sunday, November 1, 2015. The following  are important dates to keep in mind:

*November 1, 2015: Open Enrollment starts. This is the first day you can sign up for health insurance coverage starting on January 1, 2016.

*December 15, 2015: The last date to enroll for coverage that starts January 1, 2016.

*December 31, 2015: Date when all 2015 Marketplace coverage ends, no matter when you enrolled.

*January 31, 2016: Open Enrollment ends. This is the last day you can sign up for health insurance coverage, unless you qualify for a Special Enrollment Period.

If you do not sign up for health insurance during this time, you may not be able to sign up until next year. You may also be charged a penalty by the government if you do not have health insurance. Even if you think you cannot afford insurance, you should find out if there’s are subsidies available to you to help you pay for coverage.

Please go online at www.healthcare.gov or contact the Health Insurance Marketplace directly at 1-800-318-2596 for more information. Please note our office will not be able to help find an insurance plan for you, but I highly recommend my agent:

Chris Carothers

3161 E. Warm Springs Rd

Henderson, NV 89120

P: 702-385-3684