Nevada Workers' Compensation Law Blog

Do I Need An Attorney for a Traffic Ticket?

Virginia Hunt — Thu, 10 May 2012 14:30:07 -0800

As a service to my existing clients and other injured workers, I ask attorneys who practice other types of law in Nevada to write guest blog posts. Attorney Martin Prybylski handles bankruptcy cases, DUI cases, immigration cases, and he has clarified whether you need an attorney if you get a traffic ticket. Martin's office is in the same building as my office, and he does handle traffic tickets. Virginia Hunt

Do I Need an Attorney for a Traffic Ticket?

Las Vegas residents see numerous advertisements every day for attorneys that want to "fix" your ticket. Most attorneys promise no points on your license, no increased insurance rates, no traffic school and no court appearances. What most individuals do not understand is that these are standard deals. Most individuals can appear themselves in court and get a comparable deal for the hassle of waiting in line and appearing in court.

So, why hire an attorney? One word: CONVENIENCE. An attorney has fast tracked access to the courts to obtain deals that typically allow individuals to reduce their tickets to parking infractions thereby avoiding insurance hikes, traffic school, and points on their license. By having the attorney appear on your behalf, you will save on average several hours of your day in the middle of the work week. Due to the ease of handling traffic tickets most attorneys charge low prices. Watch out for attorneys overcharging for basic tickets, but do not be surprised if a ticket is more expensive if it is in an outlying jurisdiction or if it has gone to warrant.

A simple google search can help you find an attorney near you who handles tickets. Many attorneys handle traffic tickets to supplement their practices or as favors to their existing clients. I, for example, primarily handle bankruptcies for consumer debtors. I also handle traffic tickets for my existing clients or new clients for a small fee. If you already have an attorney for another matter, they may handle your ticket for free! Don't be afraid to ask.

Whatever you do to handle your ticket, don't simply pay the fine on your ticket! Either appear yourself or have an attorney appear on your behalf. Avoiding the points on your license are worth the extra hassle or money.

By Martin Prybylski, Esq.

1945 E. Warm Springs Rd.

Las Vegas, NV 89119

(702) 433-2000

Can You Be Fired While You Have a Nevada Comp Claim?

Virginia Hunt — Tue, 01 May 2012 12:35:06 -0800

Both employers and injured workers are unsure about the law on firing an injured worker who is actively treating with a doctor on an accepted workers' compensation claim in Nevada. Most people know that an injured worker cannot be fired simply because he or she files a claim for workers' compensation benefits. There is an old case from the Nevada Supreme Court that allows an injured worker to sue his employer for money if he can prove that the employer fired him for filing a workers' compensation claim. Not too many employers are apt to make the mistake of not having some other reason, real or not, for terminating an injured worker. In the past, I've only encountered one employer who wrote on a termination notice that the employee was fired because he "filed a comp claim".

Most job terminations instead result from an injured worker not wanting to work temporary light duty work that the employer offers to accommodate the physical restrictions given by a doctor. If the temporary light duty work is mindless, and it's a hassle for the injured worker just to get to work, bad feelings quickly develop between the employer and the injured worker.

It may seem like the light duty job is punishment for getting hurt at work and filing a claim. And maybe the employer's light duty work program is a thinly veiled threat to employees not too file claims or to get hurt at work. But, the law only says that permanent light duty job offers cannot be demeaning and degrading. Permanent light duty jobs have a completely different set of rules.

Employer can create "special jobs" just for injured employees with open compensation claims and point to statistics that show that injured workers on light duty get better faster. That means that the employer can have a policy or rule that injured workers who refuse temporary light duty (and who don't have any FMLA, or vacation or personal time left) can be disciplined, including fired.

In general (and you should seek individual legal advice for your circumstances), Nevada employers can and will fire employees who are working light duty jobs after their job accidents if they have a good reason for firing the employee. Again, common reasons given by employers pertain to the employee for not showing up for light duty work, calling in sick too many times, and not performing the light duty job.

The present statute allows insurers to deny compensation benefits to injured workers who are fired while working temporary light duty, if the insurer denies compensation benefits within 70 days after learning about the job termination. Benefits should only be denied if the injured worker was fired for gross misconduct., but insurers routinely deny benefits for any kind of job termination and bet on the employee not appealing.

Employees who complain that their injuries prevent them from going to work at all, need to be aware that their employer is entitled to rely on the treating physician's progress report . If that report says the patient can work with restrictions, and the employer offers such work, the injured worker won't win any battles that depend on self-serving statements of his inability to work light duty, Employers, and hearings and appeals officer will rely almost exclusively on the physician progress report. For example, if the progress report doesn't restrict the number of hours an employee can stand at work, the employer can assume that the employee can stand for his entire shift.

The injured worker must make sure that the treating doctor is aware of what kind of work the employer is likely to offer so that they injured worker can request restrictions that make sense. Instead of complaining to the employer that he cannot do temporary light duty work, the injured worker should quickly return to see his physician to discuss any necessary additional restrictions. Meanwhile, the employee should try to do the light duty work. Not showing up for light duty work may get the employee fired, and it will be a legal fight to get benefits.

I have had a lot of success in obtaining compensation benefits for employees who are fired during temporary light duty. Employers and insurers don't always know or follow the law. However, an injured worker doesn't want to go without a paycheck or a comp check while filing an appeal. The best course is to show up for the temporary light duty job, get any necessary additional restrictions from your doctor, and to quickly get a free consultation with a lawyer to discuss your particular case. While you still may have to do some kind of temporary light duty eventually, your attorney may be very helpful in guiding you through these problems.

Drug and Alcohol Intoxication Not Always a Losing Case

Virginia Hunt — Thu, 26 Apr 2012 13:06:39 -0800

A blog post by Thomas A. Robinson for Lexis Nexis discusses a recent case involving Utah's law that presumes that an injured worker is intoxicated and that the accident was caused by intoxication if any illicit drug or alcohol is found in the injured worker after the accident. The case concerns a construction worker who stepped off the edge of decking at a construction project and fell fourteen feet to concrete below. A urine sample taken from him at the hospital on the day of the accident tested positive for cocaine metabolites. The construction worker won the appeal on his denied claim by subpoenaing witnesses to testify that the worker was not acting impaired before the accident.

Nevada's law, NRS 616C.230 is similar to Utah's law with its rebuttable presumption that a work injury is caused by a worker having any amount of alcohol or a controlled substance in his system. The presumption has been rebutted in two past Nevada Supreme Court cases involving marijuana.

Last year I settled a case that was similar to the Utah case. My client, a drywall installer, had coffee and chatted with supervisors for about ten minutes before starting work. Shortly after he began working, he had to use a short step-up ladder on an uneven floor, He lost his balance, fell, and fractured his wrist. He tested positive for marijuana metabolites at the hospital, and his claim was denied. If we didn't win his appeal, he would be on the hook for large medical bills, a long period of off work with no benefits, and no award to compensate him for being unable to move his wrist normally.

I was able, however, to rebut the legal presumption that marijuana intoxication caused my client to fall from a step-up ladder that should not have been used on this project. Our expert toxicologist was prepared to testify that the amount of marijuana metabolites found in the client's urine did not prove that he used it recently or that he was impaired when he had the accident. Additionally, he had supervisors and co-workers who observed him acting and moving normally when he reported for work and had coffee with them.

Some of these intoxication cases can be won by experienced workers' comp attorneys. You do need to cooperate with your employer's request that you submit to blood or urine testing immediately after your injury. You also need to be aware that while you may win your workers' comp appeal and get the claim accepted, your employer may nonetheless fire you for not complying with their company policy on drug or alcohol use.

Criminal Domestic Violence Cases

Virginia Hunt — Thu, 26 Apr 2012 11:59:46 -0800

I went to University of San Diego School of Law with criminal law attorney Mace Yampolsky. Mace is a board certified criminal law specialist who has over 25 years' experience defending people in southern Nevada against all types of criminal charges, including DUI, drug crimes, weapons charges, and domestic violence. He is a fierce protector of an accused's rights, and has dedicated his career as an attorney to holding the legal system accountable to the law it is sworn to maintain. Below is a guest blog post he wrote discussing the importance of obtaining an experienced attorney if you are ever accused of spousal abuse:

The state of Nevada takes allegations of domestic violence very seriously and will frequently pursue a criminal action against an alleged spousal abuser- even if the victim does not want to prosecute. A conviction of domestic violence charges carries stiff penalties, including the loss of the right to own a firearm, fines, probation, or even jail time for a first time offense. With so much at stake, it is essential to have an experienced attorney who can protect your rights and build a powerful defense on your behalf.

In some domestic violence cases, false accusations are made out of spite or to further the alleged victim's own agenda. In a divorce proceeding, for example, a mother may claim spousal abuse in order to harm her husband's credibility in a custody battle. A diligent and seasoned attorney knows how to expose these accusations for the lies that they are. if the charges are legitimate, an experienced attorney will work to plead the case down to a lesser offense, such as breach of the peace or trespassing.

At the Las Vegas law firm of Mace Yampolsky & Associates, we work tirelessly to protect the rights of clients who have been charges with crimes. Each case is prepared as if it were going to trial with the goal of restoring your freedom. We fight to win.

Mace J. Yampolsky

625 South Sixth St., Las Vegas, NV 89101

Las Vegas, NV 89101

Ph: 702-385-9777

fax: 702-385-3001

Website: www.macelaw.com

Problems Obtaining Prescription Drugs

Virginia Hunt — Wed, 18 Apr 2012 12:00:00 -0800

If your claim is accepted and your authorized treating physician prescribes medication for you, but your pharmacist tells you that there is a problem, follow these steps

1. Have a copy of your claim acceptance letter with your claim number and name and address of your third-party administrator or insurer in hand when you go to the pharmacy.

2. Do not confuse things by giving your pharmacist your health insurance card. Instead, you want the workers' compensation carrier billed.

3. If the pharmacist tells you that your prescription has been denied, pay for the medication so that you can get it started if it is essential that you start it right away. For example, it you just had surgery and need an antibiotic, don't wait. Or, if you need pain medication right away, just get the medication, and then straighten out the problem. It can take a day or two to get medication problems resolved, so don't drive yourself crazy by not getting the medication if you can afford it. Keep a copy of the receipt that shows what medication you paid for, and send it to your adjuster, requesting reimbursement.

4. Call your adjuster or fax or email the name of the medication, who prescribed it, and the name and phone number for your pharmacy. Don't just leave a message or complain that you didn't get your medication authorization. Make sure you give the adjuster information she can use to fix the problem.

5. If you have a nurse case manager assigned to you case, instead of calling the adjuster, you can call the nurse case manager. She is likely to be more familiar with what the doctor prescribed, and may be able to help you quicker. Again, give her your pharmacy phone number.

6. Expect delays if the medication ordered is an expensive proprietary formula, as the insurer may question why generic wasn't prescribed, or whether other medications were tried first. Maybe your doctor can give you some samples to start if he knows that insurers usually drag their feet on authorizing this particular medication.

Unfortunately, I expect more problems in the future obtaining medication for injured workers. According to an recent article in Business Insurance, there is a growing trend among states to creating medical guidelines for doctors prescribing opioid pain medications to workers' compensation claimants. Additionally, many insurers now use intermediary companies that involve another step in the authorization process, and thus, more delays.

Undocumented Workers Are Entitled to Most Work Comp Benefits

Virginia Hunt — Mon, 09 Apr 2012 21:52:20 -0800

Injured workers in Nevada who do not have proper written proof of their right to legally work in the United States are entitled to the same benefits as any other injured worker, except for vocational rehabilitation benefits. All injured workers are entitled to medical care for a work-related injury while working for a Nevada employer, even if they are working in the United States illegally.

The injured worker does need to be able to prove that he was working for a Nevada employer at the time of the accident at work. That may be difficult if he is paid cash instead of a proper paycheck.

Assuming that the worker lied to the employer about immigration status to get the job, the worker is nonetheless entitled to medical and most compensation benefits once the employment relationship is proven.

In addition, undocumented workers may receive temporary total disability benefits, payable at 66 2/3 of their average monthly wage, up to the state maximum, if they are taken off work by their treating physician as a result of the work accident. These compensation benefits are also payable if the employer is unable to provide temporary light duty employment while the injured worker is treating for his injury. Even more surprising to most undocumented injured workers, they are entitled to receive a permanent partial disability award at the end of treatment for any permanent injuries.

What undocumentated injured workers may not receive are vocational rehabilitation benefits. Only injured workers who have an Employment Eligibility Verification Form I-9 that can be verified, are entitled to a continuation of bi-weekly checks while he or she participates in a retraining program. And, only documented injured workers may request a vocational rehabilitation lump sum buy-out if they chose not to participate in retraining.

Most workers' compensation attorneys offer a free consultation to reveiw your particular case to advise you. Don't make the mistake of thinking that you cannot get proper medical care or compensation benefits or an award just because you are in the United States working illegally. Call for a free Guide to Nevada Workers' Compensation Law in Spanish. (702) 699-5336.

Health Care Directives Are Necessary for Everyone

Virginia Hunt — Thu, 29 Mar 2012 22:15:18 -0800

Attorney Laura Stubberud is an experienced estate planning attorney who wrote the following guest blog post. I thought it was important information for injured workers. For more blog posts on estate planning and elder law, please visit Attorney Stubberud 's blog at www.nvestatelaw.com.

By Laura Stubberud

I am often asked what is the one thing that every person needs in an estate plan. The answer is easy: Health Care Directives. Regardless of whether you have any money or property, you need to address decisions to be made during your life in the event of serious injury, illness or incapacity. I tell all of my clients that as soon as their children turn 18 years old, they need to sign a durable power of attorney for health care.

They are almost always surprised until I remind them of that funny law known as HIPPA (the Health Insurance Privacy and Accountability Act - http://www.hhs.gov/ocr/privacy/). You know what that is. Every time you go to a new doctor or are admitted into the hospital, you must sign a HIPPA release. Under this law, health care providers are not allowed to share your medical information with anyone who is not legally entitled to receive that information, including family and friends.

Imagine if your adult child were in a car accident and unconscious and you were denied information about his or her medical condition. A durable power of attorney for health care allows you to specify who can receive your medical information. In addition, the power of attorney allows you to set forth your desires regarding medical care if you are unable to communicate those desires yourself. These directives allow you to specify your decisions regarding end-of-life matters as well as religious provisions, decisions regarding nursing home care, surgeries, etc.

Everyone over the age of 18 needs a durable power of attorney for health care. It may be a matter of life or death, but it is definitely a matter of love.

The Law Office of Laura E. Stubberud , 2831 St. Rose Pkwy., Suite 303, Henderson, NV 89052. Phone 702-589-4804, email at laura@stubberudlaw.com.

Benefits Unfairly Suspended? Fight Back!

Virginia Hunt — Mon, 26 Mar 2012 15:49:10 -0800

Workers' compensation insurers and their TPA's often suspend compensation benefits when an unrelated medical problem surfaces to delay surgery or treatment for the work injury. Insurers call it "Care Interrupt". I call it kicking an injured worker when he's already down.

For example, I had an injured worker last month who was scheduled for a work-related back surgery. She was already receiving TTD benefits when her surgery was scheduled for the following week. She had to get an EKG done as part of the usual pre-surgery clearance. Her EKG was slightly abnormal and her doctor thought she should have a cardiac treadmill stress test just to make sure she didn't have a heart problem before she underwent back surgery. It took her almost four weeks to get an appointment with a cardiologist to get the stress test done and to have her primary care doctor review it and give the workers comp doctor clearance for the back surgery.

When the work comp adjuster heard that she had an abnormal EKG, my client's TTD benefits were suspended until she gave the work comp doctor surgical clearance. I successfully argued before a hearings officer that the adjuster was wrong in stopping benefits, because my my client did everything as quickly as she could to get surgical clearance.

I argued this issue before the Nevada Supreme Court years ago, and the Court agreed with me that suspension of benefits is wrong under NRS 616.230(5) when the injured worker is not deliberately delaying treatment for the work injury. Unfortunately, the Court did not publish that decision. The Court does not publish its decision in every case, and an unpublished opinion cannot be cited as legal precedent. This means I have to present this same legal argument in each new case, and that insurers keep suspending benefits, betting on the fact that most injured workers don't pursue an appeal.

If your benefits are suspended because you need medical treatment for an injury or illness that is not work-related, make sure that you talk to an experienced attorney. Each case is different, but many suspensions for "care interrupt" can be reversed on appeal. Fight back!

Free Consultation: New Evening and Saturday Hours

Virginia Hunt — Thu, 15 Mar 2012 08:42:37 -0800

Most injured workers are able to keep working while they get medical care for their work injury. That makes it difficult for some to find time during usual business hours to see an attorney for a free initial consultation regarding their workers' compensation claim. I am therefore experimenting with keeping the office open one night a week into the evening and one Saturday afternoon each month as a way to allow more injured workers access to information. It is very important when you have a serious injury that could result in permanent impairment that you get reliable information about your Riggs and the claims process as soon as possible. Appeal times on the decisions made by adjusters on claims on very short- only 70 days, and you could lose thousands of dollars in benefits now and in the future by not knowing your rights. If you cannot get away for an initial consultation during normal business hours, be sure to mention that to my legal assistant and we will make every effort to accommodate you. In the meantime, call us at 699-5336 for a free guide written for injured workers by Virginia Hunt, Esq.

Am I Entitled to a PPD Award If I'm Released Full Duty?

Virginia Hunt — Wed, 14 Mar 2012 06:52:47 -0800

Injured workers, employers, and even doctors on workers' comp provider lists in Nevada remain confused about whether an injured worker who is able to return to work full duty is entitled to a permanent partial disability award. Depending on the injury, an injured worker may be entitled to a rating evaluation and an award, even though the worker has been released to return to his pre=accident job without any permanent work restrictions.

The criteria for determining whether an injured worker has a ratable impairment is in the AMA Guide to Evaluation of Permanent Impairment 5th edition. That criteria focuses on anatomic alteration or dysfunction , as opposed to an inability to perform particular job requirements. For example,an inability to move an injured shoulder in one or more of the measurable planes of motion may result in a whole person percentage of impairment even if the injured worker has a sedentary job that requires very little use of the shoulder.

Another example of how this works would be an attorney and a piano player who both have a serious injury at each of their jobs resulting in the amputation of one of their pinkie fingers. Even though the attorney may be able to return to her job full duty, learning how to type with nine fingers, she would receive the same percentage of impairment as the piano player for an amputation of the pinkie finger. The piano player, if unable to return to work playing piano, would also be entitled to a retraining program or a vocational rehabilitation lump sum settlement in addition to a permanent partial disability award.

If your treating doctor checks off the box "no ratable impairment" on your final progress report, your adjuster will send you a letter stating that your claim will be close without an impairment evaluation. If you think that determination is in error and that you do have a ratable impairment, take advantage of a free consultation with an experienced attorney before you go through the appeals process and before you pay $693.31 to obtain a rating yourself. If your doctor tells you that you won't get a rating because you can return to work full duty, you should check with an attorney whether the doctor is correct or not . Make sure that you file an appeal within 70days of the insurer's determination letter closing your claim without a rating.

Attorney Profile Update for Virginia Hunt

Virginia Hunt — Fri, 09 Mar 2012 15:38:16 -0800

Attorney Virginia Hunt was recently invited to join the experienced workers' compensation attorneys from the various states that comprise the Larson's National Workers' Compensation Advisory Board for LexisNexis, the world's largest legal publisher. She contributes regularly on Nevada law with her award-winning blog to the LexisNexis national blog on workers' compensation issues.

Ms. Hunt was also appointed to serve as a mentor for newly admitted Nevada attorneys as a part of the mandatory Transitioning into Practice program recently established by the State Bar of Nevada under the direction of the Nevada Supreme Court. She is no longer a Committee Member of the State Bar's Continuing Legal Education program, but recently authored and hosted a seminar for the State Bar's continuing legal education program. The seminar addressed permanent partial disability awards and more difficult rating issues.

Patient Advocate a Necessity If You Are Hospitalized

Virginia Hunt — Thu, 08 Mar 2012 11:06:34 -0800

Most injured workers who call me for advice are frustrated with poor medical care or problems obtaining good care as a result of insurance issues. Making sure that injured workers get the best possible medical care is what I do for a living, so I didn’t need a personal experience to convince me how important a patient advocate is when a person is ill and hospitalized. Nonetheless, last month I personally got a huge dose myself of bad medicine and lousy insurance practices when I was unexpectedly hospitalized. During my brief (thankfully) hospital stay, the following occurred:

A typographical error in a CT scan report wasn’t caught until after I was given IV medication for another serious condition I did not have.
I was medicated and then strapped to a gurney and transported at midnight against my wishes to another medical facility from the hospital. My condition was actually worse when I was released from the hospital. This happened without any notification to my family.
I was lied to by a doctor as to whether a prescribed IV antibiotic could be given at home as opposed to at the dirty secondary facility my insurance company supposedly required for another week.
I was denied access to my own medical records for several hours while administrators grappled with what the law and their own policy says about patients’ rights to review their own records.

These occurred during a 72-hour period when I was too sick to demand that I speak to insurance adjusters and hospital administrators. Fortunately, I have two highly-trained and very loyal legal assistants who stepped up to make sure that nothing worse happened to me. When I was able to talk and demand better care for myself from my insurance company and from medical providers, things changed significantly for the better.

At a minimum, if you or a family member need hospitalization, have someone go with you who can act as a patient advocate. That person should be comfortable with asking a lot of questions, particularly during check-in and discharge. Make sure that your advocate has a list of medications you take daily. Give the phone number of this person to hospital personnel and ask that this person be contacted if you are moved or scheduled for a surgical procedure. Bring a cell phone and a charger with you so that you have easy contact with your advocate and family. Bring a small notebook so that you can keep notes and write down important phone numbers.

Do not be intimidated, and be persistent in getting answers to your questions as to what is happening to you. Make sure that you understand what treatment you are getting, what medications you are being given, and who ordered them for you. Do not assume that people know what they are doing. Finally, bring a huge bottle of hand sanitizer with you. The AARP Bulletin, March 2012, has frightening statistics on the number of people who are victims of hospital mistakes, and what else you can do to protect yourself when hospitalized.

Should I Agree to the Insurer's Rating Doctor?

Virginia Hunt — Tue, 06 Mar 2012 16:57:45 -0800

If your treating physician on your accepted workers' compensation claim in Nevada reports to your claims adjuster that you may have a ratable impairment, you should be scheduled for an impairment evaluation 30 days later. This evaluation, also called a rating, will be done by one of the 138 doctors and chiropractors who have been tested and authorized by the state agency, DIR, to perform ratings. The purpose of the rating evaluation is to determine your percentage of impairment so that a permanent partial disability award can be offered. (The additional two factors that determine a PPD award in Nevada are the injured worker's average monthly wage at the time of the injury, and the injured worker's age when he or she has the evaluation.)

As of March 1, 2012, the Medical Unit at DIR has138 physicians and chiropractors on a rotating list. When a claims adjuster requests a rating, the Medical Unit secretary must assign the next one from the rotating list. If the injury is to a muskuloskeletal part, such as the shoulder or neck, a chiropractor may be assigned to do the rating. Some of the chiropractors on the rotating list are excellent rating doctors- fair, knowledgeable about the Guides and anatomy, and they correctly explain their findings and conclusions.

Nevada law allows adjusters to suggest and agree with injured workers on a particular rating doctor. If the injured worker, or his attorney, agree to a doctor suggested by the adjuster, the agreed-upon doctor can do it instead of the doctor assigned by DIR. Some adjusters will send unrepresented injured workers a list with the names of about six doctors and ask whether the injured worker will send back an agreement to one. If the agreement isn't returned, the adjuster must use a DIR-assigned doctor from the rotating list. You don't lose your right to obtain a second rating if you disagree with the rating physician you agreed to rate you.

An injured worker asks me: Should an injured worker agree to a rating doctor suggested by the insurer, or insist that the insurer schedule him with one of the 138 doctors on the rotating list?

The answer depends on whether the injured worker has an experienced attorney. Otherwise, it is likely that the injured worker will not be knowledgeable about each of the doctors on the insurer's short list . If the injured worker, or his attorney, doesn't know anything about the doctors , he should NOT agree. The insurer will likely suggest doctors that find lower or average impairment percentages, or that are aggressive on apportionment and like to subtract percentage points for pre-existing conditions. Despite the objective of the AMA Guides to Evaluation of Permanent Impairment to have rating methods that will easily duplicate results , there can be a significant difference depending on which doctor is doing the exam.

If the injured worker has a lawyer , he should hope that his attorney is familiar with how each of the different rating doctors are likely to apply the Guides. Sometimes attorneys for injured workers agree to a rating exam with a doctor suggested by the insurer. Not all doctors suggested by insurers are necessarily a bad choice to rate a particular client. The key is knowing how a particular rating doctor is likely to interpret the Guides. That comes with experience.

There are injured workers, not knowing whether a suggested rating doctor is likely to be better than one assigned from the rotating list, will circle a name anyway and return the agreement People who do that hope that the adjuster will act in the injured worker's best interests. The reality is that insurer's and their employees must act so that they can show a cost savings on claims to employers concerned with premiums. Injured workers should understand that adjusters may be acting within the bounds of the law, but not be acting within the injured worker's best interests. Therefore, my answer to the question is a resounding "NO". Do not make agreements with insurers without knowing the consequences of what you are doing.

Sexual Problems May Be Related to Spinal Cord Injury

Virginia Hunt — Fri, 10 Feb 2012 18:30:56 -0800

Many injured workers with severe spinal cord injuries are reluctant to mention to their treating physician that they have had sexual dysfunction since their work accident in Nevada. Males in particular are embarrassed to bring up this topic with their doctors. Unless the doctor initiates the discussion and directly asks about any sexual problems, the problem isn't noted in the dictated reporting, and isn't treated. And if the problem is permanent, the injured worker isn't properly evaluated for impairment.

It is very important that if you have had a serious spinal injury that you tell your treating physician about any loss of control of the bladder and/or bowels (involuntarily urinating or soiling yourself), any loss of sensation to your genitals and surrounding area, and any inability to engage in usual sexual activity.

Orthopedic surgeons, neurosurgeons, and physiatrists are busy doctors, and your appointment may already seem rushed without you bringing up an embarrassing problem . However, you should not delay in asking the doctor about these symptoms. If there is a nurse case manager that is present at doctors' visits, you might want to ask the nurse to allow you to speak to the doctor privately about a symptom that is bothering you. You have the right to see the doctor alone. Unless you speak up and tell your doctor who is treating your spinal injury about theses problems, nothing Will be done to investigate and find the right treatment.

Once you do discuss the problem, your spine doctor may want to refer you to a urologist for testing, or to your own primary care doctor to rule out other possible non-industrial causes for your complaints. Adjusters will usually pay for consultations to determine the cause of the problem if your spine doctor makes the request for a consultation. If it's found that the spinal cord injury isn't the cause, at least you will know what you need to do to treat the problem.

If there is a direct causal connection between your work injury and loss of bladder or bowel control, or sexual dysfunction, your permanent partial disability (PPD) award could be significantly increased when you are rated under the AMA Guides to Evaluation of Impairment, Fifth edition. The injured worker must be vigilant about having these impairments included in the rating.

Unfairly Surprised by Your Doctor's Work Release?

Virginia Hunt — Fri, 10 Feb 2012 14:52:19 -0800

I caution all injured workers to look carefully at the physician progress report (PPR) they are handed at the end of each visit to their doctor assigned to treat their industrial injury. Most doctors and clinics that are on the various third-party administrators' medical provider lists use the D-39 form approved by the DIR. Sometimes the clinic or doctor will use a form that looks different, but all PPR's used by Nevada medical providers must show whether the doctor is taking the patient off work completely, or is giving work restrictions until the next scheduled appointment.

If the doctor does not hand you a PPR showing you what your work status is, ask for a copy before you leave the doctor's office. It is important that you get a copy of the PPR so that you know for certain whether the doctor has released you to return to work, and if so, whether you have work restrictions. If the doctor's assistant tells you that you don't need a copy, and that they will fax a copy to your insurer and your employer, nicely explain that you are entitled to your own copy.

Unfortunately, there are a few doctors on the Nevada provider lists that take a cowardly and unprofessional approach to releasing workers' compensation patients back to work. Instead of explaining to the patient that the doctor thinks it's time to return the patient to work, or to any available light duty job, the doctor says nothing when in the examining room with the patient. If the patient doesn't get a copy of the physician's progress report, and the doctor didn't discuss work release status, the patient only learns about what his doctor has done when he doesn't get his next compensation check in the mail.

These doctors shirk their responsibility to their patients because they want to avoid an argument from the patient. The doctor may have good reason for changing the patient's work status, and if so, the doctor should be willing to discuss the reason with the patient. Otherwise, It is extremely unfair and bad medical care not to inform the patient of his changed work status.

If this has happened to you, or you suspect that your doctor may not be up front with you later, be aware that you have an absolute right to change physicians within the first 90 days of your claim. After 90 days you may still request it, but it will be harder if the insurer denies your request and you have to go to hearing. It is also very hard to change doctors after a doctor has just performed surgery on you. Just don't ignore your gut feeling that your doctor is not concerned with your well-being and at least get a free legal consultation to discuss what you can do to protect yourself. Finally, please help other injured workers learn about their rights regarding choice of physicians by sharing this resource and the DIR's website information.

Expensive to Obtain a Second Rating

Virginia Hunt — Mon, 30 Jan 2012 19:16:23 -0800

Each year the WCS Medical Unit of the Division of Industrial Relations (DIR) updates the Medical Fee Schedule that determines the fees for medical services, including impairment evaluations. Effective February 1, 2012, the current 138 authorized rating doctors may charge $693.31 for up to two body parts. $231.54 is chargeable for each additional body part. For example, an injured worker with an injury to his neck, his low back, and to his left shoulder has three injured body parts. A rating exam of all three injured body parts would cost $924.85.

An injured worker has the right to obtain a second rating if he disagrees with the percentage determined by the initial rating doctor. However ,the cost of a second rating must be paid up front by the injured worker. Whether it makes sense economically to pay for a second rating, or whether a less costly rating review based only on the medical records is a better tactical move is a decision for experienced legal counsel. Sometimes it is possible to convince a hearing officer to order the insurer to pay for a second rating exam without having a second rating evaluation. An injured worker, or her attorney, must be very knowledgeable about how percentages are determined under the AMA Guides before paying for a second rating. This office will review a rating report for free to help injured workers determine whether to accept the PPD offered, or to contest the percentage.

Be Careful What You Read

Virginia Hunt — Fri, 13 Jan 2012 12:38:29 -0800

The problem with the Internet articles I see on many sites that look like they provide good information for injured workers is that the content is not specific to Nevada workers' compensation law. Each state has its own laws that determine work comp benefits. If information is not specific to Nevada law, then injured workers in Nevada will be misinformed. Injured workers may think that they are getting state-specific information just because they click on a particular state. However, despite the professional appearance of these websites, they rarely provide timely information on Nevada laws and claims practices.

When you are surfing the web, check whether the article or blog post is authored by a Nevada lawyer. Many companies that market search engine optimization for law firms sell canned articles that lawyers can post as their own on their websites, blogs, or twitter accounts. The ethics of an attorney doing this is questioned by Kevin O'Keefe, founder of the Lexblog company that provides a publishing platform for my law blog. Lexblog has never tried to sell me blog posts written by their company marketing agents. What Internet marketing agent is going to know more about Nevada workers' compensation law than I do? Be careful that what you are reading on the Internet is from a reputable Nevada attorney .

5 Huge Mistakes Injured Workers Make

Virginia Hunt — Thu, 12 Jan 2012 13:07:39 -0800

1. Going along with bad medical care

You don't have to accept substandard medical care just because you were injured at work. It is hard to correct a botched surgery. If you feel reluctant or have a gut feeling that the surgeon the insurer has assigned to you isn't very good or isn't listening to you, change doctors. You have the absolute right within the first 90 days of your claim to change to a different doctor on the insurer's provider list. And even after the first 90 days, you may still request a different doctor. Make your request for the provider list in writing, and make your request to change doctors in writing.

2. Getting unreliable information about the claims process

Instead of relying on friends and co-workers to educate yourself about the Nevada claims process, why not read the blog posts I've written on almost every topic concerning Nevada workers' compensation claims? If you want to research the law yourself, in addition to reading the statutes (NRS 616 and 617), and the regulations (NAC 616-617), you must be familiar with Nevada Supreme Court decisions interpreting the law. You must also know about the actual practice of the hearings and appeals officers to have some idea of what appeals officers, the district court judges, and Nevada Supreme Court justices are likely to do in your case. Take advantage of a free consultation with a reputable attorney.

3. Accepting a PPD award when you want more medical treatment

Even if you don't elect to receive your permanent partial disability (PPD) award in a lump sum, and the insurer is paying your PPD award in installments, you must appeal claim closure if you want more medical treatment. First ask the adjuster whether he or she will allow you to return to the last treating doctor for more treatment. If not, then go to any rating exam the insurer schedules so that your benefits aren't suspended. Also, you must file an appeal. You will have to get a report from your private physician to show the hearings officer that you need treatment. Don't wait, thinking that you can easily reopen your claim later. It's hard to reopen claims.

4. Waiting to add other injured body parts

Remember that you can't reopen a claim to get treatment for an injured body part if it was never accepted before the claim was closed. If your claim acceptance letter only references some of your injuries, notify the adjuster in writing. Ask the adjuster to at least allow your doctor to examine your other injuries before the adjuster outright denies these injuries to other body parts. File an appeal on time (within 70 days) of any letter the adjuster sends denying injuries to other body parts. You may also need to go to your own doctor using your health insurance if other injured body parts are denied.

5. Not planning for your vocational future

Be realistic and honest with yourself and your doctor when discussing whether you are going to be able to return to your job at a later date. If you know or think you might not be able to return to your usual occupation, try to find out now whether your employer is likely to offer you a permanent modified job or not. If you or a family member is dependent on the health insurance your employer provides, then you must start being creative and persistent now in persuading your employer to keep you despite any permanent physical work restrictions. Your employer does not have to find you permanent light duty work. Alternatively, start thinking about retraining programs and start visiting schools that have 9 to 18-month vocational programs.

Neck Pain Update on Physical Therapy

Virginia Hunt — Tue, 03 Jan 2012 11:34:04 -0800

I promised to give my honest assessment on whether the McKenzie Method used by the physical therapist I am seeing is helping me. Today, back at work with many people needing to get back on track with their medical care and benefits on their claims after a long holiday weekend, my neck is stiffer than ever. I have only been able to schedule physical therapy appointments once a week with the two holidays, so I should mention that. On most accepted Nevada workers' compensation claims, physical therapy is scheduled for three days a week, and that may make a huge difference. (I do not have a workers' compensation claim. My neck problems are related to age, hours spent in sub-optimal postures in front of a computer, reading late into the night in bed, a few rear-end fender benders over the years, and several significant horse-back riding injuries).

I'm finding that it is frustrating that I am forgetting to do the exercises I have been taught by the therapist at least five times a day. The exercises probably take all of ten minutes to complete, so I don't have a good excuse for not remembering. I think I will simply have to set the alarm on my phone today to make myself do them. Of course, it would be so much easier to take a pill of some sort and have the problem with decreased range of motion, stiffness and pain just disappear. However, I cannot do that. I want to remain clear mentally and crisp with my reaction time for my horse-back riding.

I see that I reported that my range of motion was improved when I actually did the exercises, so I will resolve to make a better effort this week. I did do a lot of horse-back riding the past five days. The type of riding I do is strenuous- jumping and advanced English riding (dressage) on a young Thoroughbred who is emotionally the equivalent of a teenage boy. I also had to survive a New Years Eve party at my house for my son's 22 birthday. This last holiday wasn't exactly relaxing for me. So, here's to trying to take more personal responsibility for my own health in 2012.

Nevada Workers' Comp Fraud You Don't Hear About

Virginia Hunt — Fri, 23 Dec 2011 20:52:18 -0800

Nevadans have been convinced over the years that there are many workers who try to take advantage of the system, either by filing false claims or by prolonging their time off work, or by collecting undeserved permanent partial disability awards. What the public in Nevada rarely hears or reads about however, are the employers caught committing workers' compensation fraud, or the insurers who intentionally fail to pay legitimate claims. This type of fraud may be far more prevalent than fraud by employees.

In October, 2011, a national, non-profit group of mostly claimants' attorneys, the Workers Injury Law and Advocacy Group (WILG), published a paper entitled "Employer and Insurer Fraud: Boosting Bottom Line profits at the Expense of Workers and Society". The premise of the report is that workers' comp insurers and their administrators have successfully misinformed the public and elected lawmakers that employee fraud costs the insurance industry more money than employer or insurer fraud in uncollected taxes and uncollected premiums. WILG states that the insurance industry writes or funds most of the reports on workers' comp fraud, and therefore wants the public to believe that injured worker fraud is rampant. Insurers are able to charge higher premiums and advocate for legislative changes to reduce compensation benefits to injured workers if the public is convinced that injured workers are defrauding the system.

WILG states that the actual statistics show that both employer and insurer fraud are a far greater problem, involving much larger sums of money, than fraud by injured workers . The statistics on the number of employers who are caught misclassifying employees to pay a lower premium or to avoid paying a premium at all are usually based on employer audits conducted by state agencies that oversee each state's workers' compensation system. Less than 2% of Nevada employers were audited in Nevada in 2010 according the WILG report.

In an effort to obtain unbiased information on whether employer or employee fraud is the greater problem in Nevada, I contacted Jennifer Lopez, Public Information Officer, of the Nevada Attorney General's Office. I asked Ms. Lopez for figures on injured workers who were prosecuted for fraud, and statistics on employers who were prosecuted for under-reporting premiums or misclassifying employees. The Nevada Attorney General's Office is statutorily responsible for prosecuting both injured worker fraud and employer fraud under the Nevada Industrial Insurance Act.

Ms. Lopez explained that in order to prove injured worker fraud, it is more difficult for a prosecutor to prove beyond a reasonable doubt that the employee criminally intended to cheat the insurer or self-insured employer of undeserved benefits. For fiscal year 2011 (7/1/10 through 6/30/11), only 19 of the 93 cases that were investigated were prosecuted. In contrast, during fiscal year 2011, the Nevada Attorney General's Office opened 246 employer cases for investigation, and prosecuted 142 of those employers.

Ms. Lopez noted that employer cases are usually misdemeanor offenses that involve less than $250 pertaining to employee misclassification or under-reporting of payroll. She emphasized that it is easier to prove employer fraud using the national insurance database information. Ms. Lopez did not elaborate on how many employer cases involved misdemeanors versus felonies.

Given the different standards of proof applicable to prosecuting employee fraud versus employer fraud, I'm not reaching any conclusions as to which type of fraud is the greater problem in Nevada based only on statistics from the Nevada A. G.'s Office on the the number of each cases prosecuted.

As I was gathering this information from the Nevada AG's Office and looking at various reports from both insurance industry groups and injured worker advocacy groups, I read a recent Fox News 5 article about the Nevada AG's prosecution of a Maryland woman for workers' compensation fraud in Nevada. Nevada Attorney General Catherine Cortez Masto was quoted as saying, "Workers' compensation fraud is insidious. It quietly drives up the cost of coverage, a bill that nearly every employer in every sector will have to foot, " said Attorney General Masto. "My office will continue to aggressively prosecute these cases."

I don't think the statistics from Attorney General Masto's office support her comment that workers' compensation fraud in Nevada, at least by injured workers, is insidious. Over 58,000 claims were filed in fiscal year 2009 according to Nevada's DIR Research and Analysis Supervisor, and the U.S. Bureau of Labor's website shows that 42,300 Nevada claims were filed in fiscal year 2010. If less than 100 cases of possible fraud by employees are referred to the Nevada Attorney General's Office each year, and less than 20% of those cases are prosecuted, I don't know what information Ms. Masto was relying upon.

It makes for more interesting reading in the media to hear about someone getting caught red-handed on surveillance video faking an injury than it is to read about an employer not paying premiums on undocumented workers, or employers claiming that workers are independent contractors when they are really employees. I think it is unfortunate that we don't have a true picture of the extent to which employee or employer fraud costs all Nevadans. Exaggerating what information we do have doesn't help.