Workers' Compensation Attorney

The monthly meeting of the workers’ compensation attorneys who represent injured workers was named the Workers Comp Working Group by the Nevada Justice Association with the presentation of a plaque. It was given to attorneys from the group who attended the annual NJA conference this past weekend in Long Beach California.

JP Kemp, Jason Mills, Herb Santos, and Craig Kidwell were attendees at the conference. They reported that the personal injury attorneys who make up the majority of the NJA membership had a new-found respect for the hard work of the group during the last legislative session. That session was a nail-hitter to the end when the tide could have turned into an ugly tsunami drowning the rights of injured workers. Selfless claimants’ attorneys from the Working Group did a great job during the last legislative session, with sharks circling and snapping at issues like adoption of the Sixth Edition of the AMA Guides.

The Workers Comp Working Group is an apt name for the group established by Billie-Marie Morrison, Esq., of Craig Kenny & Associates about four years ago.  (more…)

I wish I could say I’m surprised by the lame response by DIR (Division of Industrial Relations) to the Petition I file d in July for DIR to do its job and have an actuary review the discount rate used to convert permanent partial disability awards to present value lump sums.  After you read DIR’s response, denying the petition, you will note that the director of DIR fails to mention that the law requires DIR to have an actuary review the present value table every year. No excuse is offered as to why it hasn’t been done since 2000.  Instead, he says DIR complied with the law that requires a review of all regulations every ten years.

Don’t worry, injured workers.  I’m not going away, and intend to take further action on this until the regulation and table are corrected.  Injured workers are entitled to be paid a fair sum for their permanent partial disability awards.  DIR should be ashamed of itself for being the puppet of insurers.  At some point, Nevada legislators and/or the Governor will have to acknowledge that having the fox guard the henhouse in Nevada workers’ compensation system is wrong.

I get so many questions about hearing impairments that I am attaching a link to a recent explanation written by rating doctor Michael Glick, D.O., that appeared in the DIR Medical Unit’s Seminar 2015 newsletter. Please note that a 5% for tinnitus converts to a 2% whole person award. Some doctors will award for tinnitus if there is a documented hearing loss even if it doesn’t amount to a ratable impairment for hearing loss, while some rating doctors will not award for tinnitus unless there is a ratable impairment for hearing loss. Also, be aware that you may need hearing aids for a hearing loss, but may not have sufficient loss for a ratable impairment.

The fifth annual Division of Industrial Relations Workers’ Compensation conference, held on August 19 and 20, 2015, was attended mostly by people servicing employers , insurers,  and third-party administrators in the workers’ compensation industry in Nevada.  Few of the speakers focused on educating the attendees about the needs of injured workers, with the notable exception of the fire fighters who spoke about the risks of toxic chemical exposures to fire fighters.

I had expected DIR to cater to the insurers, as usual, but I had hoped to hear something from DIR about what it was doing or at least planned to do to improve the system for injured workers.  I couldn’t attend  break-out sessions that were held simultaneously, but the other claimants’ attorneys who attended the sessions I didn’t  attend confirmed that this was indeed a one-sided conference hosted by DIR.

I heard that Katherine Godwin, supervisor  of the WCS Medical Unit and Paul Pirruccello, D.C., gave an excellent and informative presentation about permanent partial disability issues that are frequently disputed.  I believe that Ms. Godwin tries very hard to ensure the integrity of the DIR rotating rating list process.  Dr. Pirruccello is one of the most knowledgeable and fairest rating physicians, respected equally by adjusters and claimants’ attorneys.  This session was originally advertised by DIR as being about the 6th edition of the AMA Guides.  Apparently, DIR had erroneously predicted that the self-insured employers would prevail in getting the 6th edition of the Guides adopted at the last legislative session.  That didn’t happen, and Dr. Pirruccello was called on to provide an alternate talk on rating evaluations.

Lezlie Wooten, Claims Manager for CCMSI, and Jeanne Dubose, Claims examiner for Sierra Nevada Administrators, had intelligent comments about the statutes concerning disputed permanent partial disability awards.  I particularly liked their common sense suggestions on how to resolve those disputes without litigation.  They  also addressed a problem I am encountering with medical providers billing injured workers instead of the workers’ compensation administrators on known comp claims.  They agreed with me that this was a serous problem that was unfairly affecting the credit of injured workers.  They stated that they could only tell claimants to file a DIR complaint.

I asked moderator Suhair Susan Sayegh, DIR WCS Southern District Manager, why DIR has yet to fine those medical providers who routinely bill inured workers, and she declined to answer.  I’ve filed numerous DIR complaints against medical providers who engage in this illegal practice of billing injured workers, but I’ve yet to see DIR fine any of these recurrent violators.  DIR’s approach has been to re-route the particular bill to the TPA, and forget about preventing it from happening again to other injured workers.

Rajat Jain, Chief Insurance Examiner for the Nevada Division of Insurance, provided many statistics and graphs concerning his agency’s shared responsibility with DIR to regulate Nevada’s insurers and their TPA’s.  I asked whether he had statistics concerning the number of fines DIR has assessed against insurers, self-insured employers and TPA’s.  He didn’t have that information with him.  He did know, however,  that the Commissioner of Insurance has not revoked the certificate of any insurer or TPA because they had incurred 2 or more fines of $1000 or more by DIR in 1 year.  He emphasized that the Commissioner was not required to revoke certificates, but had the discretionary authority to do so.

I then asked Mr. Jain whether he knew that  DIR had recently obtained permission form the DIR Advisory Council  to write off $842,000 in fines as uncollectible.  He wasn’t aware of that, and he didn’t offer an explanation as to why any fines should ever be uncollectible if his agency has the power to revoke the license of an insurer or TPA.   It appeared that Mr. Jain wasn’t very interested in the regulatory role of the DOI over workers’ compensation insurers and TPA’s unless it had to do with their solvency.   This was disappointing to me that  a second state agency in Nevada, specifically  charged with protecting the rights of injured workers, cares as little as DIR about the people who most need their help.

I have a lot of information on my website, blog posts, and Youtube videos for those injured workers in Nevada who want to represent themselves at hearings.  But it appears that I haven’t addressed an important topic for those of you who successfully contest a claim denial and win your case in front of a hearings officer or an appeals officer.  I have already addressed what to do if an insurer or employer files their own appeal of a hearings officer’s decision that is favorable to you in by blog post that discusses motions for stay orders in “When Is a Win Not a Win”.

Now let me tell you what you must do in order to get compensation benefits paid to you after you get a decision that reverses denial of your claim and orders the work comp insurer to “pay all appropriate benefits”.  Unrepresented injured workers usually interpret their winning decision as meaning that now they will get those hard-won lost time compensation benefits automatically.  Wrong.

What a decision that remands the claim to the insurer for “all appropriate benefits” really means is that now you must follow up with the insurer by making specific requests for compensation benefits and for medical care.  For example, if you have been unable to work since the day of your accident, now you must attach physician off work certificates (usually in the form of Physician Progress Reports) to a written request to the insurer for payment of compensation benefits.  Don’t forget to date your request and to keep a copy of what you send to the insurer.

The insurer, who didn’t want to accept your claim at the outset, is not going to offer you advice on how to extract the money that is owed to you after the insurer loses the claim denial issue.   You must therefore follow up your win with a specific request for benefits and attach the supporting physician off work slips (or physician’s work restrictions when your employer doesn’t have light duty work).

If the insurer doesn’t respond to your written request for benefits within 30 days, you can file an appeal with the Hearings Division on the insurer’s failure to respond (called a de facto denial).  You could also file a complaint with the Division of Industrial Relations that the insurer violated the law by not responding to your request for benefits within 30 days.

The following is an article from WorkCompCentral, an online workers’ compensation news reporting service and resource center for the work comp industry and injured workers.   I haven’t received a response from DIR to the Petition to Amend Regulation that I filed on July 29.  DIR has 30 days to respond to that Petition.  I am posting the below article, because the reporter spoke to DIR about the Petition, and I thought you would be interested in what DIR had to say.  Virginia

Monday, August 10, 2015

DIR Undertakes Long-Overdue Review of Discount Rate

by Sherri Okamoto (Legal Editor)

State: Nevada

Topic: Top

Nevada’s Division of Industrial Relations last week said it is in the process of updating an often overlooked formula that can add or subtract tens of thousands of dollars from lump-sum awards to permanently disabled workers.

The division admits that the task of updating the “discount rate,” which is used to convert partial disability awards into lump sums, is 15 years overdue. Even though a state statute requires the division to review the discount annually, the division hasn’t done that since 2000 and hasn’t changed the rate since 1997.

In September 1997, the federal funds rate was about 5.5%. On Friday, it was 0.14%.

Las Vegas claimants’ attorney Virginia Hunt brought the long-overdue adjustment to the attention of state regulators. She filed a petition on July 29 asking the DIR to comply with the statute and update the discount rate.

Hunt said the DIR’s oversight has harmed injured workers, and she expects insurance carriers to oppose her request.

“These opponents may state it more eloquently, but their real complaint will be that they were counting on DIR staying asleep at the wheel regarding the compensation injured workers are paid for their permanent impairments when they elect to be paid in a lump sum,” Hunt said in her petition. “That argument is insulting to DIR, of course, as it questions whether DIR’s oversight should be ignored now to intentionally benefit insurers at the expense of injured workers.”

Under current law, an injured worker may take up to a 25% whole person permanent partial disability award in a lump sum, which is reduced to present value. Earlier this year, the state Legislature amended the statute to allow lump sums for claimants who were injured before July 1, 1995, of up to 30% for whole person impairment, according to Hunt’s petition.

Reducing to present value is basically a reversal of the idea of compounding interest. If a worker elects to take a lump sum and leaves that money untouched in an interest-bearing account, then he is supposed to wind up getting the same amount of money as he would if he had continued to collect installment payments.

Tinkering with the discount rates leads to enormous difference in the amount of PD awards paid to injured workers who elect to take a lump rather than accept installments over time. For example, a $100,000 award that would be paid out over 20 years has a present value of only $31,180.47 at the 6% rate, but is worth $55,367.58 at a 3% rate.

Nevada Revised Statute 616C.495(5) requires that the DIR review its discount rate annually. DIR Chief Administrative Officer Chuck Verre on Friday candidly acknowledged that the agency hasn’t undertaken the task in over a decade.

“We did not do what we should have done,” he said. “It’s as simple as that.”

He said he was in the process of asking the Division of Insurance to assign actuaries to evaluate whether the 6% discount rate needs to be adjusted to more accurately reflect the time value of money, and the DIR staff is researching the rates other states are using.

Hunt contends that the 6% discount rate is too high, so it’s leaving workers with far less than they would get if they didn’t take the lump-sum payout.

For instance, she said she had a 33-year-old client who accepted a lump-sum payment of $55,767 for a back injury, but he would have gotten $139,564 if he had gotten his award in weekly installments. Another client, who was 38, received a lump sum of $34,765, Hunt said, when he could have gotten $78,336.

On her blog, Hunt has suggested that a rate of 2.75% to 3% would be more appropriate.

California and Connecticut commute permanent disability awards at a 3% rate, Hawaii and Colorado use 4%, while  New Jersey and Delaware use a 5% rate.

Alabama and Kentucky join Nevada in using a 6% rate.

Utah and Kansas are at the higher end of the spectrum, using an 8% rate, and Arkansas is the highest, at 10%.

Other states have discount rates that can be adjusted on a case-by-case basis. For instance,Minnesota law provides that PPD awards can be commuted to a lump sum using a discount rate of up to 5%. Louisiana also allows a lump-sum payment to be discounted by no more than 8%.

Another popular approach among the states is to tie the discount rate to the interest rates for U.S. Treasury bills.

Arizona uses the mean average of the three-month Treasury bill rate on Dec. 31 of each of the five years prior to July 1 of the current year, while Texas uses the maturity rate for one-year Treasury bills.

South Carolina sets its discount rate on awards of 100 weeks or more to the interest rate on the five-year Treasury bill, although it provides that the discount rate cannot drop lower than 2% or exceed 6%.

Hunt’s blog says she believes workers know they “are getting a rotten deal” if they take a lump-sum payment, but many of the more seriously injured workers wind up going into debt while they are unable to work.

Hunt said she is advising her clients with PPD awards to continue receiving their benefits in installments until the DIR figures out what the appropriate discount rate should be.

“There might be a possibility of converting installment PPDs to higher lump sum awards once the present value discount rate is changed, but I cannot predict exactly what will happen, when something will happen, and which claimants will benefit from the overdue change,” she wrote. “Let’s hope DIR does the right thing and proposes an amendment to the regulation so that a nationally accepted discount rate can be used each year to get an accurate present value for lump-sum PPD awards.”

A copy of Hunt’s request for the DIR to take action is available here.

Family law attorney Stacy Rocheleau with RIGHT Lawyers has written a guest blog post for my clients on how to stay married.  Thanks, Stacy for the great advice:

Divorce Lawyer Marriage Tips

by Stacy Rocheleau, Esq.
 Learning how to have a better marriage from a divorce lawyer might seem a little odd.   My job is to end marriages, not keep them together.  

But, as a divorce lawyer, I see the myriad of reasons marriages break down.  There are the big ones – cheating, drug abuse,  or domestic violence.   And, there are the not so big ones – over spending, issues with the in-laws, or growing apart.  
  
Being a first responder to these divorce battles has strengthened my own 22-year marriage.  Seeing first-hand the issues causing divorces has provided me insight into how to strengthen a marriage.  Here are a few tips I have learned. 

Make Time For Each Other

Finding time is hard.  Our days and weekends are filled with work, carting kids to activities, helping with homework, meals, and housework.  We are so busy running around, by the end of the week my husband probably wouldn’t notice if I grew a mustache!

Remember how much time you spent together when dating?  Whether or not you had kids, your life was still busy, but you made time for each other because it was important.  So make it important again.  Date nights are great.  We often go to Starbucks in the morning for coffee.  Spending time together, uninterrupted by kids or work will strengthen the marriage. 

Keep Intimacy Alive

This does not necessarily mean having sex three times a day, every day, although most men would be fine with that!  Couples usually have different needs for intimacy.  One spouse may like holding hands while walking through Walmart, while another needs frequent sex.  Have honest conversations about your needs.  Come to an understanding of what fulfills your spouse.  A marriage without intimacy will often result in a spouse seeking it from someone else.  

Count The Money

Financial issues are a big reason behind divorce.  This isn’t just about not having money.  It’s about participating in the money together.  One spouse may feel they are being “controlled,” another may feel their partner doesn’t participate in the budgeting.  

Couples need to get on the same page and understand how much you make combined each month, how much your monthly expenses are, who is going to pay the bills, and how much is left over for discretionary expenses.  Sit down together to work on budget and a process for paying the bills.  

Be Kind

This seems like a no-brainer, but we all know someone who will treat strangers nicer than they treat their spouse!  Your spouse is someone you chose to live your life with, someone you supposedly love and are best friends with.  So be kind, be forgiving, and show compassion and empathy.  

Have Your Own Interests

You are married, not surgically connected.  It is natural to have interests outside of your spouse.  Maintaining your own hobbies, activities, and own set of friends is healthy.   If there is a trust issue, talk about it and get it resolved.  How can they miss you if you are always around?  Even a short absence of a few hours does make the heart grow fonder.

Question:  Why is the PPD lump sum so much less than the total  installment amount?

Answer:  An injured worker may take up to a 25% whole person permanent partial disability award in a lump sum reduced to  present value under Nevada law (NRS 616C.495).  Present value means the current worth of all the installment payments after discounted at a particular discount rate.  The higher the discount rate, the lower the present value of the installment payments.  Theoretically, if the injured worker didn’t touch the annual or monthly installments paid on the PPD award until the worker is age  70, the untouched  lump sum, earning  interest, should approximate the total installment amount.  When you examine the insurer’s Election of Method calculation included with the PPD award letter, you will see a tremendous difference in how much money the injured worker would receive over time in total installment payments versus what the worker would receive by taking the award in a lump sum now.

(more…)

The 2015 legislative session made a major change in SB 153 to the heart and lung statutes regarding the application of a conclusive presumption of compensability. A conclusive presumption means that the ill police officer or firefighter does not have to prove that an occupational exposure caused a disabling heart or lung disease. It also means that employers cannot try to prove that the claimant had a preexisting illness or that something other than occupational activity caused the heart or lung disease if the conclusive presumption applies. The new conclusive presumption in NRS 617.455 and NRS 617.457 are effective June 8, 2015, and state:

A disease of the lungs (or heart) is conclusively presumed to have arisen out of and in the course of the employment of a person who has been employed in a full time, continuous, uninterrupted, and salaried occupation as a police officer, fire fighter, or arson investigator for 2 years or more before the date of disablement if the disease is diagnosed and caused the disablement:

(a) During the course of that employment; or

(b) If the person ceases employment before completing 20 years of service as a police officer, fire fighter, or arson investigator, during the period after separation from employment which is equal to the number of years worked; or

(c) If the person ceases employment after completing 20 years or more of service as a police officer, firefighter, or arson investigator, at any time during the person’s life.

Service credit that is purchased in a retirement system does not count toward years of service for the purpose of these statutes.

The same bill codified existing case law that a person with a heart or lung claim is only entitled to medical benefits if they file a claim after retiring.

Finally, SB 153 enacted a provision that will not go into effect until January 1, 2017, that frequent or regular use of tobacco products within 1 year, or a material departure from a physician’s prescribed plan of care within 3 months, immediately preceding the filing of a claim excludes the person who has separated from service from the conclusive presumption in NRS 617.455 and 617.457. This provision will allow an employer or insurer the ability to defend against retirees’ claims similar to their ability to defend against heart and lung claims of claimant’s who fail to correct predisposing conditions after being warned to do so after the annual heart/lung physical of currently employed claimants.

Thank you to Katherine Godwin, Supervisor of the Medical Unit, at the Devision of Industrial Relations-Workers Compensation Section, for providing me with the number of rating evaluations in Nevada for fiscal year 2014 (July 1, 2013 through June 30, 2014).

A total of 5405 ratings were assigned by DIR, with 1249 in the North, 3749 in the South, and 407 in the Rural part of Nevada.   The official statistics reported to the U.S. Labor Department for the number of all claims filed is only published for 2013, so I cannot give accurate information on the percentage of Nevada claims that resulted in a permanent partial disability evaluation in 2014.  Typically,  in past years, only about 10% of Nevada claims result in a rating evaluation.