Nevada Workers' Compensation Law Blog

Problems with Your Vocational Rehab Counselor?

Virginia Hunt — Wed, 15 May 2013 21:46:15 -0800

I was just sharing some war stories on line with other claimants attorneys about our experiences with particular vocational rehabilitation counselors. There is no question that some counselors do a poor job of assisting injured workers with realistic and fair plans for returning the injured worker to work. However, the injured worker can make the best of the vocational rehab experience by doing the following:

1. Be sure you understand the rules.

During your first meeting with your voc rehab counselor, you will learn that you only have 60 days to decide and present a retraining plan to the adjuster. Make sure you know when that 60 days ends.

Your case is assigned to the voc rehab counselor, and your 60 days is running when neither you nor your counselor knows the length of a retraining program that can be authorized. Nor will you or your counselor know how much a minimum lump sum buy-out will be. Most injured workers won't get the results of their permanent partial disability rating when they must start working with a voc rehab counselor. (The percentage of impairment from the PPD rating determines whether you get 9, 12, or 18 months of retraining, and it will determine how much the minimum voc rehab lump sum buy-out will be.) You must still use this time to investigate whether you will want a retraining program, or whether you will accept money and find yourself another job.

2. Keep your expectations realistic.

The voc rehab counselor is paid by the insurer. If the counselor doesn't please your adjuster, the counselor won't continue to have a job. However, good counselors have integrity and will try to do what is right for the injured worker. Your counselor isn't going to advocate for you like your attorney.

if your vocational test results show that you have no math skills, don't expect the counselor to support your desire to be an accountant. There are many limitations that may apply to you, such as the length of a program that can be authorized for your impairment percentage, your own work experience, your aptitudes for particular programs, whether a program actually exists in Nevada, whether you have had criminal convictions that prevent particular employment, your physical limitations, and your chances for employment when you complete the program.

3. You want the counselor to want to help you.

If you miss your appointment with your counselor, or you are disrespectful, then don't expect your counselor to go the extra mile to help you. Some claimants don't really want to go to school, and they frustrate and waste the time of the counselor by not initially opting for a buy-out instead of a program.

When you simply cannot stand your counselor, you may ask for a new counselor, but understand that you have no legal right to have a different counselor assigned to your claim. Listen to what the counselor recommends for you, and research the training programs yourself instead of depending on the counselor to find a new career for you.

--Written by Virginia Hunt, Hunt Law Office

Is Your Work Comp Insurer Broke and Belly Up?

Virginia Hunt — Wed, 08 May 2013 05:48:05 -0800

On April 19, 2013, S &C Claims Services, Inc., sent a letter to all injured workers insured by Builders Insurance Company that their checks due that week wouldn't be sent as scheduled. A Las Vegas District Court ordered the Commissioner of Insurance to act as Temporary Receiver for the company while future payments were scheduled to be made by the Nevada Insurance Guaranty Association.

When an insurance company that underwrites the workers compensation policies for Nevada employers goes broke and files for bankruptcy, as did Builders Insurance Company, Nevada law provides for a continuation of claims benefits through the Nevada Insurance Guaranty Association.

Nevada law (NRS title 57) provides that when an industrial insurer in Nevada files for bankruptcy, all claims of injured workers under workers' compensation policies issued by that insurer should be eligible for payment by the Nevada Insurance Guaranty Association. In the instant case involving Builders Insurance Company, while compensation checks will be issued through the Guaranty Association, S&C Claims Services, as their third-party administrator, will continue to make determinations on medical care, PPD awards, and vocational rehabilitation.

Fortunately, I do not have any clients i with injury claims against Builders Insurance Company right now. I don't know how long the Guaranty Association is taking to send out compensation benefits. I can only tell you that in the past, when I've had to go through this with clients with bankrupt insurers, it was another hassle causing further hardship and delay to the injured worker. Unless I demanded prompt action on the claim and kept on top of requests for treatment authorizations, it took months for anything to happen.

If you currently have a claim under a builders Insurance Company policy and received a letter from S&C Claims Services, for now you should continue to contact S&C for authorizations for medical care and questions about your benefits. However, your compensation checks will have to be issued through the Nevada Insurance Guaranty Association. Their contact information is as follow:

Nevada Insurance Guaranty Association (702) 368-0607, fax (702) 368-2455, Email: service@niga-pc.org, web site: www.niga-pc.org. Click through to their website to learn more.

--Written by Virginia Hunt, Hunt Law Office

The First 30 Days of Your Nevada Work Comp Claim

Virginia Hunt — Fri, 12 Apr 2013 22:34:29 -0800

The first 30 days of a serious job injury claim are confusing and scary. Here are a few important tips :

Keep a copy of the C-4 Claim for Compensation form that you filled out to start the claims process when you first got medical care. Check it to see whether you were taken off work or released to work with restrictions.
It is the worker's comp adjuster who will be making important decisions on your medical care and compensation benefits. Ask your employer or a clinic staff person to give you the adjuster's name, phone number and fax number.
An adjuster has 30 days to accept or deny your claim. If your employer questions whether you were hurt at work, your assigned claims adjuster may want to take a recorded statement by phone before deciding to accept or deny your claim. (Now would be a good time to get a lawyer if you think your claim will be denied.)
Unless you require real emergency care by a specialist, don't expect your adjuster to approve expensive diagnostic tests like MRI's until the adjuster decides to accept your claim.
If you don't like the medical care at the clinic, unless you have an emergency, the adjuster won't allow you to transfer care to a different doctor or clinic until the claim is accepted.
If your claim is accepted and you need to see a specialist like an orthopedic physician, fax a request to your adjuster for the names of the doctors on the provider list. You may request transfer to a doctor you choose from the provider list. Try to make an informed choice.
In order to receive compensation benefits, you must be off work for 5 days in a row, or 5 days within a 20-day period of time. You must have an off work slip by the authorized treating doctor. Calling in sick without a doctor's note will not qualify you.
If the clinic doctor releases you to return to work with restrictions, you must call your employer and ask whether your employer has temporary light duty work within your restrictions. Show up for work if your employer tells you to come in for modified work. If your employer doesn't have modified work available, then you need to request work comp benefits from the adjuster.
if you are worried you may need a surgery or that you will be unable to return to work soon, get a free consultation from a reputable attorney so that you know what else to expect and what your rights are under the law. If you aren't good about reading the fine print of papers you receive in the mail about your claim, getting legal help is even more important.

Why Nothing is Happening on Your Claim

Virginia Hunt — Thu, 28 Mar 2013 05:56:45 -0800

Most injured workers who call my office are fed up with delays in getting decent medical care or getting compensation checks from the workers' compensation adjuster. Here's a list of why you might be having problems:

1. Your claim hasn't been accepted yet.

The adjuster handling your claim for your self-insured employer, or the third-party administrator handling your claim for your employer's insurer has 30 days from the date she receives the C-4 claim form from your doctor to accept or deny your claim. If the adjuster or your employer has questions about whether your claim is a legitimate one, there may be an investigation during this time. If the adjuster calls you to take a recorded statement and has a lot of questions about who was present when you were injured, how you were injured, or whether you had previous injuries, expect a delay.

2. Your claim has been denied.

If your claim is denied, you don't get anything- no medical care and no compensation benefits. You must file a Request for Hearing that comes with the claim denial letter. A hearing will be schedule in about two weeks from the date you file for hearing. You must then convince the hearings officer that your claim should be accepted. d

3. Your adjuster hasn't received requests for care from your doctor.

Unless you have an emergency medical problem, almost all medical care has to be authorized first through the claims adjuster. Often the delay is caused by the doctor's office not sending a fax request to the adjuster so that a test can be ordered, or physical therapy approved, etc. Adjusters generally process these faxed requests for medical care within five business days, so don't assume that the delay is caused by the adjuster. It could be that your doctor's office isn't doing what they should be doing to get you necessary treatment.

4. Treatment guidelines require that the doctor try other treatment first

Doctors familiar with the workers' compensation system know that they must follow particular treatment guidelines. If an injured worker reports to a clinic with a shoulder strain-type injury, the doctor won't order a MRI immediately. The doctor will first want to see how you respond to anti-inflammatory medication and physical therapy. If you know that you have a serious injury, and you aren't getting any better with therapy, get help right away to select a good doctor from the insurer's provider list.

5. You've established a bad relationship with the adjuster

Most work comp adjusters have too many claims assigned to them. If you call multiple times a day or every day, you will just annoy your adjuster and cause further delay on your claim. You have to make it so that the adjuster wants to help you. If you have a serious injury, you might want to consider hiring an attorney who knows who your adjuster is and how to get things done.

6. You haven't submitted the proper forms

Most adjusters require that you send in a Request for Compensation D-6 form in order to get a bi-weekly compensation check. The adjuster usually includes a blank D-6 form when he sends a compensation check so that you will get paid in the next two weeks if you are still off work. If you didn't get this form and return it right away, your next check will be delayed. You can download this form here if you need one.

7. Your doctor isn't very good

The most important aspect of your claim is getting the best possible medical care. A doctor who doesn't listen to you or who isn't actively trying to diagnose your injury will drag things out for weeks or even months. You know your own body. If you aren't getting any better and nothing much is happening medically, get a free consultation with an attorney who is familiar with the doctors on your insurer's provider list. Find out who the best doctors are, and then request a change of doctors.

--Written by Virginia Hunt, Hunt Law Office

Home Health Care by Spouses

Virginia Hunt — Mon, 25 Mar 2013 07:34:43 -0800

After a serious Nevada work accident and hospitalization, the injured worker may require a nurse, then unskilled nursing care at home to go to the bathroom, bathe, and make meals. This need for home health care often falls through the cracks if the treating surgeon forgets to prescribe attendant care, or the hospital coordinator doesn't follow through getting it authorized with the claims adjuster. If a nurse case manager isn't assigned to the claim, the adjuster may get the request, but may not arrange for it on time. What often happens is that the injured worker's family or closest friends must step in to provide home care during the critical time following the patient's release from the hospital or from a surgical center.

If a spouse or other family member takes time off their own jobs in order to provide necessary care, they are unfairly losing valuable vacation, family medical leave time, and wages. On many claims where the injured worker isn't represented by counsel, there hasn't been any telephone communications between the claimant and the adjuster. The injured worker and his family expect that the doctor, the insurance company, or their employer will take care of this need. Wrong. You can't just expect things to happen in the workers' comp world.

The claimant or his family should try to make sure that home health care is authorized and scheduled before the claimant comes home from the hospital or from the surgical center. It's important also that any home health care agency that supplies home health care bills the workers' compensation carrier so that the injured worker isn't billed for co-pays.

If you want your spouse or another family member to get paid for taking care of you, don't wait until after care is provided to ask the insurer about reimbursement. Almost twenty years ago, the Nevada Supreme Court decided that a family member who wants to be reimbursed for providing home health care must request this from the insurer before providing care. Additionally, the injured worker must show that a doctor prescribed it as medically necessary. SIIS v. Snyder, 109 Nev. 1223, 865 P2d 1168 (1993).

In addition to having a physician prescribe home health care, the adjuster has to be persuaded that your family attendant is a reasonable substitute for unskilled help from a home health care agency. The amount the insurer must pay for home health care is set forth at p. 4 in the Nevada fee schedule, and the insurer will not pay a family attendant more than it would have to pay for outside agency help.

I have had cases where I have been retained after a family member has provided attendant care without requesting preauthorization. Some adjusters are willing to pay a reasonable amount of money, not to exceed the fee schedule, after the fact. However, the better practice is to ask for it before it is necessary. NRS 616C.440(1)(c) is the statute that allows for attendant care expenses on a claim.

--Written by Virginia Hunt, Hunt Law Office

Suspended Benefits for a Non-industrial Medical Condition

Virginia Hunt — Sat, 23 Mar 2013 07:43:41 -0800

Some injured workers are delivered a low blow by their adjuster when their treating surgeon for their Nevada work comp injury finds that they first take care of a unrelated medical problem before surgery can go forward. For example, many hurt workers will find that their blood pressures spike from being in pain from the severe work injury, particularly if they have had borderline or high blood pressure in the past. A primary care doctor performing the pre-surgical clearance may want a cardiologist to run some more diagnostic studies, such as a treadmill stress test. Clearance can then take weeks. Meanwhile, the adjuster sends a letter that the injured workers benefits will be suspended until the patient is cleared for surgery.

I have successfully argued that this practice is wrong. Hearings and appeals officers generally agree that the correct interpretation of NRS 616C.230(5) on suspension of benefits allows the injured worker to avoid suspension if he shows that he did everything as quickly as possible to take care of the nonindustrial medical problem. The problem is that it takes an appeal, reversing the insurer's suspension of benefits to get the injured worker paid. Many injured workers are intimidated by the appeals process and just go without benefits during the weeks it takes them to get surgical clearance. My recommendation is that you get surgical clearance as quickly as possible, show the adjuster that you are doing things quickly, and file an appeal of any suspension of benefits.

Obtaining appointments with a primary care doctor or a specialist to treat an underlying, unrelated medical condition can take weeks.

Are They Calling Your Herniated Disc a Lumbar Strain?

Virginia Hunt — Fri, 22 Mar 2013 22:21:19 -0800

There is a renewed trend among particular self-insured employers and third-party administrators (TPA's) in Nevada to send a Notice of Claim Acceptance for "lumbar strain only" on low back injury claims. My fellow claimants' attorneys are also noticing an increase in claims where adjusters are denying medical treatment for a herniated disc, because the claim was accepted for a "lumbar strain" and the injured worker didn't file a timely appeal.

For those workers who truly have a lumbar strain, a claims acceptance letter for a "lumbar strain" isn't likely to be a problem. However, the the claims acceptance letter must be sent by the adjuster 30 days after getting the C-4 Claim for Compensation from the first doctor. It isn't likely that the injured worker or even the adjuster will know whether a low back injury is a strain or something else at that time.

It's rare for a work comp adjuster to authorize a MRI during the first 30 days of the claim, or even within the 70-day time to appeal the limiting language in acceptance letter. A MRI is necessary to diagnose a disc injury. If a herniated disc is diagnosed later, the adjuster may refuse to authorize any treatment that isn't treatment for a lumbar strain.

According to local neurosurgeon Aury Nagy, M.D., 70% of patients with lower back pain get better with physical therapy and steroids in about 6 weeks. When the patient isn't better, an MRI is done. The MRI must be authorized by the adjuster. If the MRI shows a herniated disc, where the gel-like material within the disc is bulging or has ruptured and is pressing on a nerve, then a surgery may be necessary. The patient may need a discectomy to remove the damaged disc. If the spine is also unstable, a fusion may also be necessary.

Physicians must ask the adjuster for authorization to do injections or to surgically treat a herniated disc. Some adjusters are now including the "lumbar strain " language of almost every claim acceptance letter for low back injury. Obviously, it isn't fair to the injured worker for the adjuster to deny requested treatment for a herniated disc that isn't diagnosed until later in the claims process. The fact that adjusters are using this unfair tactic frequently now tells me that it is working for the adjusters. Surprisingly few injured workers get legal help when this happens.

These are often winnable cases when the claimant files an appeal after hiring an attorney, even after the time has passed to appeal the "lumbar strain only" acceptance letter. If your orthopedic surgeon or your treating neurosurgeon tells you that the adjuster denied authorization to treat your herniated disc because only a lumbar strain was accepted on your claim, get an attorney consultation immediately to discuss the facts of your particular case.

--Written by Virginia Hunt, Hunt Law Office

Cost of Rating Exams Up Again: Get It Right the First Time

Virginia Hunt — Tue, 12 Mar 2013 15:39:43 -0800

Effective February 1, 2013, the Nevada fee schedule that governs health care providers under the Nevada workers' compensation system, raised the PPD (permanent partial disability) reimbursement to $718.96. If the rating physician is rating more than two body parts, he or she can charge an additional $240.11 for each additional body part. For example, the fee schedule states that the cervical spine constitutes one body part, the thoracic spine another body part, and the lumbar spine constitutes a separate body part for rating and billing purposes. If an injured worker has injuries to the neck, the low back, and to the right wrist, the rating physician's bill will be $959.07.

Injured workers who disagree with the first rating or the percentage offered by the industrial insurer must pay these same rates when they obtain a second rating by following the procedure in NRS 616C. 100. With these high costs, it is essential that the injured worker gets a fair and accurate rating the first time around when the insurer must pay for it. Although the law allows a hearings or an appeals officer to order an insurer to reimburse an injured worker for a second rating if the second rating is found to be more accurate, there are no guarantees that a second rating will result in a higher percentage, or that a hearing or appeals officer will agree that the higher percentage is correct.

It is difficult for Injured workers to find an extra $718.96 to pay for a second exam, even if they are likely to be reimbursed. Also, it takes time to file appeals and contest the first rating, and the injured worker cannot accept the disputed first percentage in a lump sum while litigating the first percentage.

Here are a few things I may do representing an injured worker do to get the first rating correct:

Ask the adjuster to agree with me on which of the 145 doctors on the DIR's rating list will evaluate the client.
Make sure that the rating physician is rating all accepted body parts.
I go with the client to the rating with a copy of the medical records, so that if the doctor is missing an important record, like an operative report, I have a copy ready.
I know the AMA Guides and am prepared to discuss complex issues such as apportionment of pre-existing conditions or how a particular body part should be rated.
I obtain a copy of the rating evaluation as soon as it is done so that I can resolve any problems by writing to the rating doctor before the adjuster sends a determination letter.
I may have the rating report reviewed by a rating doctor at a cost less than the full cost of an exam to confirm a suspected error and then ask the rating doctor for an addendum.
I prepare a persuasive argument for the hearing officer after filing an appeal that the first rating is wrong under the AMA Guides, and ask that the insurer be required to pay for a second rating.
Finally, if I think the first rating is incorrect and that the second rating phsycian who is assigned by the DIR is likely to find a higher percentage, I file an appeal and schedule a second exam.

--Written by Virginia Hunt, Hunt Law Office

Does An Injured Worker Have to Go to Their Doctor?

Virginia Hunt — Sun, 10 Mar 2013 18:35:37 -0800

Injured employees in Nevada have a limited right to choose a treating doctor. The workers' compensation insurer or third-party administrator for the employer has a list of doctors that have contracted to provide medical care at reduced fees. Once the injured worker's claim is accepted, he or she has the right to ask for a different doctor on the provider list. If the request is within the first 90 days of the claim, the adjuster handling the claim must approve the request. Requests to change doctors made after 90 days can be denied, but the law says that the adjuster should have a good reason for the denial. NRS 616C.090.

An injured worker who successfully changes her treating doctor may be surprised weeks or months later to get a letter from her adjuster scheduling her to see a different doctor for a consultation appointment. That usually happens when the adjuster doesn't agree with the treatment recommendations of the treating doctor. This type of consultation might also be scheduled when the treating doctor has taken the injured employee off work for a long time.

Nevada law does give insurers and employers the right to require a consultation appointment with a doctor chosen by the employer or insurer from the insurer's provider list. This consultation examination is sometimes known as an IME (independent medical examination). The letter from the adjuster that notifies the injured worker of the appointment date and time will state that the injured worker's benefits will be suspended if he or she does not go to this appointment. NRS 616C.140 (5) states that if the employee refuses to go to the exam or obstructs the exam, compensation benefits can be suspended by the insurer until the exam takes place.

The letter from the adjuster will also tell the injured worker that he or she has the right to file an appeal if they disagree with the consultation. If this is the first time the insurer or employer has scheduled the employee for a consultation, a hearings officer is not likely to reverse the insurer's determination to require the consultation. However, I have had cases where the insurer has scheduled several consultation examinations in an obvious attempt to get a particular opinion from a doctor. If the number of consultations is unreasonable or the insurer is making unreasonable demands concerning cross-country travel to a consultation, a hearing officer will side with the injured worker. Adjusters who schedule multiple consultations are usually gearing up to deny something- beware.

--Written by Virginia Hunt, Hunt Law Office

More Unfair Tactics Against Nevada's Injured Workers

Virginia Hunt — Sat, 02 Mar 2013 16:32:52 -0800

The most important benefit under the Nevada workers' compensation system is the injured employee's right to get medical treatment. I have prior blog posts about the limitations on that right that are written into Nevada law, such as the limited right to choose a treating doctor. I also just wrote about insurers' attempts to deny an injured employee's right to change doctors by directing care to doctors who will release the patient from care within the first 90 days of the claim.

In the past two months I have seen two insurers get even bolder by writing directly to the treating doctor and telling him to change his diagnosis to the diagnosis accepted by the insurer. For example, two clients with low back injuries were diagnosed with disc injuries as well as lumbar sprains by their treating doctors. The administrator in both cases sent claims acceptance letters to the injured worker, stating that the claim was accepted for "lumbar strain only". When the insurers saw the bills from treating doctors and physician progress reports that referenced a disc injury and a lumbar strain, the insurer wrote to the doctor advising him that the insurer was only going to pay for treatment for a lumbar strain.

The injured workers were copied by the insurers on the letters that were sent to the treating doctors limiting treatment and payment of the bill to only a lumbar strain. However, In one case, this letter to the doctor wasn't sent until months after the doctor had listed the disc condition on every physician progress report as one of the diagnoses. The insurer had also specifically authorized and paid for injection treatment for the disc condition. It was evident that the insurer was trying to limit the diagnosis now that the claim was closing so as to avoid an impairment evaluation or a higher impairment rating.

In the second case, the insurer wrote to the doctor at the very beginning of the claim, and the insurer wanted to make sure that the only treatment the injured worker got was treatment for a strain. In both cases, the copies of the letters to the doctors confused my clients. It wasn't clear at all to them that what was happening was an attempt by the insurer to limit their medical treatment in the future or now, and an attempt to limit any impairment due to the work accident.

If you get a similar letter from the adjuster, or are copied on a letter the adjuster sends to your doctor trying to limit your claim, don't ignore it. You owe it to yourself and to your family to understand what is happening on your claim and how to obtain the best possible medical care under Nevada law.

--Written by Virginia Hunt, Hunt Law Office

Employer Bellagio Sued by Blackjack Dealer for Attack

Virginia Hunt — Tue, 26 Feb 2013 20:11:22 -0800

The Bellagio blackjack dealer whose face was slashed just before Christmas this past year filed a lawsuit this week against her employer and her jailed attacker, according to theLas Vegas RJ today (2/26/13). The newspaper stated that the legal complaint against the Bellagio by the injured employee alleges that employer Bellagio failed to ensure the safety of its employees and failed to give her timely aid after her face was gashed with a razor blade by an attacker. The article wasn't clear about the relationship between the attacker and the black jack dealer, but earlier reports referenced a domestic dispute that also involved the death of a child.

Attorney Harold Gewerter represents the injured employee in the lawsuit. I haven't seen a copy of the Complaint he filed to intiate the lawsuit. I am interested to see how he intends to avoid a likely motion by the Bellagio to dismiss the lawsuit based on an "exclusive remedy" defense. That defense provides that if an employer purchases workers' compensation insurance, an employee who is injured in the course and scope of employment cannot sue the employer, even if the injury resulted from an unsafe work condition. The employee's "exclusive remedy" are the benefits described in Nevada's workers' compensation law if the employee has a possible work comp claim.

If the facially disfigured Bellagio blackjack dealer survives an "exclusive remedy" defense argument, it may be because the attack cannot be said to arise out of the course of the blackjack dealer's employment. Instead, the attack may have been related to a personal dispute between the attacker and the blackjack dealter that had nothing to do with the blackjack dealer's job. If so, then the blackjack dealer would not have a compensable workers' compensation claim that would give her immediate medical and compensation benefits. She would then have to hope that her civil lawsuit can prove liability by the Bellagio under tort law.

--Written by Virginia Hunt, Hunt Law Office

Free Legal Consultation- What to Expect

Virginia Hunt — Mon, 28 Jan 2013 17:59:08 -0800

This is what I do for injured workers who would like a free legal consultation:

First, I, or one of my experienced legal assistants, asks the injured workers a few pertinent questions to make sure that they have a Nevada claim, that they have already filed a claim, that they do not already have an attorney representing them, and that I can help answer their questions when they come in. I don't have time to see everyone who calls me, and with some people, I know right away that I will not be able to assist them.

Secondly, if I schedule a free consultation, I ask the injured or sick injured worker to bring whatever paperwork they have pertaining to the claim. The more information I have when someone comes in to see me, the more accurate my recommendations are for their particular claim.

Consultations are scheduled for 45 minutes, but if the case is complex, we may take up to an hour to discuss the claim. I encourage injured workers to bring their spouse or significant other so that I answer everyone's questions.

I listen to the injured worker tell me about how the accident happened, or how the occupational illness developed, and I read the paperwork available for my review. I then give an overview of Nevada law and the various benefits available. I talk about the roles of the insurance adjuster, and the employer, and the treating physician. I usually spend a lot of time discussing the medical care the injured worker is receiving as time limitations are very short for requesting change of doctors.

I identify potential problems the injured workers may not be aware of, and tell the injured worker what to expect, and what the options are if the claim doesn't proceed as expected. Sometimes the injured worker hasn't faced the prospect of not returning to their pre-accident occupation, and we spend time talking about retraining possibilities. I also explain how permanent partial disability awards are determined. I answer questions about what I do as an attorney for the injured worker, and whether legal representation is even necessary. I explain that I assist clients in obtaining the best possible medical care, that I make sure that benefits are maximized and calculated correctly, and that the client is aware of all benefits that are available. I personally go to clients' rating evaluations, and I represent my clients should they ever need to reopen their claim for more medical care in the future. I also stay involved in the vocational retraining process, and I do not charge an attorney fee on a vocational rehabilitation lump sum buy-out unless that sum of money is part of a settlement of litigated issues.

All consultations are confidential regardless of whether the person ever hires me or not. No one is pressured to sign a representation agreement with me, as the consultation is truly free. If the person decides that they do need or want representation immediately, and I consent to be their attorney, we can have all necessary paperwork to hire me completed in about five minutes. I personally explain the representation agreement to every client. I propose fees based on what work I think I will have to do on the claim presently and in the future.

I do not mind if a person is shopping for an attorney and wants to have consultations with other attorneys before deciding to hire me. Who to hire for legal representation is an important decision. It is very difficult to change attorneys later, because attorneys generally do not get paid until the end of the claim. There are differences in what attorneys charge in Las Vegas, and there are differences in what attorneys personally do for clients.

Finally, I give all people who see me for a consultation, and any others who request it, a copy of the guide I wrote for injured workers on Nevada workers' compensation law.

Are Hernias Ratable?

Virginia Hunt — Sat, 19 Jan 2013 14:02:39 -0800

Inguinal hernias are common work-related injuries for men, often caused by increased abdominal pressure during heavy lifting. According to the November/December 2012 AMA Guides Newsletter, men have a 27% lifetime risk of an inguinal hernia. Genetics, overall body conditioning, and development of a person's abdominal musculature have a lot to do with risk of a hernia.

If an injured worker feels sudden pain and immediately notices a protrusion in the abdomen, and the worker promptly reports the injury, a claim is usually accepted. It is when the injured worker delays in reporting the injury that the workers' compensation administrator and employer question whether the hernia was caused by job activities. The injured worker can avoid problems simply by speaking up immediately following a work injury and by following the procedures for filing a claim.

Surgery, usually involving a mesh repair, is scheduled quickly after a claim is accepted. Most surgeons take their patients off heavy physical work for at least 7 to 14 days. Most surgeries are successful, and there is no remaining protrusion or defect that can be felt in the abdomen. A successful surgery should not entitle the injured worker to a rating evaluation.

If,however, the surgery was not successful, and there is still a protrusion or palpable defect, the injured worker may have a ratable impairment under the AMA Guides to Evaluation of Permanent Impairment 5th Edition. A rating is not scheduled simply because there was a surgery. Nor is a rating scheduled because a treating surgeon gives the injured worker some permanent work restrictions.

In order for there to be a ratable impairment under the AMA Guides, there must still be a protrusion or palpable defect present when the rating physician does a physical exam. If the hernia surgery was done correctly, there shouldn't still be a protrusion or palpable defect unless there were complications. The extent of the palpable defect will determine the class of impairment. For example, a slight protrusion would place the claimant in a Class ! impairment, allowing the rating doctor to assign 0 to 9% whole person impairment.

Secondly, in addition to a remaining palpable defect, the rating doctor must determine the extent to which the hernia interferes with activities of daily living. If the hernia does not interfere with most activities of daily living, the rating doctor would place the impairment at the lower end of a Class I impairment.

Most injured workers who have asked whether they should be rated for impairment complain about pain that never subsides after the surgical repair. While they may not have a remaining protrusion or palpable defect, it is possible that a rating doctor might find a small percentage of impairment for a nerve entrapment in the abdomen after their hernia repair.

If you have an accepted claim for an inguinal hernia, and you question whether you should have a rating evaluation, the first step is to obtain a complete copy of your records from your treating surgeon. Do that quickly. Then ask a knowledgeable attorney to review your records for an opinion whether you do or don't have a likely impairment under the AMA Guides. Keep in mind that you only have 70 days to file an appeal of the insurer's determination letter to close your claim without a ratable impairment.

How Valid Are FCE's?

Virginia Hunt — Fri, 18 Jan 2013 14:01:37 -0800

Today, I met with Rob Wolinsky, a physical therapist at the Kelly Hawkins Physical Therapy facility at Charleston and Valley View . Rob oversees approximately a dozen functional capacity evaluations (FCE's) each week at the request of physicians and adjusters administering Nevada workers compensation claims. A FCE is an evaluation by an experienced therapist like Rob. The is asked to perform particular physical tasks while the evaluator gathers information about the worker's ability to return to their pre-accident employment. Even when it is obvious to a treating doctor that the worker cannot return to his old occupation, the doctor may want a FCE so that a vocational counselor knows what kind of retraining program to develop.

I asked Rob about how he determines whether a FCE is valid or not. I was surprised to learn that about 30% of the evaluations he does each week are invalid. An injured worker must pass 70% of the validity criteria built into the test to have a valid test.

Validity criteria tells the evaluator whether the worker is honestly trying his best to do the various physical tasks required during the evaluation. Rob explained that the validity criteria used by Kelly Hawkins PT was developed over many years from several sources. He was confident that their validity criteria provides him with a fair and objective way to measure an injured worker's true effort and physical work abilities.

Rob also stated that there might be valid reasons for a FCE to have inconclusive or invalid results. For example, he told me that if the FCE is done too soon following a major back surgery, the test might be invalid despite the injured worker's consistent, and best efforts. In that particular case, Rob said that he phoned the doctor who had ordered the FCE just two months after the patient's back fusion to tell him that the FCE should be done later. Rob also said that if an injured worker is disabled due to a separate non-industrial injury, or is unable to perform all tasks due to a pre-existing illness, the test may come back as invalid.

FCE test results are sent to the treating physician for a statement of permanent work restrictions. A physician is not obligated to follow the recommendations of the FCE evaluator. However, most physicians do rely on the FCE results. Problems occur when the job description provided to the FCE evaluator is not accurate, or when no job description is provided. In that case, the FCE evaluator uses the general physical job description from the U.S. Dept. of Labor for the most appropriate job title.

An invalid FCE can cause serious problems for an injured worker. The treating doctor , who reviews the invalid FCE report, may now believe that the patient is trying to fake a more serious injury. Most doctors release the patient full duty without any restrictions when they see invalid FCE results. Rob told me that sometimes a FCE will be invalid, but it is clear to him that the patient should have permanent restrictions. In those rare cases, Rob may phone the doctor to discuss the FCE results.

Again, clients with legitimate injuries may have invalid FCE results for various reasons. Those injured workers often have to appeal the termination of their benefits, and they must pay $800 or more for another FCE test until they get valid results for their doctor.

Change Doctors NOW !!

Virginia Hunt — Sun, 06 Jan 2013 09:37:14 -0800

Nevada law requires third-party administrators and self-insurers of workers' compensation claims to send accepted claimants a notice of their right to choose a different doctor from the appropriate provider list. Not all TPA's and insurers are sending this notice. If they do send it, most injured workers don't read or understand how important it is to choose a different doctor before their claim is closed.

I have been seeing too many claims where adjusters are trying to deprive injured workers of their right to change doctors by having a doctor close the claim within the first 90 days of the claim. What usually happens is that the injured worker is first directed to go to Concentra for initial medical care and to complete the C-4 Claim for Compensation form. If the injury persists after 45-60 days, the adjuster sends the injured worker a letter transferring their care to a doctor the adjuster chooses. These doctors are usually physiatrists- physical medicine specialists who treat occupational injuries by prescribing therapy and medication, or by giving injections. If the injury is very serious, these doctors can request a consultation exam by a surgeon. These doctors have agreed with insurers to treat at rates below the Nevada fee schedule in exchange for a volume of business. Their relationships with adjusters, and self-insurers are important to their businesses. If an adjuster doesn't like it that the doctor is taking patients off work too much or is finding that claimants should be rated for impairment, the doctor is quickly removed from the provider list and loses business.

Injured workers have the right to change doctors within the first 90 days of the claim. The injured worker must attend whatever consultation exams the insurer schedules, but within the first 90 days, the worker can refuse treatment with the doctor chosen by the adjuster and ask for a different doctor. The catch is that the alternate doctor must be another doctor on the insurer's provider list. The worker must also know to request a copy of the provider list.

The injured worker should immediately request a copy of the provider list, and should try to get as much information as possible about the doctors on this list before choosing another one. There is usually at leasat one doctor with some integrity and a sense of loyalty to the patient on these stacked provider lists.

If you feel that the doctor your adjuster has chosen for you is not listening to you, request a change of doctors in writing immediately. Doctors are legally and morally obligated to do what is medically right for their patients. However, some doctors tell their patients that the law does not allow them to keep the patient off work. That is not a correct statement of the law. The laws do not prohibit doctors from taking injured workers off work completely if the doctor thinks the patient should not be working. These same doctors also might not ask for necessary diagnostic tests or treatment if the adjuster or employer tell the doctor that the request will be denied. The patient then never has an opportunity to appeal a denial because the doctor didn't actually send a written request.

Some adjusters try to deny injured workers of their right to choose a different doctor by funneling claims to particular physiatrists who report within the first 90 days of the claim that no further care is necessary. The doctor states that the patient can return to work full duty without a rating evaluation, and the adjusterthen closes the claim within the first 90 days of the claim. Can the adjuster deprive the claimant of her right to choose a different doctor by closing the claim before 90 days is up? At least two hearings officers have ruled in favor of my clients in these situations, and have allowed the injured worker to have a consultation with a different doctor before their claim was closed.

Mileage Reimbursement Increase for 2013

Virginia Hunt — Sat, 05 Jan 2013 08:41:52 -0800

Effective January 1, 2013, the mileage reimbursement payable pursuant to NRS 616C.150 is increased one cent per mile from 55.5 cents to 56.5 cents.

The rules for reimbursement remain the same. If you travel more than 20 miles one way for authorized medical care (including therapy, diagnostic testing, office visits to the doctor), you should complete the reimbursement form. You also qualify if you must travel more than 40 miles in a given week for medical care. Group your visits on the reimbursement form by the week so that the adjuster can easily see that you qualify. Use map quest to calculate your mileage from your home or work to the medical provider. Do not wait until the end of your claim to send in the reimbursement request forms. The reimbursement request form must be sent in within 60 days of your qualifying travel. keep a copy of the form that you send to your adjuster. Give the adjuster at least two weeks to send a reimbursement check to you.

The Claim Acceptance Letter: What You Need to Know

Virginia Hunt — Sun, 30 Dec 2012 08:24:23 -0800

Let's say that you are injured at work and you go to the clinic designated by your employer for treatment and to fill out a C-4 Claim for Compensation. Within 30 days after the adjuster receives the C-4, the adjuster must either accept or deny your claim. The adjuster will usually call the employer to get the employer's information about the accident, and to ask the employer whether the employer thinks you have a legitimate claim. If there were witnesses to the accident and the employer doesn't question that your were injured while working, the adjuster then sends you a Notice of Claim Acceptance.

Be sure to check the upper portion of this form where it lists the body parts accepted on the claim. Things can get tricky when the adjuster says "lumbar strain only" when your treating doctor later gets an MRI of your low back and finds a herniated disc. I have several cases right now where the Notice of Claim Acceptance said "lumbar strain only", and after several months of treatment for herniated discs, the adjusters refused to schedule an impairment evaluation to rate the ongoing complaints because any lumbar strain should have been healed by now.

You also need to check that all injured body parts are listed as accepted on the claim. If the Notice of Claim Acceptance only says that your left shoulder is accepted, but you also injured your neck. you need to ask the adjuster in writing to also accept the neck. Request that the adjuster send an Amended Claim Acceptance letter that specifically states that both the shoulder and neck are accepted. Most injured workers neglect to do that, particularly if they are getting physical therapy for both the neck and the shoulder. It may be possible for an attorney to include the neck even after the 70-day appeal time has run on the Notice of Claim Acceptance, but the best way to handle this situation is to write to the adjuster asking the adjuster to make a determination with appeal rights about including the neck injury on the claim. It won't be enough to later complain to a hearings or appeals officer that you verbally told the doctor that your neck hurts too, and the doctor didn't look at your neck when you asked him to do that.

Injured workers usually feel relieved to get a Notice of Claim Acceptance. They rarely read the form carefully to make sure that the adjuster is not trying to limit the scope of the claim to a lesser diagnosis or to only one of several injured body parts.

Holiday Hours

Virginia Hunt — Fri, 21 Dec 2012 15:45:28 -0800

Our office will be closed for the Christmas holiday on December 24, 25, and 26. We will be open on Thursday, December 27 and Friday, December 28.

We will also be closed on Monday, December 31, and January 1, 2013. We will be open on Jan.2.

Happy Holidays!

Injured Worker Fraud Not Prevalent

Virginia Hunt — Mon, 17 Dec 2012 14:14:42 -0800

A friend today asked me about about an article in the Las Vegas Sun today regarding a Metro office who was caught doing something stupid and is being prosecuted for theft related to his workers' compensation case. The Nevada Attorney General is responsible under Nevada law for investigating and prosecuting any injured workers an insurer or self-insured employer believes is obtaining medical or compensation benefits fraudulently. I don't represent the officer who is charged, and I don't know exact circumstances of his case.

The problem with the short article is that while it may be factual, it helps perpetuate the myth that workers' compensation fraud by injured workers is prevalent. It isn't. Metro officers in particular are not the type of people who file fraudulent claims. Obviously, police officers get hurt a lot. Their jobs are physical. The interact with violent criminals, and they are on bikes, motorcycles and in patrol cars. The officer mention in the article is the only Metro officer currently under prosecution for workers' compensation fraud.

Previously, I wrote that only 93 cases were referred to the Attorney General's Office in 2011 out of the approximately 50,000 claims that were filed in Nevada. (The DIR did not have the exact 2011 statistics available.) I just spoke with an experienced claims adjuster, who I knew when I was the Chief Attorney for the Southern Regional Office of the SIIS. He said that he has only referred three claimants to the AG's office in twenty years.

My point is that if you happen to know an officer who is recuperating from a work injury or occupational illness, thank him or her for their service, and wish them a speedy recovery. These officers aren't faking it.

Avoiding Holiday Debt

Virginia Hunt — Thu, 06 Dec 2012 22:46:10 -0800

The holidays are such a difficult time for injured workers. Compensation checks are late due to interrupted mail service,or bad weather back East, or due to adjusters taking vacation time. Doctors' offices cannot find appointment times for new patients as they try to squeeze in existing clients. Hospital and surgical centers are overbooked with patients wanting to avoid a new annual deductible under their health insurance.

I hope that injured workers resist the temptation to get a loan on their car's title in order to buy gifts they can't afford. These payday loan companies and title lenders have sprung up like weeds on every block, with the Review Journal counting 43 in Las Vegas. Apparently one-third of Las Vegans use these predatory companies instead of banks. They exist and multiply because Nevada has few laws regulating how much these companies may charge as interest. These loans are almost impossible to pay off without the borrower paying at least twice as much as the original amount borrowed.

Send me an email if your are an injured worker. Let me know how you found a way to celebrate the holidays without incurring more debt. I will enter you in a drawing for $300. You don't have to be a client to enter. The drawing will be on January 1, 2013. Happy Holidays.