Great Explanation of CRPS
See attached video for a great explanation of how someone with CRPS (complex regional pain syndrome) experiences pain.
http://www.ted.com/talks/elliot_krane_the_mystery_of_chronic_pain.html
After the Appeals Hearing Is Too Late
I receive many calls from injured workers who want me to take their case after they lost their case at the appeals officer level. Unfortunately, neither I, nor any of the more experienced workers' compensation attorneys, will agree to take over a case after the appeals officer hearing. Here's why you won't be able to find a lawyer to take your case on a petition for judicial review to the district court level, or why your NAIW attorney might refuses to to file a petition after representing you at the appeals officer hearing.
Almost all contested work comp cases involving denied claims depend on whether the appeals officer thinks the injured worker is truthful about how an accident or injury happened. Many other appealed cases involve medical care, and they depend on whether the injured worker has favorable medical reporting from doctors. Only a very few cases involve purely legal issues that only lawyers find interesting. Only those few cases involving just legal questions can be reversed by a district court judge.
Nevada law requires that district court judges accept the appeals officer's findings about whether you or your witnesses were believable or not. The district court must also accept an appeals officer's decision based on which doctors' opinions are more convincing. That means that the last real opportunity an injured worker has to win a case is when the case is heard by the appeals officer. If your attorney can't find a favorable witness, or doesn't realize the appeals officer thinks your doctor didn't adequately write about your need for more medical care, or you weren't prepared for the tough questions the insurer's attorney asked you on cross-examination, there is little that can be done after the hearing is over.
A district court judge (with rare exceptions) is not supposed to accept new evidence. You can't argue to the judge that you didn't have money to go see an independent doctor to get a new report until after the appeals officer hearing. Nor can you argue that you didn't expect the employer's witnesses to lie and therefore didn't bring in your own witnesses to tell the appeals officer what really happened on the day you were injured. You, and your attorney, must be fully prepared to present the best possible case when your case is decided by the appeals officer. For many injured workers, that means relying on their appointed NAIW attorney.
NAIW attorneys are excellent attorneys who take their jobs very seriously. When I was an appeals officer I had to decide many cases presented by NAIW attorneys, and when I was the attorney for the SIIS, the NAIW was trying cases against me. I therefore have nothing bad to say about NAIW attorneys. If anything, they are overworked and underpaid for what they do. I simply want to caution injured workers that if they feel they want a different attorney than their assigned one because their case requires more work than the typical case for example, they need to shop around before the case goes to the appeals officer hearing. A district court judge will not give you another chance to present your case because you didn't like your assigned NAIW attorney or don't think he or she had enough time to prepare your case.
Uninsured Employers
The penalties for employers who fail to purchase workers' compensation insurance are high if they get caught, but as the economy continues to tank, more employers are going bare. If you are injured on the job and then discover that your employer doesn't have a workers' compensation policy in effect, do the following:
1. Complete a Claim for Compensation form (C-4 form) the same way you would for an insured work-related injury at a medical clinic or emergency room if necessary.
2. If you do not have a private attorney to help you, go to the Division of Industrial Relations to complete the forms to elect to receive workers compensation benefits under the Uninsured Employers' Claim Account. The DIR will contact your employer and decide whether or not you were in fact an employee that should have been insured. That is the only issue DIR decides. If DIR decides that you satisfy the legal definition of employee, then DIR will assign the claim to a third-party administrator to handle the claim. If you were paid cash only and there is no documentary proof that you were an employee on the day you were injured, you may have difficulty showing that you were an employee. The address for the DIR in Las Vegas is 1301 N. Green Valley Parkway, Ste. 200. Phone is (702) 486-9080.
3. The third-party administrator who will be handling uninsured claims for the next three years until June 2013 is Sierra Nevada Administrators, Inc. That company will handle the assigned claim as if it were an insured claim, first making a determination whether it should be accepted or denied. If it is accepted, then the benefits payable will be the same as if the employer had insurance. Because the claim must first go to DIR to decide whether or not you are an employee, it takes much longer to get a claim accepted. The injured worker should therefore get the paperwork done quickly at DIR so that benefit checks and medical care aren't delayed.
Signing Off on a Claim
Many injured workers who call me for information about how to reopen their Nevada workers' compensation claim tell me that they regret "signing off on their claim", and that they wish they had kept their claim open for medical care. It is true that when an injured worker signs the paperwork to receive a permanent partial disability award (the PPD award) in a lump sum, the injured worker agrees with the closing of the claim, except for any vocational rehabilitation benefits. However, it is a mistake to think that by not signing for a PPD award in a lump sum, the injured worker can prevent the claim from closing medically.
In order to prevent the claim from closing for medical care, the injured worker must file a request for hearing when the insurer sends a determination letter stating that the claim is closed. Then after filing this appeal on time (70 days after the insurer's letter closing the claim), the injured worker must get a doctor to write that additional medical care is necessary. The insurer would not have closed the claim if the treating physician had not reported that more case isn't necessary.
A hearing officer will not order the insurer to keep the claim open unless the injured worker is able to convince the hearing officer that, contrary to what the treating doctor said, more medical is in fact required. Most hearings officers are not likely to simply take the injured worker's word that more care is necessary. That means that the injured worker will probably have to use private insurance or pay to get a differing medical opinion from another doctor.
The injured worker should come to the hearing prepared, with a copy of the new medical report for the hearings officer and one for the insurer. If the new report is persuasive, the hearings officer may then order the insurer to keep the claim while the insurer schedules a visit to a doctor on the insurer's provider list.
Hope for Chronic Pain Sufferers
Last week, I had lunch with Dr. Mel Pohl, M.D., the Medical Director of Las Vegas Recovery Center, and his Admissions Coordinator, Jackie Pippin. The Las Vegas Recovery Center is a small, private facility that offers a chronic pain recovery program. While most chronic pain management treatment for injured workers involves ongoing prescription pain medication, injections and surgeries, this program focuses on medically detoxifying the individual from all opioids and then treating the physical and emotional pain with an intensive inpatient treatment program. That is followed by outpatient care modeled on twelve-step recovery programs. The program uses an individual, multidisciplinary approach that includes physical therapy, biofeedback, chiropractic, Pilate's, acupuncture, and yoga. Dr. Pohl writes about alternative treatments in his book A Day Without Pain.
Dr. Pohl told me that this isn't a program for every injured worker with chronic pain. He acknowledged that some injured workers are able to use opioid medications without developing dependence and compulsive use behaviors. He also knew that it was very difficult to obtain authorization from industrial insurers for an expensive inpatient treatment for drug dependency caused by a work injury. He and Jackie impressed me as compassionate people who were sincerely committed to finding solutions to how to treat chronic pain, particularly when it also involves addiction to opioid medications.
For more information on the Chronic Pain Recovery Program at the Las Vegas Recovery Center, contact Jackie Pippin at jpippin@centralrecovery.com or (702) 290-6928.
Will You Need Retraining?
If you are seriously hurt on the job, and think that you might not be able to return to your old occupation, you may need to be retrained to do a different kind of work. Under Nevada workers' compensation law, you may qualify for vocational rehabilitation services and benefits if your treating doctor gives you permanent work restrictions that prevent you from returning to your old line of work, and your employer does not offer a permanent light duty job. ( Read more about permanent light duty job offershere.)
If you do qualify for retraining, the adjuster will assign you a vocational rehab counselor to work with you to find a suitable retraining program. While the vocational rehabilitation counselor is not an employee of the insurance company or the TPA managing the claim, the counselor usually has some type of formal or informal contractual relationship with the insurer or TPA. Counselors vary in personality, in their knowledge of the local labor market, and in their awareness of the best vocational schools in the area. Some are better than others about finding the best retraining option for the injured worker while reporting to an insurer who is focused on keeping costs to a minimum.
Unfortunately, not much progress has been made in the past 25 years when it comes to successfuly returning injured workers to the work force according to recent research by the Workers Compensation Research Institute. The current economy, and Las Vegas' staggering unemployment statistics in particular, make it particularly challenging to find retraining programs that will actually result in a job with decent wages for an injured worker starting his or her career over again. However, it can be done, and an injured worker who is willing to put effort into the process can have a successful second career!
Many injured workers are shocked to learn that the voc rehab counselor expects the claimant to do most of the research on retraining options, and that only 60 days is allowed to do this research program. I like for my clients who know they are likely to need retraining, to begin thinking and planning about retraining immediately. While an injured worker won't know how much retraining he or she may be entitled to until after the impairment evaluation, the worker can still get started on researching possible options. An injured worker will only receive an additional 28 days of benefits to look for a job after schools ends. It is therefore crucial that the retraining progam be suited to the individual and that it result in an actual job in the future.
