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

Nevadans have  been convinced over the years that there are many workers who try to take advantage of the system, either by filing false claims or by prolonging their time off work, or by collecting undeserved permanent partial disability awards.   What the public in Nevada rarely  hears or reads about however, are the employers caught committing  workers' compensation fraud, or the insurers who intentionally fail to pay legitimate claims.   This type of fraud may be far more prevalent than fraud by employees. 

In October, 2011, a national, non-profit group of mostly claimants' attorneys, the Workers Injury Law and Advocacy Group  (WILG), published a paper entitled "Employer and Insurer Fraud:  Boosting Bottom Line profits at the Expense of Workers and Society".   The premise of the report is that workers' comp insurers and their administrators have successfully misinformed the public and elected lawmakers that employee fraud costs the insurance industry more money than employer or insurer fraud in uncollected taxes and uncollected premiums.   WILG states that the insurance industry writes or funds most of the reports on workers' comp fraud, and therefore wants the public to believe that injured worker fraud is rampant.  Insurers are able to charge higher premiums  and advocate for legislative changes to reduce compensation benefits to injured workers if the public is convinced that injured workers are defrauding the system. 

WILG states that the actual statistics show that both employer and insurer fraud are a far greater problem, involving much larger sums of money, than fraud by injured workers . The statistics on the number of employers who are caught misclassifying employees to pay a lower premium or to avoid paying a premium at all are usually based on employer audits conducted by state agencies that oversee each state's workers' compensation system.   Less than 2% of Nevada employers were audited in Nevada in 2010 according the WILG report.

In an effort to obtain unbiased information on whether employer or employee fraud is the greater problem in Nevada, I contacted Jennifer Lopez, Public Information Officer, of the Nevada Attorney General's Office.   I asked Ms. Lopez for figures on injured workers who were prosecuted for fraud, and statistics on employers who were prosecuted for under-reporting premiums or misclassifying employees. The Nevada Attorney General's Office is statutorily responsible for prosecuting both injured worker fraud and employer fraud under the Nevada Industrial Insurance Act. 

Ms. Lopez explained that in order to prove injured worker fraud, it is more difficult for a prosecutor to prove beyond a reasonable doubt that the employee criminally intended to cheat the insurer or self-insured employer of undeserved benefits.  For fiscal year 2011 (7/1/10 through 6/30/11), only 19 of the 93 cases that were investigated were prosecuted. In contrast,  during fiscal year 2011, the Nevada Attorney General's Office opened 246 employer cases for investigation, and prosecuted 142 of those employers. 

Ms. Lopez noted that employer cases are usually misdemeanor offenses that involve less than $250 pertaining to employee misclassification or under-reporting of payroll.  She emphasized  that it is easier to prove employer fraud using the national insurance database information.   Ms. Lopez did not elaborate on how many employer cases involved misdemeanors versus felonies.

Given the different standards of proof applicable to prosecuting employee fraud versus employer fraud,  I'm not reaching any conclusions as to which type of fraud is the greater problem in Nevada based only on statistics from the Nevada A. G.'s  Office on the the number of each cases prosecuted.  

As I was gathering this information from the Nevada AG's Office and looking at various reports from both insurance industry groups and injured worker advocacy groups, I read a recent  Fox News 5  article about the Nevada AG's prosecution of a Maryland woman for workers' compensation fraud in Nevada.   Nevada Attorney General Catherine Cortez Masto was quoted as saying, "Workers' compensation fraud is insidious.  It quietly drives up the cost of coverage, a bill that nearly every employer in every sector will have to foot, " said Attorney General Masto.  "My office will continue to aggressively prosecute these cases." 

I don't think the statistics from Attorney General Masto's office support her comment that workers' compensation fraud in Nevada, at least by injured workers, is insidious.  Over 58,000 claims were filed in fiscal year 2009 according to Nevada's DIR Research and Analysis Supervisor, and the  U.S. Bureau of Labor's website shows that 42,300 Nevada claims were filed in fiscal year 2010.  If less than 100 cases of possible fraud by employees are referred to the Nevada Attorney General's Office each year, and less than 20% of those cases are prosecuted, I don't know what information Ms. Masto was relying upon.  

It makes for more interesting reading in the media to hear about someone getting caught red-handed on surveillance video faking an injury than it is to read about an employer not paying premiums on undocumented workers,  or employers claiming that workers are independent contractors when they are really employees.  I think it is unfortunate that we don't have a true picture of the extent to which employee or employer fraud costs all Nevadans.  Exaggerating what information we do have doesn't help.

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I've had a couple clients referred by local neurosurgeons to a particular physical therapist who is certified in  the McKenzie's Protocol, and I decided to investigate this personally.  I've got  chronic neck pain from various horse-related accidents over the years, and am always searching for ways to increase my range of motion.  I also want to decrease the pain and stiffness that extends from neck into the right scapula.  Being able to turn my neck better is essential for my riding, as well as  my driving. 

I know that long hours seated in front of the computer adds to the problem, and the older I get, the more important it is to get up every half hour, stretch and walk around a bit.  But stretching on my own, and even the addition of a weekly yoga class hasn't been enough since I re-injured my neck in Ireland during an unlucky fall from a horse.  I also added a massage from a highly trained masseuse once a month to keep my back and neck more mobile and comfortable, but that also is not enough.

I made an appointment with the certified McKenzie evaluator and therapist two weeks ago, and  I had a second appointment last  week.  The McKenzie Method  (sometimes called the McKenzie Protocol is described in detail in several books written by founder Robin McKenzie back in the early 1980's.    Robin McKenzie's is a physiotherapist from New  Zealand who developed his own treatment methods for spinal disorders.  I purchased two of his books, Treat Your Own Neck, and  7 Steps to a Pain-Free Life: How to Rapidly Relieve Back and Neck Pain.   These  books, available at Amazon.com, are easy to read.  If you need to borrow my copies and promise to return them, call my office and ask  my assistant to send me reminders to bring the book to the office for you.

The first book states that it is meant for people with straightforward recurring mechanical problems, and that self-treatment exercises taught by a certified therapist are the key to maintaining neck pain.  I do think it is important to invest in at least a couple of sessions with a certified therapist to make sure that the exercises are safe and right for you.  The therapist will also want your doctor to prescribe this particular therapy for you (and to get your insurance to cover the sessions if you no longer have an open claim.)

McKenzie emphasizes that there are two types of stresses that can occur to cause neck pain:  1) an accident that results in overstretching of the ligaments and other soft tissue that hold the cervical vertebra together from an outside force, and 2) overstretching caused by postural stresses that place less severe strains on the neck over longer time periods.  It is this second type of stress, the one that we exert on our self that can be self-treated for the prevention of neck pain. 

Examples of the exercises in the book prescribed for me by the McKenzie therapist include retracting the neck back into the chin, extending the neck backwards, side bending of the neck, and laying on an examining table with the neck extended off the edge of the table.    While the book walks the reader through the exercises, and they are very simple, I strongly advise that you first have a certified McKenzie therapist walk you through them.

After the first week of doing neck retraction exercises, I had increased neck pain and even less mobility from placing my neck in very different positions  After the second session, the neck pain was improved, and I had a little less pain, but range of motion was still very limited.   Then, I miraculously got better about remembering to do the exercises the prescribed  5 times a day.  I also became more aware of my posture as I sat at my computer.  I also remembered to pick up a new bedside lamp at Home Depot so that I had better light as I continued my bad habit of reading in bed late at night.  In other words, I started to take some personal responsibility for making my neck better instead of simply whining about it.

Today, I'm back at work, in front of the computer, but I don't have pain extending into the right shoulder and scapula for the first time in months.  The neck pain is lessened, although I still hear a lot of snap,crackle and pop when I go through the range of motion checks.   Whether the improvement is due to these particular exercises, my remembering to actually do some stretching and exercises, or a wonderful, relaxing Christmas with my friends and family, I really don't know.   But, I intend to give these exercises a good try, and will return to see the therapist tomorrow. 

I remain optimistic that this therapy will also keep my clients off  the operating table.  The number of injured workers who tell me  they "want to be fixed" by a surgery  concerns me.  While I'm not a doctor, I see many people with chronic neck and back pain that might be able to significantly help themselves manage their pain with some guided, concerted effort on their part .  Exercises require consistent effort (although these are very easy ones).  This isn't a quick fix, but it might be a huge relief once I train myself to do them daily.   I will keep you posted.  Feel free to post a comment if you have experience with the McKenzie Method exercises. 

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It's that time of year when I'm feeling festive.  I am again offering five $50 gift cards to the first five people who post a positive message or helpful tip for other injured workers on myFacebook wall page.  You don't have to be a client to qualify.  Simply show my staff some documentation that you are a Nevada injured worker when you pick up your gift card from my office.  Please call ahead to verify that you have won.  If you aren't among the first five to write a post, but I think your post is particularly encouraging or helpful to other injured workers, you might get a gift card, too.

Secondly, I am again offering reduced attorney fees for any new clients who sign with me between now and the new year.  I will reduce my fee by 10% of what I would ordinarily charge on your particular case.  For example, if you are a union member and hire me now, I will reduce my already reduced 25% contingency fee to 22.5% of any permanent partial disability award.   As always, an initial consultation with me is free, and I will give you (as well as anyone else who would like one), my guide to Nevada workers compensation law for injured workers.

I will be staying in town over the holidays, riding my horse, writing blog posts, working on client files, and meeting new clients.  I am also looking forward to spending time with my two boys who will be home from SDSU and Brown.  I will check emails frequently even though we will have days when the office is officially closed.  Happy Holidays.   Virginia, Vanessa, Norma and Sue.

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According to the U.S. Bureau of Labor Statistics, in 2010, about a fifth of all  workplace fatalities in Nevada were caused by a worker falling. Almost every serious fall injury  I've handled in the Nevada work comp arena in the past fifteen years was caused  either by the employer's obvious  failure to follow safe work practices, or the employee's own unsafe actions.    

Contrary to what most non-attorneys think, whose fault caused the injured worker to fall isn't  supposed to determine whether a workers' compensation claim is accepted or denied.  However, a recent  2011 unpublished decision from the Nevada Supreme Court has me worried that the current justices want to allow employers and insurers to use  fault by the injured worker to deny claims.  I hope that I'm wrong, and that  the Nevada Supreme Court's Order of Reversal and Remand in Fitzgerald's Casino/Hotel  v. Mogg, No. 55818 (11/18/11) isn't  a major attitude shift against injured workers.

Under Nevada work comp law, injured workers are entitled to medical care, benefits payable at two-thirds of their wages when off work, an award for most permanent injuries, retraining if necessary, and lifetime reopening rights for serious injuries.  Nevada law states in NRS 616C.150(1) that a claim is compensable if the employee's accident and resulting injuries arise out of and in the course and scope of the employment.

It has always been a key component to Nevada's workers compensation system that in exchange for purchasing workers' comp insurance, an employer cannot be sued for work-related injuries  to employees, even if the employer's negligence causes the injury.  The trade-off for the employee not being able to sue the  employer is the  employee's  entitlement to benefits,  even if the employee causes his own accident.  The underlying premise behind these trade-offs is that the statutory  benefits for injured workers will be borne by industrial insurance purchased by employers,  the cost of which will  ultimately be spread  to consumers and society.  This is called the exclusive remedy doctrine, and is codified at NRS 616A.020.

Nevada law  states that because workers cannot sue their employers who comply with the law by purchasing workers' comp insurance, the employer cannot assert common law defenses to a a claim.  In other words, the employer cannot defeat an employee's worker's comp claim by arguing that the employee was contributory negligent in causing his own accident and injuries.  Two notable exceptions are laws that exclude self-inflicted injuries, and  injuries caused by the employee's intoxication. Otherwise, an employee's own fault in causing his accident is not  supposed to be a valid reason to deny his claim. 

The justices discussion in the Fitzgerald v. Mogg case however, comes dangerously close to introducing the idea that an employee's simple failure to follow an unwritten rule at work  can be used to deny his claim.  Mogg was employed as a security officer who monitored the surveillance cameras in the casino's  eye in the sky.  When he went to put his feet up on a desk while working, his chair fell over and he was injured.  An appeals officer ruled that the injury was compensablle, but the Nevada Supreme Court reversed and remanded the case back to the appeals officer  for further findings.

The court referenced a case they had recently decided  involving a casino employee's fall on back stairs to an  employee break room.     In Rio All Suite Hotel v. Phillips, 126 Nev. Adv. Op. 34 (2010),  a poker dealer  twisted her ankle for some unknown reason while descending stairs to the employee break room.   The Court applied an increased risk test  to this unexplained fall to determine whether the injury "arose out of " employment.   The Court noted that the dealer was required to use these stairs more frequently than  the general public, and that they were the only stairs to the employee break room. The dealer's risk of injury was therefore greater than the general public risk of injury on these particular stairs, so the claim was considered in the course and scope of employment.

In Mogg's case, the appeals officer neglected to make findings that Mogg was at increased risk of falling at work from a chair that wasn't defective.  If Mogg wasn't put at increased risk (due to long hours of watching security cameras), then his claim would not be considered  work-related.

The court also wanted the appeals officer to make findings whether Mogg's injury came within the  the personal comfort doctrine.   That legal theory says that an injury is work-related if it happens when an employee is injured while  engaging in reasonable personal comfort activities,  such as going to the restroom.  Mogg's employer didn't have a written policy against employees charged with viewing security monitors all day from  putting their feet on desks, but the employer got statements from other employees that the employer had  an implied prohibition against putting feet on desks.  The employer argued that putting feet on a desk while working was unreasonable, and took the activity outside the course and scope of employment.  The court  didn't decide that question, and wanted the appeals officer to first clarify whether the employer had an implied prohibition about putting feet on a desks.  If so, Mogg wouldn't get any medical care or benefits because his conduct was outside the  personal comfort doctrine and therefore not within the course and scope of employment.

Fortunately,  the court's order is not an official published decision.  The order  cannot be cited as precedent by appeals officers or district court judges as an interpretation of Nevada law.  However, it does tell us how the justices are thinking about injured workers in Nevada.  The court's discussion has me worried that the court is dangerously close to judicially legislating that employers can deny claims if they can show that an employee was doing something that the employer impliedly prohibited.

Almost all large employers have written and implied safety rules.  If  employers can show that an employee  is doing his job in such a way as to violate a written or an implied safety rule,  almost every claim can be denied as being outside the course and scope of employment   Employers can easily get written statements from supervisors stating that there are implied rules against doing anything unsafe.   What employer won't come up with an implied prohibition against whatever conduct causes their  employees to get injured?  I'm not sure the court completely considered the effect of allowing employers to argue that there are unwritten, implied rules against innocuous, but slightly unsafe conduct by employees that might cause an accident.

Remember that the flip side of the exclusive remedy rule is that employers cannot be sued for work-related injuries, even if the accident is caused by the employer's violation of safety rules.  Employees  who are seriously injured by their employers' fault are only entitled to the specific benefits available to all injured workers under the Nevada Industrial Insurance Act (NRS 616).   The employee cannot sue his employer for any additional money by showing that the  employer was at fault, or that the employer violated safety regulations.

If the court were to officially adopt the analysis it uses in the recent Order in the Fitzgerald v. Mogg case, then employers will be able to circumvent the exclusive remedy rule by showing that the  employee was at  fault for the accident and that the claim should be denied.  The court doesn't come right out and use the word "fault", but that is what the court is really talking about when it refers to unreasonable conduct that is outside the course and scope of employment.  It isn't fair if the court is not likely to employ the same legal analysis when an employee is injured by the fault of  an employer who insists that the employee work under unsafe conditions.   Will the court find that unsafe employer-required activity that causes an accident is outside the course and scope of an injured worker's  employment so as to allow the employee to sue the employer?  I doubt it. The court is more likely to tell an injured  employees that they are limited to workers' comp benefits even if the employer insisted they do some unreasonable and unsafe activity at work that caused the accident.

The  court's decision last year in Rio v. Phillips is  more helpful to employees who have injures from unexplained falls than two older cases often relied on by insurers to deny slip and fall claims.  See Mitchell v. Clark County, 121 Nev. Adv. 21 (2003), and Rio  Suite Hotel v. Gorsky, 113 Nev. 600, 939 P.2d 1043 (1997).    Those two older cases were not overruled in the recent Phillips case, however, and injured workers must still prove more than that  their injury happened at  work.  Insurers frequently deny cases involving unexplained falls at work, or falls where the employee cannot remember exactly what happened before he or she fell.  Many of those cases are actually winnable cases when appealed correctly.  An injured worker shouldn't give up on a denied claim caused by a fall at work  without an experienced legal opinion.  

As I first mentioned, most serious fall injuries can be easily related to either the fault of the employer or fault of the employee.  There really aren't that many unexplained fall, so   I think the court's discussion in the unpublished Fitzgerald v. Mogg case is more significant than the published decision in the Rio v. Phillips  case.    The Fitzgerald v. Mogg analysis is unfair to  injured workers because it will  allow employers to use the employee's own fault  (unreasonable conduct) as a defense to a claim.  This is a fundamental change to Nevada workers' compensation law, and should instead come the Nevada legislature, if at all.

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Just before Thanksgiving, the Nevada Supreme Court published a turkey of a decision that robs injured workers of disability award money.  In Public Agency Compensation Trust v. Blake, 127 Nev. Adv. Op. 77 (2011), the court invalidated a long-standing  DIR regulation that addressed how rating doctors are to account for a prior PPD award for a re injured body part where the prior rating was done under a different edition of the AMA Guides to Evaluation of Permanent Impairment.  

Nevada law currently requires that rating doctors use the 5th edition of the AMA Guides, even though the AMA has published a 6th edition.  This law was championed by advocates and lawyers for injured workers, as the 5th edition generally results in a higher rating for many spinal injuries than other editions of the AMA Guides.

Blake had four work injuries to his back in the 1980's and  1990's, and was awarded a 14% permanent partial disability award  (PPD) at his last prior rating in 1995 under the 2nd edition of AMA Guides. (The law in 1995 required rating doctors to use the 2nd edition.)   Blake had a fifth back injury at work in 2004.  He was rated again in 2004 when the 5th edition of the AMA Guides was required in Nevada. The rating doctor properly followed the DIR regulation that told the rating doctor  to subtract the earlier awarded 14%.   The employer appealed, arguing that the regulation wasn't fair to employers, because the current 5th edition of the AMA Guides would rate the old injury at a greater percentage.  The justices agreed, and held that Blake's total impairment should be reduced by what  the old injury would rate under the 5th edition.

This decision is wrong in my opinion,  because Blake had his award reduced by a percentage of impairment he never actually received.  He was paid in the past based on 14% impairment.  (The payment amount is determined by using the percentage of impairment, the injured worker's average monthly wage, and the injured worker's age when he is rated.)   The court said that instead of subtracting 14% from Blake's current total impairment of 40%, it would allow the insurer to subtract subtract a 23% for the old back injuries by re-rating the old injuries under the 5th edition.  The net result to Blake was that he lost 9% impairment under this decision.  As the court's decision does not tell us Blake's age and how much money he was earning when he was injured, we can only guess how much money the 9% was in his case.  For some injured workers, a 9% loss could mean a loss of up to $45,000.   

The  court reasoned that the law provides that  the employer  should  only pay for any impairment  related to the current injury.  The court had to invalidate a regulation that had been on Nevada's books for years, and used by DIR and rating doctors when faced with multiple ratings done under different editions of the AMA Guides. Blake, unfortunately, will never be compensated more for his old injury by this re-rating of his old injuries under the  current edition of the AMA Guides.   Only the employer and insurer can use a current edition of the AMA Guides by reducing an injured worker's net impairment percentage following a recent injury.  

The ink wasn't dry on this decision when DIR wrote in its Winter newsletter that it will no longer enforce the invalidated regulation when it reviews all impairment evaluations.  DIR only reviews about 10% of the approximately 450 impairment evaluations that are done each month on a statewide basis. This is a confidential review, and claimants should not rely on DIR to correct any rating errors.   Instead,  injured employees must appeal the insurer's offer based on the incorrect rating and obtain a second PPD evaluation with a physician assigned from the rotating list.  As the appeals process takes time, and a second rating costs $683 currently,  first ask an experienced workers' compensation attorney whether the first rating looks wrong.  Insurers are often quick  to apportion (subtract from) an injured worker's PPD if there has been a prior injury or rating.   You can be sure that  employers and insurers will slash many more PPD awards now that the Nevada Supreme Court has provided encouragement by this unfavorable decision.

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