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

Formerly called RSD (reflex sympathetic dystrophy),  CRPS ( complex regional pain syndrome)  is a  type of pain  thought to be caused by an injury or abnormality in the nerve pathway.  It typically causes a  burning sensation, and hypersensitivity to touch  somewhere in the arms or legs.   If not treated early, it may spread from one limb to another.  This diagnosis  strikes terror in the hearts of adjusters, because  the length of time the claimant will need treatment is unpredictable.  

CRPS has always been a controversial medical diagnosis, with the AMA Guides authors taking the view that scientifically, there is no discernable cause of this pain.  The doctors who contribute to the Guides Newsletters suggest that there is an overriding psychological component to CRPS as opposed to an identifiable, underlying  physical nerve problem.  Essentially, the national doctors who are establishing the rules for rating permanent impairment question whether CRPS is a real health condition or a form of malingering.

 Not a lot has changed over the years as to  how injured workers with the diagnosis of complex regional pain syndrome (CRPS) are treated.  After months of trying to get an accurate diagnose of their pain complaints, the injured worker must then grapple with a component of the workers' compensation medical community' that views CPRS as  a fictional illness that is encouraged by lawyers. 

I am not a doctor, and cannot diagnose anyone with anything.  That said, however, I can say from personal experience that I have had, and continue to have, clients who are hard-working, sane people who have this dreadful, very real pain disorder.  I have observed that the sooner the injured worker is assigned to a physician who is experienced in treating CPRS, the better the chances for  a successful reduction in pain and return to full function. For more information on diagnosis and treatment, please review theNational Institute of Neurological Disorders and Stroke  fact sheet. 

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1. File the request for hearing on time at the right place.  Each time your adjuster sends a letter regarding your medical care or your benefits,  appeal rights  are included at the end of that letter.  A request for hearing form should be included  so that you may file an appeal if you disagree with the letter.  You have only 70 days to return that request for hearing form to the Hearings Division in either Carson City or Las Office.  Do not send the request for hearing form to the adjuster instead of to the Hearings Office address.

2. Educate yourself on the issue you are appealing.   If you decide to  handle the appeal yourself, and do not want to hire a private attorney to represent you, there is information posted by the Hearings Office on how to represent yourself.  The Nevada Attorney for Injured Workers (NAIW) also has a handout you may pick up at their office at 2200 S. Rancho Drive, Las Vegas.  I also have a detailed and  free Injured Workers' Guide to Nevada Workers' Compensation Law.  Stop by my office at 1945 E. Warm Springs Road,  or call (702) 699-5336, and we will mail one to you.  Also check the categories to the left on this blog.  I have written blog posts on the most common problems facing injured workers.   The complete laws and regulations that apply to claims are on the  DIR  website.   Also, check the articles I've written for the  Information Center on my website. 

3 Get documents that support your position. The biggest mistake people make when representing themselves is not having documentation that supports their position.  For example, if you are contesting the insurer's determination to award you a 3% PPD, you need to show that the 3% is wrong.  You might do that by referencing the AMA Guides, or by asking a rating doctor for a second opinion.  Or, if you are fighting the  insurer's determination to close your claim, you will need a report from another physician that says that you need more medical care.  Otherwise, the hearings officer only has the treating doctor's opinion that you don't need more care.   You can't simply show up and complain.  You need written proof why your position is the correct one.

4. Attend the hearing in person or by phone.   You must  be present at the hearing in person if you don't have a lawyer there to argue your position, or you must make pre-arrangements to give telephone testimony.  If you don't attend, your appeal will be dismissed.  You can't skip this step and later decide to get an attorney to straighten it all out.  There is no free legal representation at this level.  The NAIW may only provide an attorney to represent you at the next level of appeals if you lose, or if you win and the insurer files an appeal.

5. Carefully decide whether you should be representing yourself.  Many attorneys will answer questions and give you valuable information about the legal issue you want to appeal at a free initial meeting.  If the issue you are appealing is very important, such as the denial of your claim, you may be better off hiring an attorney to represent you before this hearing.   The insurer has a right to appeal a hearings officer's decision, so you may have to get either an appointed NAIW attorney, or a private attorney to represent you at the next level anyway.  If you think you will need help throughout your claim with getting the right medical treatment, getting your benefits paid correctly and on time, or if you are likely to have a permanent impairment, or if you will need retraining, then you may be smart to hire a private attorney now. The primary difference between the NAIW and a private attorney is that the NAIW only represents injured workers on a specific issue at the appeals officer level.  A good private attorney should be involved in all aspects of your claim and provide an ongoing  valuable service that justifies the fee that will be paid from any settlement.    The NAIW reported in the DIR's Spring 2011 newsletter that  in the last six months of 2010, they opened  755 new appeals cases, spread among 6 attorneys in the north, and 8 attorneys in their Las Vegas office.  Over 30% of the cases filed at the appeals officer level are assigned to one of the 8 NAIW attorneys in Las Vegas. In comparison, private attorneys may accept or decline to represent a new client if they are too busy or don't want the case for other reasons. 

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People who contact me after getting hurt as a result of an unsafe work condition ask about suing their employer. In this lousy economy many employers are trying to save a buck by not following safety procedures to protect employees from foreseeable accidents. 

The worker who ends up hurt due to an obvious unsafe work condition or practice feels angry toward his employer.  However, the law is the same whether someone is angry or not.  It's a shock for the injured worker to learn that his employer cannot be sued  for the harm caused by the employer's failure to correct an unsafe work condition, even if the employer has been asked to correct it and knows that an accident is likely to happen.  The reason for that has to do with the underlying concept behind workers' compensation laws.

If an injury arises out of and in the course and scope of employment, the injured worker has the right to file a workers' compensation claim and the right to obtain the benefits described in the Nevada Industrial Insurance Act (NRS Chapters 616A-D).  As the injured worker discovers, those benefits only partially compensate him for his lost wages and loss of earning potential.  No matter how negligent, uncaring, or stupid an employer is about work place safety, if the employer has purchased workers' comp insurance, the employer is legally protected from a direct lawsuit by the injured employee.  This is called exclusive remedy.

What an injured employee should do is maximize his workers' comp benefits by educating himself about  all benefits that are available.  The employee may also take action before or after he is injured by filing an anonymous complaint with Nevada OSHA to report unsafe work conditions. An OSHA inspector may inspect a workplace, fine the employer, and order corrective action. However, no additional benefits or compensation will be paid to the injured worker if a violation is found.

Why has the Nevada legislature made it impossible for injured workers to sue negligent employers who cause work injuries with their unsafe work conditions?  The reason is mostly historical.  When workers compensation laws were adopted by the various states at the turn of the century, they were a great improvement for  most workers over  trying to sue their employer under the common law.  The new laws provided immediate medical care and wage loss replacement for all workers regardless of who was at fault for the accident.   The idea was that society would  protect all injured workers to some extent and spread the cost of industrial  insurance on to all consumers through the employers.

This month is the 100th anniversary of the Triangle Shirtwaist Fire that killed 146 people in a factory that had had several  fires.  This tragic fire in a Manhattan sweat shop prompted many of the early reforms to protect workers from unsafe work conditions.The reforms lead to much better working conditions, but  one hundred years later,  employers still don't always do the safe and right thing to protect their employees from harm.

Are the reasons for not being able to sue the employer still valid in today's world?   Or, is it time to make an inroad into the exclusive remedy protection afforded to employers?  

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I have a client who recently reopened his workers' compensation claim with Employers Insurance of Nevada so that he could have a back surgery for his worsened spinal  injury.  I sent over the physician progress report from  his surgeon, taking him off work from the date of the surgical procedure until the day of the next follow up office visit with the doctor. Employers wrote back that his request for payment of  temporary total disability benefits was denied.  The reason was that my client had been laid off and was out of work at the time he requested reopening of his claim.

The adjuster for Employers told me that she was relying on NRS 616C.390 to support the denial.  That law says that if a claim is reopened, an injured worker is not entitled to TTD benefits if, before his claim was reopened, he ..."retired, or otherwise voluntarily removed himself from the work force for reasons unrelated to the in jury."  I asked the adjuster whether she was joking, or whether Employers actually considered the 14% of Nevada workers who are unemployed to be happily enjoying  their "voluntary retirement".  She replied that an appeals officer in the northern part of the state had interpreted the law to preclude laid off injured workers from receiving TTD benefits, and that Employers was going to  point to that decision and deny benefits until told not to do that.

I've filed an appeal on behalf of my client to get a decision from a hearings officer, and then probably an appeals officer, in Las Vegas.  The decisions from one appeals officers are not binding, or precedent, on other appeals officers.   For those of you who are currently laid off from work, do you consider yourself "voluntarily retired?"  Le me hear from you on this issue.

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Under Nevada workers' comp law, the burden of proof is on the injured worker to show that it is more probable than not that the injury or claimed occupational disease is work-related.  This makes it very difficult to get a claim accepted if your doctor isn't certain that your  injury or illness should be treated under a comp claim.  Your doctor may think that you should instead be getting treatment using your health insurance, assuming you still  have health insurance.

Remember, it is the initial treating doctor at the first clinic that fills out the bottom half of the C-4 Claim for Compensation form.  The doctor must check a box "yes" or "no" that the injury is directly work-related. If the doctor checks the "no" box, or puts a question mark, the insurer or its third-party administrator (TPA) is sure to deny the claim.

You may be sure that your work activity over time is causing your need for medical care, but a hearings or appeals officer will not order your claim accepted based only on your testimony about how you feel.  If your job involves repetitive motions, such as dealing cards, heavy cleaning, constant lifting, bending, or other strenuous physical work, you may be right that you have a compensable claim under existing Nevada statutes and case law. However, you still may have difficulty convincing your doctor that you are entitled to benefits on a  workers' compensation claim, and you need a supporting medical opinion.

When doctors consider whether your injury or illness is work related, they focus on whether you have pre-existing problems, whether there are other equally likely causes of your condition, and whether your need for care might be related to the normal aging process. The doctor must then decide whether your claim should be supported, and  most  doctors form their opinion without the benefit of information about Nevada law.

The law in Nevada is confusing regarding work activities that involve an aggravation of a pre-existing condition.   Keep in mind that doctors aren't experienced workers' compensation lawyers. You will at least want to get a second medical opinion if your initial treating doctor doesn't report that it is more probable than not that your injury or illness is work related. 

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