Nevada Workers' Compensation Law Blog : Nevada Workers' Compensation Lawyer & Attorney : Virginia Hunt Law Firm : Las Vegas Job Injuries & Worker Accidents

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.

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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.

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The Workers' Compensation Section of the Division of Industrial Relations has asked us to spread the word that they are offering a free training session for employees on injured workers' legal rights, how to file a claim, what to do if the employer is uninsured, claims process deadlines, etc. on Wednesday, October 14, 1:30- 3:30 pm at the West Charleston Campus of the College of Southern Nevada, Room D-101.  To make a reservation to attend, or to request special accommodations, please email Terry Simi at  tsimi@business.nv.gov.

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 Work-related traumatic injuries to knees and shoulders are common. These are two of the most complex joints in the body.  If an injured worker is not getting better with physical therapy, reduced activity, and drugs to reduce inflammation, the initial treating physician may then order a MRI to better diagnose injury to the ligaments, tendons, and cartilage. The clinic physician  may also refer the patient to an orthopedic physician.  An injured worker may ask for a specific orthopedic physician on the insurer's provider list. 

Nevada workers in occupations that require extensive kneeling, heavy lifting, squatting and climbing are at risk of  meniscal tears to the knees.  (The menisci are pads of cartilage that act as cushions between the femur and tibia bones, and they help distribute body weight and minimize friction within the knee joint.)  Most meniscal repairs can be done at an out-patient surgical center with an instrument called an arthroscope that creates only small scars.   Recovery time is usually quick, and  if a partial meniscectomy is done, a 1% whole person permanent partial disability award is given.  If you have had a knee surgery on your accepted workers compensation claim and the insurer tries to close your claim without a rating evaluation, you should consult with an attorney right away.

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I am asked so many questions about whether an  injured worker can sue his employer that I have written an explanatory article entitled, "Can I Sue My Employer".  That article is in the Information Center at www.huntlawoffice.com.  I have included the citations to the Nevada Supreme Court  decisions that discuss the exceptions to the exclusive remedy rule. The exclusive remedy rule is used by employers to defeat lawsuits attempted by injured workers who try to sue employers for  their work injuries.  

 NRS 616A.010 and616A.020 are the actual laws that contain the language relied on by employers using the exclusive remedy defence.  Those laws say that injured workers cannot sue their employers for a work-related injury or occupational illness, and that injured workers must instead be  compensated with the benefits provided by the laws that make up our workers' compensation system in Nevada.  However, if the injury is caused by someone other than the employer or a co-employee, the injured worker may also pursue a personal injury action against the person or entity responsible for causing the injury.  The law then becomes very complex in determining who or what is a "co-employee", or an "employer" for purposes of determining whether a personal injury lawsuit can be brought.  In Richards v. Republic Silver State Disposal, 148 P.3d 684 (2006), the Nevada Supreme Court reviews the body of case law on this topic.

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Not every injured worker needs to hire an attorney, but all injured workers should have access to reliable information on the claims process, what benefits are available, and what to do if the insurer is denying benefits.  Insurers are required to give some written information to injured workers, but those written notices are in fine print, are written so that only lawyers can understand them, and are usually not read.  There are many articles written for injured workers in the  Information Center at www.huntlawoffice.com, with links to all of the important Nevada governmental agencies involved in the Nevada workers compensation system.

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