IME Docs' Perspective

 This past weekend (November 7-9, 2014), I spoke twice at a conference of the American Academy of Orthopedic Surgeons.  Orthopedic doctors from various states attending the particular sessions I taught were mostly older, and many were hired by industrial insurance adjusters to do independent medical exams on claims where attorneys were involved.   I had just blasted so-called IME's in Nevada in my last blog post, so it was interesting that I now had to face a group of doctors for two hours each day to lecture and answer their questions about how a  claimant's' attorney analyzes work comp medical issues.  I hope it was a learning experience for the doctors.  I know that I learned a lot and think I will be a better claimants' attorney having this opportunity to interact with these doctors. 

My first impression of this group of doctors was that their opinion of claimants' attorneys was very negative.   Many of them truly thought I would agree to represent someone  who had no medical evidence to support an injury claim so long as I thought I could earn a fee. Others thought that the longer I was able to keep an injured worker off work, the more money  I made.  

Former defense attorney, David DePaulo, Esq., co-taught both seasons with me.  He now runs www.workcompcentral.com, a website with a wealth of information on all states' and federal work comp systems.   He is an engaging and highly knowledgeable speaker. I enjoyed working with him. 

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Injured Workers Wrongfully Billed for Medical Care

 If you are an injured worker with an accepted workers' compensation claim in Nevada, you should not be receiving bills from hospitals, radiologists, labs, doctors, or physical therapists for treatment that was authorized by your adjuster. In fact, it is against the law for medical providers  on claims they know are accepted to bill the injured worker if they don't get paid quick enough or at all by the workers' comp. insurer. NRS 616C.135.

Sometimes, I see bills that have a stamp that says the work comp insurer has been billed and that because it hasn't been paid, the injured worker should show the bill to the employer.  This too is wrong, because the employer isn't responsible for the bill.  Nor is it likely that an employer will actually get after the insurer to pay the bill.  Instead, the injured worker worries, and even pays the bill that he or she shouldn't have to pay.

I also see cases where the medical provider sends the bill to collections against the injured worker when the work comp insurer fails to pay bills on accepted claims.  I'm trying to track just how prevalent this occurs so I can do more about it.  The law referenced above says that the DIR can fine a medical provider $250 for violating the law.  Big deal!!  What is $250 to a billion dollar corporation?  How much money has already been wrongfully collected from injured workers,  and how many have had their credit ruined?  I want to know.

Until I can find a better solution for injured workers, I recommend that you file a complaint with DIR, attaching a copy of your claims acceptance letter and the bill you receive from a medical provider.  Also attach any collection notices.  Please note that this statute only covers situations where you can show that the medical provider knew that they were providing services on a workers' compensation claim that was already accepted.  I would really like to hear from you if this has happened or is happening to you so that I know how frequently this occurs. 

(Please note:  This is not to be interpreted as any promise to provide you with legal representation.  I am simply trying to determine how serious this problem is for injured workers at this time.)

--Written by Virginia Hunt, Hunt Law Office

Independent Medical Exams Are Rarely Independent

 When an injured worker in Nevada gets a letter requiring attendance at an "independent medical examination",  it's reasonable to assume that the doctor will in fact be independent and objective.  Unfortunately, there is nothing independent about an adjuster choosing which doctor will second-guess  another doctor's opinion.  For example, if a treating doctor reports that a herniated disc was caused by the work accident, and the adjuster doesn't like that diagnosis, the adjuster might require that the injured worker attend an "independent medical exam" (IME) with a doctor the adjuster knows will instead diagnose just a lumbar strain. 

I see the same doctors used again and again by some adjusters because they can rely on the IME doctor to give the "right" answers to a letter the adjuster sends only to the doctor.  Not all adjusters engage in this unfair practice, but enough do that it is a problem.  The adjuster should at least be honest about what the exam is and call it a consultation ordered by the insurer or employer. 

Knowing that an IME doctor is not really independent, can an injured worker refuse to attend the exam?  No, unfortunately, not. . Nevada law allows an adjuster to schedule a consultation with a physician the adjuster chooses, and if the injured worker won't attend the appointment, his benefits can be suspended until he does attend.  NRS 616C.140. 

 If the injured worker is represented by an experienced workers' compensation attorney, there are various strategies to counter the loaded IME.  One is to file an appeal immediately upon receipt of a letter from the adjuster scheduling with a known defense doctor.  Once the claim is in litigation, an appeals officer could order another IME, but one that is with a doctor agreed upon by the attorneys.  If the attorneys cannot agree on a doctor, the appeals officer usually asks the attorneys to give the appeals officer three names, and the appeals officer chooses the doctor.  The appeal officer will also order that no one but the injured worker speak to the IME doctor, and the IME doctor must answer only questions asked by the appeals officer in a document called an interim order. 

--Written by Virginia Hunt, Hunt Law Office

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Nevada Insurers Often Wrong About Pre-existing Conditions

 Any injured worker over the age of 30 with a serious work injury is likely to find some reference in  his or her medical records to degeneration of the body part being examined.  Degenerative disc disease, for example, is actually a normal  part of the aging process.  But insurers and their third-party administrators start to drool when they see those words in x-ray and MRI reports, because it gets them thinking about how they might reduce medical expenses or subtract from  the PPD award on the claim.  

Some insurers are very aggressive about denying claims for the reason that the injured worker has a pre-existing condition.  Most physicians, not knowing what Nevada law says about pre-existing conditions, don't help the situation.  Many doctors on the insurers' exclusive provider lists simply shrug their shoulders when their requests to perform surgery are denied.  They tell the patient that they will have to use their private insurance or pay out of pocket to have a surgery for a work injury that aggravates a pre-existing condition.  If the patient was probably going to need surgery at some future time anyway, these doctors think that the insurer is justified in limiting the scope of the claim.  However, under Nevada statutory law and Nevada case law, many of those types of injuries should be treated under the workers' comp claim.

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When a Win is Not a Win- Stay Orders

 If an injured worker in Nevada successfully convinces a hearing officer to reverse an adjuster's action on a claim, the insurer and/or the employer has the right to file an appeal to an appeals officer.  The insurer or employer must file their appeal within 30 days (plus 3 days for mailing of the hearing officer's decision).  The insurer or employer usually wait until the last possible day to file an appeal.  Whether the insurer has to comply and do what the hearing officer ordered depends on whether the insurer is able to obtain an order from an appeals officer staying the decision of the hearing officer until the next appeal is decided by the appeals officer.  

 A Motion for Stay is the legal document that the insurer or employer files with the appeals office asking the appeals officer to order that the insurer does not have to do what the hearing officer ordered.  The insurer or employer who files an appeal of a hearing officer's decision almost always files a Motion for Stay when they file an appeal from a hearing officer's decision.  The insurer usually argues in a Motion for Stay that because the law does not allow an  insurer to recover any benefits it must pay before its appeal is decided by the appeals officer, the decision of the hearing officer should be stayed.
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Nevada Fire Fighters Have Special Work Comp Laws

 Special Work Comp Laws Applicable to Fire Fighters

A. Contagious diseases

Exposure to contagious diseases while providing medical care at work is considered an injury by accident.  NRS 616A.265 (2); testing and lifetime benefits for tuberculosis, hepatitis, and HIV are covered in detail for fire fighters. 

B. Cancer

 There is a rebuttable presumption of compensability if a fire fighter’s cancer develops or manifests itself out of and in the course of employment after 5 years of employment and the fire fighter was exposed to a known carcinogen and the carcinogen is reasonably related to the disabling cancer.  NRS 617.453. This law has a non-exclusive list of known carcinogens and cancers they are associated with.  This rebuttable presumption extends for cancer diagnosed after employment terminates for period not to exceed 5 years.  The employer can present evidence to rebut presumption.   If fire fighter doesn’t have 5 years of employment for the rebuttable presumption to apply, she may still seek occupational disease benefits by proving her cancer is work related under NRS 617.440 (See Evans case.)

 C. Lung disease

NRS 617.455(5) provides for a conclusive presumption that lung disease is occupationally related if the fire fighter has 5 years of service; if the fire fighter has 2-5 years of service, must show that lung disease was caused by exposure to heat, smoke, fumes, tear gas or any other noxious gases arising out of employment. Failure to correct predisposing condition when ordered in writing by examining doctor after lung exam excludes fire fighter from benefits if the correction is within the ability of the fire fighter.  Fire fighter may elect PT benefits if disabled from returning to work as fire fighter.

 D.   Heart disease

NRS 617.457 provides for a conclusive presumption that a disabling heart disease is occupationally related for fire fighter with 5 years of continuous, full time employment. A failure to correct predisposing conditions is a defense to the claim.  Fire fighter who is partially disabled and cannot work as a fire fighter may elect PT benefits.

 E.    Hepatitis

 Under NRS 617.485, hepatitis is conclusively presumed to be occupationally related of a fire fighter with 5 years of employment, unless the fire fighter had that particular kind of hepatitis when employed as a fire fighter. Fire fighter may elect PT benefits is partially disabled and unable to work as a fire fighter.

 

 

 

 

                                                                                                                             

--Written by Virginia Hunt, Hunt Law Office

Dr. Pirruccello Explains How to Rate Spinal Injuries

Virginia :  The primary purpose of my blog posts is to inform Nevada's injured workers about the law and the claims process.  However, I occasionally like to offer my readers from the workers' compensation industry a more detailed analysis of a current issue that requires a working familiarity with Nevada workers compensation claims.   The following is a guest blog post by a well-respected Nevada rating doctor on a difficult  rating issue.  (Chiropractors on the DIR's list of rating doctors  are  qualified to rate any injury to the musculoskeletal system.)

Under the 5th edition of the AMA Guides to Permanent Impairment, when a rating doctor is evaluating a cervical, thoracic, or lumbar spine injury, such as a herniated disc, the doctor must correctly  choose one of two rating methods in the book.  Whether the rating doctor uses the  range of motion method , or uses a DRE category can significantly change the percentage of impairment.   Ultimately, the  amount of money the injured worker receives as his PPD award, will be affected.  I asked Paul Pirruccello, D.C,  currently on the DIR's panel to review Nevada ratings for errors,  to explain when the Guides require that the rating doctor use the Range of Motion method of rating spinal injuries:

 

 When Should the Range of Motion (ROM) Method Be Used for Spinal Impairment?

When an adequate number of PPD ratings have come across your desk, you will inevitably come across spinal ratings where the ROM Method has been used because the rating doctor thinks there is "multilevel involvement."  The major concern in these cases lies in the rater's understanding of the AMA Guides definition of multilevel involvement.  The proper utilization of the ROM Method is best defined in Section 15.2a #4 on page 380 of the AMA Guides, as follows:  a. Fractures at more than one level in a spinal region. b. Radiculopathy bilaterally or at multiple levels in the same spinal region. c. multilevel motion segment alteration (such as multilevel fusion) in the same spinal region. d. Recurrent disk herniation or stenosis with radiculopathy at the same or a different level in the same spinal region.

 
The key findings that must be associated with multilevel involvement, when using the ROM Method are: fractures, radiculopathy or alteration of motion segment integrity (fusion).  Without one of these key findings the ROM Method should not be used.  
 
I have oftentimes seen PPD reports where raters have used the ROM Method for multilevel degenerative disc disease, multilevel disc bulges, multilevel strain/sprain injuries or multilevel disc herniations without multilevel radiculopathy.  None of these qualify for use of the ROM Method.  Always think multilevel fractures, radiculopathy or fusion when you think of the ROM Method and multilevel involvement.  Without these qualifiers, the DRE Method is used.
 
by Paul Pirruccello, D.C. Sept. 2014
 
Dr. Pirruccello has been a practicing chiropractor in Reno for 33 years and continues to treat workers compensation patients.  He has performed PPDs since 1998 in Reno and Las Vegas, and PPD reviews since 2002.  He is currently in his second stint on DIR's PPD Review Panel.  He can be reached for questions at doctor@pirruccello.us.
 

 --Written by Virginia Hunt, Hunt Law Office

What's An Apportionment of Your PPD Award?

Forgive me for not explaining the word apportionment sooner in my past blog posts about permanent partial disability awards on Nevada workers' compensation claims.   It's a bad word, and it means subtraction from the percentage of impairment.  It the rating doctor writes in his report that he found you have a 10% whole body impairment, but is apportioning the award by 50%, that means you will be offered a 5% whole body award, or half of the amount of money you would have been offered.

If your adjuster on your claim  has been talking or writing about preexisting medical conditions or has mentioned the  degeneration noted in x-rays or your MRI reports, you should be prepared for the adjuster wanting the rating doctor to apportion your impairment.. A good rating physician will always throw in a sentence or two that they considered apportionment even if they don't do any subtracting in coming up with the final percentage.  An adjuster who wants your award sliced in half or a good chunk deducted from it, may even write to the rating doctor after she gets his report and ask him to reconsider apportioning the award. 

Many rating doctors are falling victim to adjusters who are getting very aggressive about reducing injured workers' awards.  It is no secret among workers' compensation attorneys that many adjusters have a short list of their favorite rating doctors; ones that they will agree to do the rating rather than have one assigned by the DIR's rotating list.  In order to stay in the adjuster's good graces and on this short list, some rating doctors will apportion awards when they should not be making subtractions.

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Mark Kabins, M.D., Orthopedic spine surgeon

 Mark Kabins, M.D. spoke to a small group of claimants' attorneys last week to  talk about treatment of work-related spinal injuries.  Dr. Kabins, a long-time resident of Las Vegas, was a very animated and passionate speaker about  treating injuries  under workers' compensation  claims. He is a Diplomat of both the American Board of   Orthopedic Surgery and the American Board of Spine Surgery.  

I told  Dr. Kabins that many of my clients want to k now whether they should be asking for a transfer of care to a neurosurgeon,  or instead,  to an orthopedic surgeon,  when it appears that they may need a back or a neck surgery.  Dr. Kabin's response was to send the person to the doctor who is the best surgeon, regardless of what they list as their primary specialty.  Dr. Kabins then elaborated that his surgical practice is different from other local surgeons in that he does not pre-screen his patients so that only likely surgical candidates are scheduled.  Instead, he welcomes treatment of back strains where there are muscle rips at the ligaments, and he wants to be involved early in the treatment of such cases so that the patient can be properly educated about the diagnosis and become an active participant in their own healing process. 

Dr. Kabin's stated that about 15 to 30% of the lumbar injury cases referred to him really involve an injury at the SI joint level.   He also explained the difference between a lumbar bulge (either normal, or depicting an annular tear), and contrasted it with a disc  protrusion, which  he described as  a pimple-like subligamentous disc herniation.

 Dr. Kabins is a  fantastic  educator, and he justified the long wait times in his office for patients as being necessary in order to allow him whatever time is required to properly attend to individual patents.  His office manager, Brenda Cotton,  recommended calling ahead and discussing any particular time requirements you may have so as to reduce extended time in the waiting room.  Dr. Kabin's outstanding record of safe surgeries with excellent results should matter more than a quick appointment for injured workers looking to transfer care from the initial clinics.

Dr. Kabins also treats patients with injuries from California and Arizona who must be billed under those states' fee schedules.  Although he is currently on provider lists for many Nevada insurers and their third-party administrators, he is not opposed to  opening provider lists to any physician in good standing who is willing to accept the Nevada fee schedule.  He practices with Mary Ann Shannon, M.D., who specializes in upper extremity, hand and sports injuries.  John Reneau, M.D., is a physical medicine  and rehabilitation  physician with the  practice, called Las Vegas Orthopedics, Spine, and Rehabilitation.  Their office is located at 501 S. Rancho Dr., Suite I-67, Las Vegas, NV 89106.  Their phone is (702) 243-4700.

--Written by Virginia Hunt, Hunt Law Office

Dr. Maureen Mackey Dies

One of the best physicians to care for Nevada's injured workers died recently following a long battle with cancer. I first met Dr. Maureen Mackey when I was working as an attorney for the State Industrial Insurance System, and she was employed as a physical rehabilitation doctor for the Jean Hanna Clark Rehabilitation Center in the building now occupied by the dental school on Charleston Boulevard in Las Vegas.

Dr. Mackey was particularly known for her extraordinary compassion when treating people with traumatic brain injuries and spinal injuries that prevented them from ever returning  to any kind of employment after a work accident. When she left the JHCRC to open her own medical practice at a shabby little office on the corner of Sahara and Eastern, she continued to treat many of those permanently and totally disabled injured workers. I know that she didn't get paid much, if anything, for continuing to care for many of them. That made it impossible to decline when Dr. Mackey called to ask if I could help one of her homeless or brain-injured patients who needed legal help for free. 

She had one  "good" chair  for visiting lawyers who didn't want to ruin their suits on her ratty old chairs when their clients were rated for impairments. Regardless of what  injury she was rating, Dr. Mackey always gave the injured worker an eye exam, and she always scolded those people who were neglecting their health.   She wasn't liked by everyone because she  spoke her mind, and she didn't back down when she thought she was right.  

I remember one rating exam when my client, who had three failed back surgeries, asked her whether he would ever get better.  This client had correctly guessed  that Dr. Mackey was someone who would tell him the truth. Dr. Mackey looked him in the eye and said, "No, only prayers will help you now. Shall we pray together?"  The client smiled and said, "Sure."   Dr. Mackey, who was a bit overweight and with bad knees, then held the client's hand, ordered me to kneel (as I was the only one in the room who could kneel), and she said a prayer aloud for the client.  We could use some more doctors like her. 

--Written by Virginia Hunt, Hunt Law Office

Out-of-State Medical Care for Nevada Injured Workers

 Nevada has a highly transient population, with people moving in and out of the state frequently, particularly in this volatile economy.  I remember the days when they used to publish the Las Vegas phone book twice a year. (Now no one uses a phone book; we use our smart  phones.)  

When an injured worker with an accepted Nevada claim moves out of Nevada while still needing medical care, he or she must do the following:

1. Before the move, find the name of  a reputable doctor you want to treat you.  Do some homework and ask people in your new hometown.  You may also ask your adjuster on your Nevada claim whether a nurse case manager she knows can ask for names, as they sometimes belong to a network of nurse case managers nationally.  

2. Send this link to the doctor and ask the doctor whether they will ask as payment what the Nevada fee schedule provides.

3. Once the doctor responds that she will accept the Nevada fee schedule of payments, request in writing to the adjuster that she authorize the change of doctors.  All of this takes time, which is why you need to start this process about a month before you move. 

4. Print out and take a copy of the Physician Progress Report you will have the doctor fill out after every doctor visit (that must occur monthly at a minimum).  This form will be necessary in order for you to receive benefits if your doctor takes you off work.  (If the doctor gives you work restrictions, whether you get benefits will depend on whether or not your employer at the time of the accident has light duty work available.  If not, you get benefits.  If the employer does have light duty, you don't get benefits simply because you moved and can't report for light duty work.)

5. If the doctor checks the box that you have a likely ratable impairment at your last doctor's visit, the insurer will pay for you to return to Nevada for a permanent partial disability evaluation (also known as a rating.) 

--Written by Virginia Hunt, Hunt Law Office

Temporary Partial Disability Benefits under Nevada Law

Temporary partial disability benefits  (TPD) are benefits that may be payable under the following circumstances:

1. You are working a temporary light duty job at a lesser wage because your duties are different, or you are making the same wage but your employer has reduced your hours each week;

2. You have a permanent job that is within your restrictions, but you are not making your compensation rate, but hope to within the next two years ;

3. You have concurrent employers at the time of your injury, and can only return to work for one of those employers while recuperating from your injuries,

In each of the above examples, in order to determine whether any TPD is owed, we must first know what your average monthly wage is on your claim and your compensation rate.  The average monthly wage is that calculation your adjuster sends you which determines how much you will be paid when when and if you are entitled to lost time compensation benefits.  For example, if your gross monthly wages were $3000, your average monthly wage would be $3000 a month, and your compensation rate (what you would actually receive in benefits when taken off work by your doctor.  That would be 66 2/3 of your average monthly wage, or $2000.

Your compensation rate is also expressed in terms of a daily rate,  which is then multiplied by the usual 14 day period the insurer pays bi-weekly benefits to those claimants off work due to their injury.  Each consecutive day within a pay period is counted, including Saturdays and 'Sunday. 

You can tell whether any TPD is owed to you by taking your current paycheck stub from your employer from your reduced hours temporary light duty job, and subtracting your net (how much you made after taxes, SSI, medicare   If that amount is less than your compensation rate for that same period of time, then workers' compensation will owe you the difference between your compensation rate and what you netted on your paycheck. 

Click here for any easy worksheet you may use to determine whether TPD is owed for a particular pay period.  If so, you need to send a copy of your paycheck to your adjuster and ask that TPD be paid for that time period.  You will have to look at each paycheck you receive to determine whether you are owed TPD that time period.   

If you have a permanent light duty job and aren't making your compensation rate, TPD benefits are payable for up to tow years.  After two years you should be making your compensation rate. 

Remember, you must actively seek these benefits by promptly sending in paycheck stubs and by asking for these benefits. 

--Written by Virginia Hunt, Hunt Law Office

Work-related Car Accident Claims Are Complicated

 If you are injured while in the course and scope of your employment while driving, and the accident wasn't your fault, your case is more complicated than the usual work injury case.  I urge you to consult with a knowledgeable attorney so that you do not lose important rights and sources of recovery available to you.  

Not all personal injury attorneys are knowledgeable about Nevada's workers' compensation law. If the driver who caused the accident has only a minimal liability policy of $15,000,  your workers' compensation benefits may be even more important to you than your personal injury attorney realizes.  Also, because the workers' compensation insurer who pays for medical or compensation benefits on your claim is entitled to share in any recovery against the person who is at fault for the accident,  your lawyer will be important in negotiating who gets what portion of any settlement monies.   You may find that you need both a workers' compensation attorney in addition to a personal injury attorney to make sure that you are getting all benefits and monetary damages available to you.  Here are some important questions to ask any attorney you meet before you decide who will be representing you:

  • Will the attorney be representing  you on your workers' compensation claim, or just on your personal injury claim against the driver who hit you?  Workers' compensation law has a different court system to decide disputed issues with insurers, and is based on laws passed by the Nevada legislature.  Personal injury cases are decided under tort law, based on traditional common law and statutory law.  While most personal injury cases involving moderate damages are decided by arbitration or by short trials in front of fewer than twelve jurors, personal injury law is very different than workers' compensation law,  even if the same injury is involved.
  • If you only hire a personal injury attorney and try to handle your workers' compensation claim yourself, is your personal injury attorney aware that under  Nevada workers' compensation law, you must see only doctors on your insurer's provider list?  When  the  adverse driver's liability policy limits are low, you don't want to unnecessarily pay for medical treatment on a lien basis from your portion of a personal injury settlement if you can medical treatment under your workers' comp claim.
  • Has the attorney asked you about what other motor vehicle policies might have coverage available to compensate you?  
  • Does your personal injury attorney use a subrogation lien agreement to address what offsets the workers' compensation insurer will assert after your personal injury case is settled, both on an open workers'  compensation claim and in the event the claim is reopened? 
  • Resist "making friends" with the adverse driver's insurance adjuster who may contact you before you hire an attorney.  Their job is to pay the least amount possible.  Do not give recorded statements, and do not agree to settle your claim without the help of an attorney who knows that the industrial insurer's subrogation lien must also be paid or negotiated. 

--Written by Virginia Hunt, Hunt Law Office

Does Your Employer Need to Keep You When You Have Permanent Work Restrictions?

 Let's assume that you have an accepted workers' compensation claim in Nevada, and that your treating doctor has just released you with permanent work restrictions that would  ordinarily prevent you from being hired or going back to your regular duties at the job you had when you were injured.   The question is whether your employer must take you back and find you work that takes into account that you have these permanent work restrictions. 

Under Nevada workers' compensation law, the answer to that question is:  No your employer is not required to modify your old job or find you a new job where you don't have to do any work that would exceed your permanent work restrictions.  Instead, your employer can simply tell your adjuster that they don't have work within your permanent work  restrictions and that the employer will not be making a permanent light duty job offer.  When that happens, the adjuster schedules you to meet with a vocational rehabilitation counselor to discuss the two options that are available to you under Nevada workers' comp law:  a retraining program, or a sum of money called a vocational rehabilitation lump sum buy-out.  How long a retraining program, or how much money your can get as a buy-out, will depend mostly on what your percentage of impairment is after your rating evaluation.

But what if you really wanted to remain with the same employer and don't want to be retrained or don't want to just accept a buy-out and then have to find work on your own?   Is there anything you 

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Bad Law on Doctor Choice for Nevada Injured Workers

 Change Needed to Nevada’s Law on Physician Choice for Injured Workers

A.     A Short History of the Law

In 1913, Nevada first enacted the Nevada Industrial Insurance Act and the Nevada Occupational Disease Act, now known as NRS Chapters 616A-D, and NRS Chapter 617.  It was administered by the NIC (Nevada Industrial Commission).   The NIC was a monopolistic state agency.  No private insurers were allowed to provide policies to employers, and there were no self-insured employers.   In 1973, the legislature directed the NIC to appoint a panel of physicians statewide who were competent to treat injured workers, and the NIC could add, suspend or remove doctors from the panel.

 In 1979, large employers were allowed to become self-insured, and the Dept. of Administration took over the Hearings Division from the NIC.  In 1981, the SIIS (State Industrial Insurance System) replaced the NIC.  The Division of Industrial Relations, a sub-agency of the Dept. of Business and Industry was given regulatory authority over the SIIS and self-insured employers.  During that period of time, the NIC, and then the DIR, continued to maintain a panel of physicians from which the injured worker was free to choose a treating doctor.  Almost all doctors licensed to practice in Nevada were added to the panel.  Healthcare providers were reimbursed based upon a fee schedule developed by DIR and based upon customary billings procedures.   Providers were paid their full bill or the amount allowed under the fee schedule, whichever was less.

In 1993, SIIS management claimed that it was unable to pay its long term liabilities.  The alleged insolvency became a crisis since SIIS was a state agency.  Sweeping legislative changes were made to reduce the perceived deficit, including managed care.  SIIS was authorized by the legislature to contract with a limited number of providers.  The idea was that competition to become a provider on the insurer’s panel of doctors would result in providers agreeing to substantially lower fees for service.  The legislature also abrogated the right of the injured worker to choose any doctor from the DIR’s panel of physicians.  It passed NRS 616C.090, requiring an injured worker to select a treating doctor from the employer insurer’s MCO plan.  

In 1999, SIIS was privatized, and the state fund was replaced by a mutual insurance company called Employers Insurance Company of Nevada (EICON). Private insurance carriers were also allowed to underwrite policies.  More large employers went self-insured.

In response to complaints by labor advocates regarding the lack of choice of treating doctors available to injured workers under the managed care provision, the legislature passed a law in 2003 allowing DIR to adopt regulations concerning the adequacy of physicians on provider panels.  DIR was to hold a public hearing and then adopt regulations ensuring that injured workers had a meaningful choice of physicians. Private carriers, EICON and self-insurers were still authorized to contract with a limited number of providers while seeking the lowest charge possible for medical services, but DIR was supposed to determine what adequate provider panels were.  However, DIR never adopted regulations.

In 2007, the Nevada Supreme Court upheld NRS 616C.090, the law that requires an injured worker to choose a doctor from the insurer’s MCO provider list, even if that meant the injured worker had to change doctors whenever the MCO’s provider list changed.   The court stated in Valdez v. EICON, 162 P.3d 148 (Nev. 2007) that while the right to receive medical treatment is a statutory right, limits on physician choice is not.  Instead, the physician choice law is a procedural mechanism for managing the workers’ compensation system.

In 2009, the legislature clarified that an injured worker could make an alternative choice of doctor from the insurer’s provider list within the first 90 days of the claim.  It also provided that the insurer should give a specific reason for denying any requests to change doctors after 90 days.  Insurers and TPA’s were also required to send a DIR-approved notice regarding the law on choice of physicians to injured workers.  The provider list is available to an injured worker within 3 working days if the request for the list is in writing.  This remains the law today. 

B.     Why the Law Should Be Changed

Allowing insurers, self-insureds, and their third-party administrators to require that injured workers treat only with doctors on their exclusive provider lists is unfair to injured workers and to physicians.  In order to get on an exclusive provider list and stay on it, a physician must agree to accept fees for services that are less than what the Nevada fee schedule provides as reasonable and customary.  These exclusive provider lists change at the whim of the insurer or its TPA, depending on whether the insurer or its TPA likes the way the physician is diagnosing injuries, providing care, and is releasing the injured worker to  full duty or is stating that there isn’t a likely ratable impairment.   The quality of care to the patient is compromised by undue pressure on physicians to satisfy the insurer’s cost-cutting measures and early claim closure practices.  It isn’t unusual for an injured worker to report that his physician told him he couldn’t request more physical therapy because it would anger the insurance company, or that his physician told him the insurer wouldn’t allow him to take the patient off work. 

Under the current law, the injured worker only has an absolute right to change doctors to another on the particular insurer or TPA’s provider list within the first 90 days of the claim.   After 90 days, the adjuster can deny the request to change doctors.   Although the law requires the adjuster to have a valid reason for denying these requests, adjusters routinely deny request for a new doctor after 90 days.   One of the most significant problems with medical treatment under a workers’ compensation claim is the length of time it takes for an adjuster to authorize diagnostics and specialty consultations.  The claim may be 4 months old, for example, before the adjuster authorizes an MRI and schedules the worker with an orthopedic physician after the clinic doctor has been requesting this for 3 months.  If the injured worker doesn’t like the orthopedic surgeon the adjuster chooses to see him, and wants a consultation with another one, the adjuster may deny the request.  It then takes time to appeal this denial.   An injured worker ought to be able to choose which doctor will perform a surgery on her. 

It is unfair to have a law requiring that injured workers treat only with the insurer’s exclusive medical providers, while insurers often rely on opinions from physicians who are not on their provider lists to deny surgeries and to deny other treatment recommended by the authorized treating doctor.  Utilization review doctors aren’t on insurers’ provider lists, but these are the doctors the insurers rely on when an insurer doesn’t agree with the treatment recommendation of their own provider physicians.

Amending the law so that the injured worker can choose as her physician any doctor who is in good standing on a provider list maintained by the DIR, whose doctor agrees to accept the Nevada fee schedule, would be a fair way of ensuring adequate medical care at uniform and reasonable costs.   DIR would have the authority to remove any doctors from the panel for good cause, thereby addressing any concerns the insurers or injured workers might have about doctors who are disciplined,  or doctors who aren’t following regulations on how to treat injured workers.

 The historical reason for adopting managed care with provider lists controlled by insurers was to avert a supposed financial crisis facing the state-run SIIS.  That reason is no longer valid.   The DIR is in the process of reviewing its fee schedule so that it is reasonable and in step with customary medical charges.   Doctors who want to be on a DIR-controlled panel of providers can easily be educated as to what the law requires of doctors who treat injured workers.  Good doctors who refuse to accept less than what the fee schedule provides can again treat injured workers, and no doctors will feel pressured by insurers to adjust patient care decisions just to remain on an exclusive provider lists. 

Thank you to Ray Badger for help with the history.

--Written by Virginia Hunt, Hunt Law Office