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

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.

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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.

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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.

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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.

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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.

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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.

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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

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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. 

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