Nevada Workers' Compensation Law Blog

The Worst Time to Hire a Workers' Compensation Attorney

Virginia Hunt — Fri, 05 Mar 2010 07:17:39 -0800

Three people who met with me for a free consultation last week all told me that they thought the best time to hire a workers compensation lawyer to help them with their claim was right before they were scheduled for a permanent partial disability evaluation. Two told me that they had had free consultations with other attorneys in the past, and those attorneys were not interested in representing them while they were still actively treating for their injuries. Those other lawyers told them to come back when they were finished getting treatment and were ready for a settlement. The third person had relied on advice from a co-worker who thought that a lawyer was only necessary to obtain the best settlement. Unfortunately, those three people were given bad information on when to hire a lawyer. The best time to hire a lawyer, after meeting with one you like, is at the beginning of your claim. Here's why:

1. Get More Legal Service for the Fee You Pay

Most attorneys charge a contingency fee from the permanent partial disability award at the end of the claim. That fee is usually the same regardless of whether you hire the lawyer at the beginning of your claim, or right before you have the evaluation to determine your settlement. If you hire a lawyer who actually provides a valuable service in assisting you on your claim each step of the way, you get more legal service for the attorney fee by hiring the attorney at the beginning of your claim. If an attorney is only interested in representing you at the end of your claim, that is a red flag, and should alert you that the attorney is only wanting a quick fee for providing very little help.

2. A Work Comp Attorney Should Guide You Each Step on Your Claim

If you hire a lawyer who is committed to helping you on your claim, and is not solely interested in getting his fee from the settlement, you have someone who is experienced in selecting the best doctors for your care. You also have someone to make sure that your benefit checks are the correct and highest amount, and that they are paid on time. An experienced work comp lawyer will also guide you through any employment issues while you are treating, and will get a jump start on the retraining process if it appears that the client will not be able to return to her old job.

3. The Most Important Decisions Are Made at the Beginning of the Claim

The most important service I provide as a workers compensation lawyer is making sure that my clients get the best possible medical care as quickly as possible. My clients are normal, honest, hard-working people who like their jobs. They just want to get their injuries fixed and to get back to work and their regular lives. It is at the beginning of the claim that injured workers decide whether they need a specialist, whether they want to change doctors, whether to have surgery, whether to have a second opinion, and what other treatment options are available. The beginning of the claim is when insurers deny additional body parts on the claim and deny treatment or surgeries that your doctor requests. Insurers will try to usurp control over what happens to the injured worker's body at the beginning of the claim.

4. The Best Lawyers Practice Preventative Law

It is always easier to prevent a problem from happening on a claim than it is to try to fix a problem that has happened. By the time most injured workers consult with a lawyer on their claim, they have spent many frustrating months trying to handle problems by themselves. Injured workers are at a terrible disadvantage when dealing with adjusters, because injured workers do not know what their rights are and whether the adjuster is acting properly on their claim. A lot can go wrong very quickly, and the time to file an appeal on any determination made by the insurer is only 70 days.

5. What to Do If You Have Waited Until the End of Your Claim

If you have tried to go it alone on your claim, are fed up, and want to hire a lawyer now because you are concerned about the settlement process, get a free consultation with an attorney. You might be able to negotiate a lower attorney fee if you are just about to get a rating evaluation , and you don't have ongoing problems or potential future problems with your claim. . Be sure to ask whether the attorney will be attending the rating with you. Also ask whether the attorney will be helping you with any vocational rehabilitation issues, and whether the attorney will be available in the future to help you reopen your claim for more medical care. Find out whether an actual attorney is handling your claim, particularly if you hire a celebrity attorney law firm. You might also ask whether the attorney is able to predict what your percentage of impairment should be. Those attorneys who are honest and who care about their reputations among injured workers will give you a straight answer. Finally, there is a ton of information about the rating process in my blogs and on my website.

Get Well Again Soon!

Good News for Injured Workers Getting PPD Awards for Back Injuries

Virginia Hunt — Thu, 04 Mar 2010 16:02:39 -0800

Last week the Nevada Supreme Court unanimously decided that rating doctors evaluating injured workers with spinal injuries can add one to three additional percentage points to the permanent partial disability award if the rating doctor finds that the spinal injury has substantially impaired activities of daily living (ADL's). The Nevada Self-Insurers Association had filed a lawsuit naming the Nevada Attorney for Injured Workers and the Nevada Division of Industrial Relations, arguing that a section of the American Medical Association Guides to the Evaluation of Permanent Impairment allowing for impairment of ADL's violated Nevada law. A district court judge agreed with the Self Insurers, and entered an order back in June 2008 that allowed insurers to withhold payment of that portion of an injured worker's award for ADL's until the Nevada Supreme Court decided the appeal. Injured workers were then put in the unfair position of having to wait until the Nevada Supreme Court decided the case if they wanted to accept their award in a lump sum payment. Most injured workers could not wait and ended up losing their percentage points for ADL's so that they could accept their permanent partial disability awards immediately.

Click on this link to read the complete decision by the Nevada Supreme Court. If you are an injured worker who chose to wait for the Nevada Supreme Court to decide this case and did not accept your PPD award in a lump sum, you should contact your adjuster if you do not receive a new PPD offer that includes the ADL's award within the next 30 days. The Division of Industrial Relations has notified all third-party administrators that they are to comply with the Nevada Supreme Court's decision. Click these links for more information on how permanent partial disability awards are calculated, or information on how to contest an award and get a second rating.

Traducción en Español de Artículos y Anuncios de Blog

Virginia Hunt — Sun, 28 Feb 2010 11:20:05 -0800

Si usted es un trabajador lastimado y preferiría leer en español un anuncio de blog particular, o un artículo en mi centro de información de mi website, por favor dejarme saber. Mientras tanto, yo no puedo traducir cada articulo o blog que yo escribo en ingles, pero si puedo acomedir un pedido particular. Usted también puede pedir una copia gratis de mi Guía de Compensación de Nevada para Trabajadores Lastimados, en la cual ya la he traducido en español. Hable a mi oficina al (702) 699-5336.

Health Care Jobs a Good Retraining Choice for Injured Workers in Nevada

Virginia Hunt — Wed, 24 Feb 2010 07:09:37 -0800

The Health Care Quarterly report in the recent issue of "Las Vegas In Business" has some good news for injured workers deciding which retraining program is most likely to lead to actual employment in the future. Health care employment was up 2,300 jobs from last year according to a research analyst. The health care industry is recession-resistant because these are crucial jobs and because the health care industry is funded by either insurance or government programs. The industry expects more jobs with the opening of the Cleveland Clinic Lou Ruvo Center for Brain Health.

Health care employees generally earn above-average wages depending on their level of training. While state budget cuts in Nevada are affecting health care jobs also, and no one knows how the health care industry will be affected with federal health care reform, these jobs are still a solid career choice.

There are several vocational schools in Las Vegas that offer health care job training. Talk to your vocational rehab counselor, and your attorney, about which schools are reputable and which assist their students in job placement. Make sure you visit several schools and sit in on a few classes before deciding which school and which retraining program is best for you.

After you are enrolled in a retraining program, immediately start thinking ahead to when the retraining program will end. Only 28 days of benefits are paid when the formal retraining program concludes, and if you are not successful in finding a job right away , you are left without any income. That means that you need to begin job search efforts before the school portion of the program ends. Click on this link where I found some good suggestions for networking and using existing contacts for referrals to potential employers who may be hiring.

What To Do If a Body Part Is Not Accepted on Your Nevada Claim

Virginia Hunt — Tue, 16 Feb 2010 09:38:33 -0800

Many times an injured worker does not realize that other parts of the body have been injured when he or she is first getting medical care for the most obvious injury and when completing the C-4 claim form. Directly above the signature line on the C-4 Claim for Compensation form is a boxed area for the injured worker to write what parts of the body were injured. When the claims adjuster receives the C-4 form, the adjuster notes what the employee says was injured with what the doctor writes as the diagnosed and treated injury on the lower portion of the C-4 form.

The adjuster then uses the information on the C-4 form, as well as any available medical records, when sending the Notice of Claim Acceptance letter. Most adjusters will state exactly what body parts are accepted on that Notice of Claim Acceptance. At the bottom of that letter, the adjuster will also tell the injured worker that he or she has 70 days to request a hearing if there is something he or she disagrees with in the letter. The majority of injured workers who receive a Notice of Claim Acceptance do not carefully read that letter, and do not take any action to make sure that the adjuster sends another letter including any body parts that are not mentioned in the Notice of Claim Acceptance.

Problems arise when the injured worker tries to get medical treatment for a body part that is not specifically mentioned in the Notice of Claim Acceptance. Adjusters often deny requests for necessary treatment to an additional or different body part weeks or months after the claim is accepted when diagnostic testing reveals an injury to an additional body part.

Fortunately, the last legislature recognized that injured workers are being denied necessary medical treatment by adjusters taking advantage of injured workers who do not file appeals from a Notice of Claim Acceptance letter that lists accepted body parts. A recent amendment to NRS 616C.065, effective October 1, 2009, states that the failure of the insurer to indicate the acceptance or denial of a claim for a part of the body or condition does not constitute a denial or acceptance thereof. That means that if an injured worker specifically requests that an additional or different body part be included on the claim, the insurer must make a new determination and give appeal rights again. The insurer cannot simply state that a Notice of Claim Acceptance letter was sent and the appeal time to contest the listed body parts has run.

Even with the recent amendment to NRS 616C.065, an injured worker should immediately request that a Notice of Claim Acceptance letter be corrected if all affected body parts are not listed. If the injured worker does not realize that additional body parts were injured until much later, then the injured worker should request in writing that the adjuster include the body part. If the adjuster fails to take action, the injured worker may file an appeal after 30 days from sending his written request to the adjuster. If the adjuster denies the request to include another body part, the injured worker should promptly file an appeal on the form provided with the denial letter.

Happy 15th Anniversary, Vanessa!

Virginia Hunt — Fri, 05 Feb 2010 19:51:57 -0800

On February 6, 2010, my officer manager and legal assistant extraordinaire, Vanessa Cohen, will be with me 15 years. Vanessa is the most organized person I have ever met, and she is responsible for making our office run like a well-oiled machine, even on days when every client seems to call at the same time and needs immediate action. If you are one of our clients with a claim in litigation, you know her as our litigation support specialist who tracks appeal deadlines, court dates, and assists in preparing evidence for hearings. She also tracks when settlement checks are due, and is the patient, competent voice ready to address clients' problems early in the morning before Bianca takes over solving problems for clients who phone us.

Vanessa and I exchanged small gifts today to honor our 15-year anniversary of working together, and she wrote in her card to me, "I still love my job!". Vanessa has a very difficult job helping me represent people at a very low point in their lives after serious, unexpected, and often life-changing accidents. Her compassion for our clients has never wavered, and her love for her job still shows in her devotion to excellence in her work. Thank you so much, Vanessa. Much love, Virginia.

Unemployment Insurance and COBRA Externsion Due to Expire

Virginia Hunt — Fri, 05 Feb 2010 07:23:27 -0800

Unless lawmakers in Washington act by February 28, 2010, the jobs bill passed in December that extended long-term unemployment insurance benefits and that gave a COBRA extension will expire. With the unemployment in Nevada at an all-time high, this is terrible news for workers who have been unemployed for a long time. Read more about the AFL-CIO's jobs plan to address this problem and for information on how to contact legislators to urge them to act on legislation now.

Bankruptcy and Nevada Workers' Comp Benefits

Virginia Hunt — Thu, 04 Feb 2010 11:28:23 -0800

I asked local bankruptcy attorney Sam Benevento to provide an answer to the question:

Will filing a bankruptcy affect your workers’ compensation claim? Here's Sam's answer:

To understand the answer to this question, it helps to understand the difference between a Chapter 7 and a Chapter 13 bankruptcy. Chapter 7 is a “straight” bankruptcy. Under Chapter 7 you attempt to discharge your debts without payment. You can protect (exempt) your principal assets in chapter 7 (like a residence, household goods, car, retirement account, and other things) but non-exempt assets can be seized by the Chapter 7 Bankruptcy Trustee to pay your debts. Chapter 13, on the other hand, is a reorganization under which you voluntarily make payments to your creditors through the Chapter 13 Bankruptcy Trustee and thereby repay a portion (or sometimes all) of your debts.

Workers’ compensation benefits are exempt under Nevada law. NRS 616C.250. This means that if you file a chapter 7 bankruptcy, the Bankruptcy Trustee will not be able to seize either your monthly benefit or your lump sum settlement. However, the benefits are counted as income to determine whether or not you are eligible to file a chapter 7 in the first place. Also, if the benefits are deposited into a bank account with other funds (i.e. commingled), they may be at risk of seizure. So be sure to keep any lump sum settlement completely separated from other funds.

In Chapter 13, the Trustee does not seize assets under any circumstances, so your workers’ compensation benefits are always protected. However, benefits received both prior to and after filing the Chapter 13 may be used in calculating the amount of your bankruptcy payment.

You should also be aware that worker’s compensation benefits may be garnished directly by a child support creditor.

Sam Benevento has been practicing bankruptcy law in Nevada for over 20 years and exclusively represents Debtors (that is – people and small business that need to file for bankruptcy protection). If you think that you may need to file, call Sam at 702-433-2000 to schedule a free consultation.

Starting a New Business in Nevada

Virginia Hunt — Thu, 04 Feb 2010 08:01:04 -0800

For many injured workers who are unable to return to their old jobs due a permanent injury, a formal program of retraining with a vocational rehabilitation counselor may not be an option, or may not be the best option. Hispanic employees who have difficulty reading and writing English, for example, will not be able to participate in retraining programs, because almost all programs are taught in English. Many injured workers will have to come up with a way to market other skills they have, or will have to start their own businesses.

Nevada law prohibits an industrial insurer from funding self-employment efforts directly. However, those injured workers who want to, or who must start a small business will at least receive a vocational rehabilitation lump sum buy-out that will help. The amount of a vocational rehabilitation lump sum buy-out will vary, depending upon the PPD rating of the injured worker, and whether the insurer can be convinced to pay more than the minimum amount the insurer must offer. See my article onlump sum buy-outs for more information.

Because a vocational rehab counselor is primarily involved in enrolling injured workers in formal retraining programs, the injured worker may not have much help in setting up his or her small business. I have provided some useful links below for the injured worker who is just starting a small business:

- Checklist for starting a small business by theIRS

- Business name registration for sole proprietor in Clark County

- State business license

- Visit the Nevada Department of Taxation for more information on necessary licenses

Conversation with a Vocational Rehabilitation Counselor

Virginia Hunt — Thu, 04 Feb 2010 07:57:36 -0800

I sat down recently with seasoned vocational rehabilitation counselor Jeff Shea to discuss how the depressed local job market was affecting Nevada's injured workers who are referred for vocational rehabilitation services. Jeff is no stranger to overcoming physical adversities himself, and an injured worker cannot complain that Jeff does not personally know how to deal with the extra challenges of a physical disability when reentering the workplace following a devastating injury. Jeff is from Philly, and that explains a lot about his no-nonsense, direct approach to advising injured workers. If you need your voc rehab counselor to sugar-coat the facts regarding today's local job market, Jeff is not the counselor for you. However, if you do need to quickly know what the best schools are in town, and what the realistic job prospects are in the Las Vegas labor market, Jeff can be a valuable ally.

Vocational rehab counselors like Jeff Shea are independent contractors who are hired by adjusters. There are voc rehab counselors who take pride in their work, who have integrity, and who are not scared off by insurers threatening to take their business elsewhere whenever an adjuster disagrees with the voc rehab counselor. I think Jeff is one of those counselors, and I am impressed when he goes the extra mile on behalf of an injured worker he believes is really trying to make their retraining program successful. However, if an injured worker fails to show up for class repeatedly and has no reasonable excuse for poor class performance, don't expect much sympathy from Jeff. While I have questioned Jeff's very tough approach to counseling in the past, I think his approach has merit in today's difficult economy.

When I expressed my concern for Hispanic clients who are unable to return to their former jobs and who are unable to participate in retraining classes taught only in English, his response was, " They should have learned English by now. This is the USA." I have a different view of the problem than that, but I also am at a loss as to how to provide retraining services to injured workers who cannot read and write English sufficiently to attend available retraining programs.

Jeff told me that those injured workers who are best at turning their life-changing injuries into successful new careers are those who quickly realize that the key to their success is a willingness to reinvent themselves. Jeff's words of wisdom, borrowed from Marine boot camp he thinks, are, "Adapt, Adjust, & Overcome". For more information on how to make the most of retraining, click on the underlined words.

Permanent Partial Disability Evaluation Cost Increase

Virginia Hunt — Mon, 25 Jan 2010 18:36:13 -0800

The State of Nevada, Division of Industrial Relations, has approved the Nevada Medical Fee Schedule effective February 1, 2010. It provides that rating physicians are entitled to charge $650.99 for a rating evaluation that includes up to two accepted body parts. The rating doctor may charge an additional $217.41 for each additional body part. Injured workers who contest the initial rating evaluation obtained by the industrial insurer are required to adhere to this fee schedule when obtaining a second rating evaluation from a second rating doctor. However, pursuant to NRS 616C.100, a hearings or appeals officer may reimburse the injured worker the cost of the second evaluation if the hearings or appeals officer finds that the second rating should be used as the basis for the permanent partial disability award.

Mileage Reimbursement-Update January 2010

Virginia Hunt — Thu, 14 Jan 2010 07:58:20 -0800

The State of Nevada DIR announced that mileage reimbursements to injured workers traveling to and from medical care or for vocational rehabiliation purposes has been decreased from 55 cents a mile to 50 cents a mile, effective January 1, 2010.

The regulations for mileage reimbursement of travel expenses are found at NAC616C.150. The request for reimbursement should be on the DIR form D-26, which has the rules for reimbursement on the back side. Please be sure to send in your reimbursement request form to your adjuster within 60 days of the date of your first trip on the form. Many injured workers make the mistake of waiting until the end of their claim to send in requests for mileage reimbursement, and the adjuster is then only obligated to pay for the last 60 days of qualifying travel.

FMLA Questions and Answers for Nevada Injured Workers

Virginia Hunt — Tue, 05 Jan 2010 09:21:03 -0800

Q: What is FMLA?

A: FMLA is The Family and Medical Leave Act of 1993, a federal law that requires employers of 50 employees or more to grant up to 12 weeks of unpaid protected job leave to eligible employees for certain family and medical reasons. There is a 12-month eligibility requirement, and only serious health conditions are covered. 29 U.S.C.A. Sections 2601, et.seq.

Q: Can my employer reduce my FMLA time while my treating physician takes me off work for my accepted work-related injury or occupational illness?

A: Yes, your employer can require that you complete FMLA paperwork and can reduce the amount of FMLA time you have available even though you are off work under an accepted workers' compensation claim.

Q: If FMLA time is running during my work injury, can my employer terminate my job?

A: During FMLA time, your employer may not terminate your job. At the end of your FMLA time, or 12 weeks, if your employer does not have light duty work within your restrictions, and if your employer decides not to extend your unpaid leave of absence, your employer may decide to terminate your employment. Your workers’ compensation benefit checks would continue, however. You would also be considered for vocational rehabilitation when you have permanent work restrictions if your employer is unable or unwilling to rehire you and offer you a permanent job within your permanent work restrictions.

Reopening a Nevada Work Comp Claim- 5 Questions

Virginia Hunt — Tue, 15 Dec 2009 08:16:40 -0800

I receive many phone calls and emails each week asking my help in reopening a closed claim. If you are shopping for an attorney, ask whether the attorney’s fee includes help in reopening your claim. If you need more medical treatment after your claim is closed and your attorney has been paid, you need to know whether you can count on that attorney to help you. It is difficult to get a new attorney to help you reopen your claim if the new attorney has no way to get paid for helping you.

The following questions should help you better understand the reopening process.

1. Are you sure that you have reopening rights on your claim?

Only injured workers who receive temporary total disability benefits or a permanent partial disability award before their claims are closed have lifetime reopening rights. If your injury costs the insurer less than $300 in medical expenses, and the insurer gives proper notice of claim closure rules, you may not reopen your claim. If you had medical expenses over $300, but you did not receive TTD benefits, or did not receive a PPD award, you may only reopen your claim within a year of its closure.

2. Have you gotten a medical report to attach to a reopening request letter?

You must either use your private medical insurance or pay cash to get a written report from a doctor that states that your injury has worsened from the time your claim was closed. The insurer will not reopen a claim without this medical report. Attach this report to a letter requesting reopening of your old claim, and reference your claim number. After the claim is reopened, send the insurer the receipt for your expenses in getting this medical report. If you cannot afford to get a medical report, do not ask to reopen your claim until you can pay for a report to attach to your request. The insurer will not pay for you to get this report- no exceptions!

3. Does the medical report identify an objective worsening of your injury?

The medical report must clearly state that your injury has worsened. If the report only says that the doctor wants another MRI because you are complaining of more pain, the insurer will not reopen your claim until after you pay for a MRI, and the MRI must show that your injury has worsened. Your doctor should discuss in what way your injury has gotten worse. Medical reports that only state that you have increased symptoms are not enough. If the doctor is only prescribing more pain medication or a few more visits of physical therapy to make you feel better, then your reopening request will be denied.

4. Does the medical report recommend additional treatment?

Again, If your doctor only states in his report that he wants more x-rays or a MRI before he knows what treatment you need, don’t ask for reopening until after you get more x-rays or a MRI so that your doctor can state what you need. Give your doctor a copy of your rating evaluation that was used for your permanent partial disability award so that your doctor knows what treatment you have already tried in the past. Your condition may have worsened, but if no additional treatment is recommended, the insurer will deny your reopening request.

5. Are you asking for treatment to a body part that was accepted?

An insurer will not reopen a claim for treatment to a body part that was never accepted and treated before the claim was closed. If you try to reopen your claim to get treatment for some other body part, it can be very difficult to convince the insurer or a hearings officer that you did not know that this other body part was injured in the original accident and that it now requires medical attention months or years later. If you aren’t sure what body parts were accepted, review the rating evaluation report that was used for your permanent partial disability award. It discusses what body parts were injured and treated.

It is important that you have all the information necessary to successfully reopen your claim before you send your reopening request to the insurer. If the insurer denies your request because you did not have complete information, and you do not appeal, or you lose your appeal, you cannot request reopening again for another year.

For more information about reopening a closed claim, see “How Do I Reopen My Claim?”

Physician Progress Reports- Nevada Work Comp Info

Virginia Hunt — Tue, 08 Dec 2009 18:00:22 -0800

After every visit to a treating doctor, the injured worker should make sure that he or she leaves with a copy of a physician progress report (PPR). Most doctors who are on insurers' provider lists use the DIR- approved physician progress report form. However, some doctors have forms on their own stationery that have the same information, but in a different lay-out. If the nurse or assistant checking you out after the doctor's visit does not offer you a copy of the PPR, please insist that they give you a copy before you leave. Then read the PPR before you leave the doctor's office to make sure that the information is correct and that you understand what the doctor has written.. A copy of this form will be sent to the adjuster handling your worker's compensation claim, and a copy is often sent to your employer.

The top portion of this form states in abbreviated medical terms what your injury and diagnosis is. If you have injured more than what is stated in this section of the form, you should have a discussion with the doctor to make sure that he or she has examined and noted all body parts that were injured and that need treatment.

The second section of the form is important when the doctor releases you from care. In that section, the doctor checks boxes that state that you are, or are not, ratable and may have suffered a permanent disability. If the doctor checks "no" to those two boxes, the adjuster is not likely to schedule you for a permanent partial disability evaluation, which is necessary to receive a settlement for your injury.

The section entitled "Treatment plan" often tells you whether the doctor will be requesting approval for MRI's, more physical therapy, or a referral to a specialist. Hopefully, your doctor's staff will then follow-up with the proper authorization request form so that the treatment plan is approved and put into motion.

The bottom third of the PPR is very important and tells the injured worker whether the doctor has taken you off work completely (totally temporarily disabled), or whether the doctor has given you work restrictions. If the doctor gives you temporary work restrictions, it is your responsibility to give a copy of the PPR with these restrictions to your employer and ask whether your employer has work available within these restrictions. Keep in mind that a copy of this PPR goes to your adjuster, and if the employer tells the adjuster that light duty work is available, the adjuster will not continue to pay bi-weekly TTD benefits to you.

Read the PPR before you leave the doctor's office to make sure you know whether the doctor has released you to full duty or with temporary work restrictions. Often injured workers misunderstand what their doctors verbally tell them about returning to work. You need to know what the doctor writes on the PPR, and if you disagree with what the doctor writes, you want to calmly and politely ask to speak to the doctor again to get a clarification before leaving the doctor's office.

Some doctors tell injured workers that they are prohibited by Nevada law from taking an injured off work completely. That is false information. The doctor has a legal obligation to provide care for his patients regardless of who is paying for his services. Many doctors, however, feel pressure from adjusters and case managers to give work restrictions instead of taking injured workers off work completely for extended periods of time. So long as the employer provides work within whatever restrictions the doctor gives on the PPR, the injured worker must show up for work, or take leave without pay if available, or use whatever sick leave is available. The only other recourse the injured worker has is to request a change of physicians to a more caring doctor.

Why Report an Injury?

Virginia Hunt — Fri, 27 Nov 2009 07:11:35 -0800

The Las Vegas Sun ran an editorial on 11/18/09 on the under reporting of work place injuries, urging that OSHA do a better job in accurately counting the number of work injuries and illnesses. The editorial stated that workers often don't report an industrial injury because they are frightened that they will be fired, disciplined, or will lose wages from time off if they report an injury. In these difficult economic times when many Nevadans are lucky to have any work at all, the incidence of under reporting and late reporting is even greater. However, the reasons for reporting a work place injury are more important than ever. If you have recently suffered a work place injury, please consider the following:

1. Most injured workers know their bodies well, and can tell within 72 hours whether they have a serious injury that requires medical attention. Nevada law requires that an employee make a written accident report to his employer within 7 days of the accident. Most Nevada employers additionally require that employees immediately notify their supervisor of a work-related injury or illness. Employers and claims adjusters are quick to deny claims when the employee takes a "wait and see" approach to reporting and filing a claim, particularly if the employee first gets medical care using private insurance instead of going to the designated clinic for work injuries. Many employers will also see a delay in reporting as a deliberate attempt to avoid a post-accident drug and alcohol test.

2. The risk of having a legitimate claim denied because the employee was late in reporting the injury far outweighs the risk of an employer trying to take adverse action against the employee for reporting an injury. In over 15 years practicing workers' compensation law in Nevada, I have only seen two employers stupid enough to fire employees for the reason that the employees reporting an injury and filed a claim, and both of those employers paid additional money to those clients on the advice of their attorneys to avoid lawsuits against them. Since 1984, the Nevada Supreme Court has held that an employee may sue his employer directly for wrongful discharge f the employer fires her for filing a workers compensation claim.

3. If an employee waits until they are laid off or terminated before filing a claim, there is a presumption in the law that the claim is not valid. The employee will likely have to go through the appeals process and will have a more difficult time trying to get the claim accepted.

4. Some injuries, such as serious hand injuries, require immediate medical treatment to avoid permanent disability. While concerns about how your employer will react to your reporting and filing an injury claim are understandable, your health and future ability to earn a living are more important. Employers are rarely penalized in Nevada for trying to negatively influence employees from filing injury claims. Hearings and appeals officers are seldom sympathetic to employees who delay filing claims because they fear retaliation of some kind from the employer. The best protection an employee has is to immediately file a written accident report with the employer and to comply with the employer's injury procedures. The employee must simply ignore any inappropriate comments or any disapproving looks from supervisors or safety directors when reporting the injury and obtaining medical care.

How to Contest Your Nevada PPD Award

Virginia Hunt — Tue, 20 Oct 2009 10:04:25 -0800

Under Nevada workers' compensation law, the final settlement, called a permanent partial disability award (PPD) is based on 3 factors: 1) the percentage of impairment found by a rating doctor, 2) the average monthly wage of the injured worker, and 3) the age of the injured worker when the award is calculated. If the average monthly wage was calculated correctly on the claim, and the insurer has the correct age for the claimant, the percentage of impairment offered by the insurer is the only basis an injured worker has for challenging the amount of the PPD award. Both the injured worker and the insurer can disagree with the percentage of impairment the rating doctor finds. However, injured workers who file appeals of their PPD awards, arguing only that the amount of money offered is too low, almost always lose their appeals.

An injured worker must be able to show a specific error in how the rating doctor determined the percentage of impairment in order to win an appeal regarding the amount of the PPD award. Or, if the insurer is refusing to offer the PPD percentage recommended by the rating doctor, the injured worker needs to be able to argue why that percentage is correct. A review of the PPD award by an experienced Nevada workers' compensation attorney is necessary to help an injured worker with a serious,permanent injury decide whether an appeal should be filed or not, and whether money should be spent getting a second rating report. Many workers' compensation lawyers in Las Vegas will review a rating report for free as part of a free initial consultation.

Rating doctors must use a book called the AMA Guides to Evaluation of Permanent Impairment (currently the 5th edition) to determine the PPD percentage. The Guides are complex. Many rating physicians, especially new doctors added to the list, make mistakes. While the Division of Industrial Relations is supposed to check PPD reports, it is really up to the injured worker and her work comp lawyer to find any errors, and to then file an appeal and get a second rating within 70 days. Injured workers frequently think that the rating doctor has made a math error in adding the percentages in the last section of the report. An experienced work injury lawyer can explain to an injured worker that the Guides have charts requiring that numbers be combined rather than added to arrive at the right percentage.

If the injured worker' decides to contest the PPD award, he must first file a timely appeal on the request for hearing form provided with the PPD offer. Next, his attorney obtains the name of a rating doctor from the rotating list from DIR. The attorney then sends a complete copy of the client's medical records to the assigned rating doctor, schedules an appointment for the rating exam, and pre-pays the current fee for a rating. The fee for a rating, effective 2/1/09 through 1/31/10 is $630.80. ( When hiring a work comp attorney, an injured worker should ask whether the lawyer goes with his or her clients to rating evaluations.)

If the second rating doctor finds a higher percentage of impairment, the report is sent to the insurer. If the insurer won't pay the higher PPD, the hearing officer may, or may not, award the higher PPD when the appeal is heard. There is no guarantee that the second rating doctor will find a greater percentage of impairment. If the second rating is lower than the first, the injured worker simply withdraws the appeal, and accepts the amount that the insurer has previously offered. The hearing officer may, or may not order the insurer to pay any higher percentage, and the hearing officer can order the insurer to reimburse the injured worker for the cost of the second rating. Both the insurer and the injured worker have the right to appeal the hearings officer's decision to an appeals officer.

A hearings officer or appeals officer may order a third rating with either a mutually agreeable rating doctor or the next assigned rating doctor from the rotating list. An injured worker is usually prevented from receiving any portion of his PPD award in a lump sum if the amount of the PPD is appealed, so the injured worker will want to make sure that he or she has been advised by an experienced Nevada workers' compensation attorney before deciding to litigate this issue. Once the injured worker elects to receive a PPD award in a lump sum and is paid, there is nothing that can be done to correct any wrong percentages of impairment. As it costs the injured worker nothing to have the PPD offer reviewed by a knowledgeable attorney in Nevada workers' compensation law, it would be unwise to accept an award without first knowing whether it is correct or not.

Nevada Permanent Partial Disability Awards Explained

Virginia Hunt — Tue, 20 Oct 2009 08:24:41 -0800

When an injured worker's treating physician reports to the insurer that there may be a permanent impairment, the adjuster should schedule an impairment evaluation with a rating doctor. The impairment percentage determined by the rating doctor results in a monetary settlement known as a permanent partial disability award (PPD). Rating doctors are chiropractors and physicians who have taken a test on how to determine permanent impairment using the criteria in the AMA Guides to Evaluation of Permanent Impairment (currently the 5th edition). Those doctors' names are on a rotating list of rating doctors maintained by the State of Nevada Division of Industrial Relations.

If the injured worker or his attorney do not agree with the adjuster on a particular rating doctor to do the exam, the adjuster must schedule the exam with the next doctor assigned from the rotating list. A chiropractor may perform the rating exam if the injury is to the musculoskeletal system (spine, knees, shoulders, feet, hands, etc.). If the injury is to internal organs or is very complex, only a medical doctor will be assigned. Only qualified eye doctors rate vision impairment. The rating doctor cannot be a doctor who has treated the injured worker or who has been asked to do a consultation.

The rating takes place at the doctor's office. The adjuster is responsible for sending all of the medical records before the exam. However, it is not unusual for records to be missing. Almost all rating doctors allow the injured worker's attorney to be present for the exam. The insurer must pay for the initial rating, and the cost of a rating depends on the number of body parts injured. Effective for 2/1/09 through 1/31/2010, the cost for up to two body parts is $630.80.

The AMA Guides give detailed instructions to the rating doctor on how to determine an impairment percentage for each body part. Many injuries are rated by measuring how much motion is lost in the joint. Some injuries are easy to rate, such as amputations. However, most injuries require multiple measurements and depend on the doctor's ability to apply the Guides correctly. There are often significant differences in rating percentages depending on which doctor is doing the exam.

Not every injury requiring a surgery is ratable. An injured worker's ability to return to work is not used to determine impairment. Pain is not ratable, but injuries to particular nerves can be rated.

The rating doctor sends his report to the insurer within 14 days of the exam. The insurer must then make a written offer within 14 days of receiving the report. The offer must be based on the percentage of impairment determined by the doctor, or the insurer must explain in writing why the insurer disagrees with the percentage. Injured workers who disagree with the percentage given by the rating doctor, or with a lesser percentage offered by the insurer, may file an appeal and obtain a second rating from another rating doctor assigned from the rotating list. (For more information go to the blog "I Disagree with My PPD Rating".)

The PPD award is calculated by using the percentage of impairment given by the rating doctor, and the average monthly wage of the injured worker, and the injured workers age at the time of the award. It is necessary to have the actuarial tables and the correct statutory formula to correctly calculate the award. (See DIR forms 9a and 9b). Injured workers with the same percentages of impairment for the exact same injury will receive different PPD awards depending on how much money they were making at the time of their accidents, and how old they are.

An injured worker may accept a PPD award in a lump sum, or may elect to receive the award in installments until she is 70 years old. Awards taken in a lump sum are reduced to present value. If the injured worker's impairment was greater than 25%, only the equivalent of a 25% PPD can be taken in a lump sum. The percentage over 25% is paid in installments.

Although the PPD percentage is not based on an injured worker's ability to return to work, the percentage does govern the length of a retraining program that can be offered if the injured worker is entitled to vocational rehabilitation services. (See blogs and articles on vocational rehabilitation for more information.)

Please note that this is only a summary of how permanent partial disability awards are determined in Nevada. Pertinent statutes andregulations are: NRS 616C.100, NRS 616C.490, NRS 616C.495, NRS 616C.110, NAC 616C.1162, NAC 616C.103. Many attorneys offer a free review of a PPD rating report for signs of obvious errors.

How Much Retraining Can An Injured Worker Get in Nevada?

Virginia Hunt — Wed, 30 Sep 2009 09:16:05 -0800

Nevada law (NRS 616C.555), provides that the length of a retraining program that may be authorized is determined by the permanent partial disability impairment percentage (the PPD). This law does not make a lot of sense in that a an injured worker may have a high PPD under the AMA Guides to Evaluation of Permanent Impairment, but may be capable of returning to work, particularly if the injured worker’s job was sedentary. Similarly, an injured worker may rate a low PPD under the AMA Guides , but may not be capable of working unless he is retrained for a long time. Nonetheless, the length of a retraining program is limited by the PPD percentage, regardless of the actual needs of the injured worker.

Injured workers with PPD’s of 1% to 5% may be offered programs up to 9 months long.

Injured workers with PPD’s of 6 to 10% may have programs up to 12 months.

Injured workers with PPD’s of 11% or more may have programs up to 18 months.

Only severely injured workers, or those with exceptional circumstances may obtain programs that are longer under NRS 616C.560. The law is worded in such a way as to allow insurers to offer less than the maximum allowable length of retraining if the insurer believes that the injured worker could be retrained to gainful employment in a shorter amount of time. A good vocational rehabilitation counselor will try to request the best program for the injured worker. Realistically, it is very difficult to find suitable retraining programs for injured workers who were earning high wages at the time of their accidents because of the statutory restrictions on the length of retraining programs.

How Are Benefits Calculated in Nevada?

Virginia Hunt — Wed, 30 Sep 2009 08:13:05 -0800

Once a claim is accepted by the insurer or the third-party administrator handling the claim, if the injured worker is off work for more than five days in a row, or five days within a twenty-day time period, temporary total disability benefits (TTD) are paid. In order to pay TTD benefits, the insurer must first get information from the employer on a wage verification form that asks the employer what the injured worker’s gross wages were in the 12 weeks before the date of the injury. Any overtime wages the injured worker earned during those 12 weeks are included. This earnings history is then used to determine the average monthly wage. An injured worker can request that the insurer use a one-year earnings history instead of a 12-week earnings history if that would result in a higher average monthly wage.

The TTD paid is then calculated at 66 2/3% of the average monthly wage. For example, if the injured worker’s average monthly wage is $3000, the TTD benefits would be $2000 if the injured worker were off work for one month. There is a maximum average monthly wage set by the state each year. Injured workers who earn more than the state maximum average monthly wage will have their benefits based on the maximum average monthly wage, and will therefore receive less than 66 2/3 of what they were really earning before their injury date.

Regulations address how an insurer is to determine the average monthly wage of injured workers who have not worked for 12 weeks before the date of their injury, or how to calculate average monthly wage of piece workers, or union employees, or other individuals with special circumstances. These regulations also address when the insurer should exclude days from the calculation if the employee had a certified illness or absence from work so that the average monthly wage calculation is not unfairly too low. Injured workers who were working for more than one employer at the time of their accident may have the wages of the second employer, called the concurrent employer, included in the average monthly wage calculation. However, it is up to the injured worker to notify the adjuster that there is a concurrent employer and to supply that wage information to the adjuster.

It is very important that the average monthly wage determination is correct, and that it is as high as it should be for the injured worker. This average monthly wage figure is used to calculate benefits when the injured worker is off work due to the injury, and is also used to determine how much money the injured worker receives for a permanent partial disability award. The average monthly wage established on the claim when it is closed will also be the average monthly wage used if the claim is ever reopened in the future. Injured workers who request a free consultation with an attorney should always discuss with the attorney whether the average monthly wage calculation appears to be correct.