Drug and Alcohol Intoxication Not Always a Losing Case
A blog post by Thomas A. Robinson for Lexis Nexis discusses a recent case involving Utah's law that presumes that an injured worker is intoxicated and that the accident was caused by intoxication if any illicit drug or alcohol is found in the injured worker after the accident. The case concerns a construction worker who stepped off the edge of decking at a construction project and fell fourteen feet to concrete below. A urine sample taken from him at the hospital on the day of the accident tested positive for cocaine metabolites. The construction worker won the appeal on his denied claim by subpoenaing witnesses to testify that the worker was not acting impaired before the accident.
Nevada's law, NRS 616C.230 is similar to Utah's law with its rebuttable presumption that a work injury is caused by a worker having any amount of alcohol or a controlled substance in his system. The presumption has been rebutted in two past Nevada Supreme Court cases involving marijuana.
Last year I settled a case that was similar to the Utah case. My client, a drywall installer, had coffee and chatted with supervisors for about ten minutes before starting work. Shortly after he began working, he had to use a short step-up ladder on an uneven floor, He lost his balance, fell, and fractured his wrist. He tested positive for marijuana metabolites at the hospital, and his claim was denied. If we didn't win his appeal, he would be on the hook for large medical bills, a long period of off work with no benefits, and no award to compensate him for being unable to move his wrist normally.
I was able, however, to rebut the legal presumption that marijuana intoxication caused my client to fall from a step-up ladder that should not have been used on this project. Our expert toxicologist was prepared to testify that the amount of marijuana metabolites found in the client's urine did not prove that he used it recently or that he was impaired when he had the accident. Additionally, he had supervisors and co-workers who observed him acting and moving normally when he reported for work and had coffee with them.
Some of these intoxication cases can be won by experienced workers' comp attorneys. You do need to cooperate with your employer's request that you submit to blood or urine testing immediately after your injury. You also need to be aware that while you may win your workers' comp appeal and get the claim accepted, your employer may nonetheless fire you for not complying with their company policy on drug or alcohol use.
--Written by Virginia Hunt, Hunt Law Office
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.
5 Tips for Doing It Yourself at the Hearings Officer Level
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.
More Probable Than Not
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.
8 Letters that May Require Legal Action Now
1. The claim acceptance or denial letter.
If your claim is denied, no medical or compensation benefits will be paid, and the clinic that provided emergency medical care will start billing you. You must file a request for hearing within 70 days of the date of the denial letter on the form included with the denial letter. The only excuse the hearings officer can accept for not filing on time is that you can prove that you did not receive the letter and form. You must make sure that you gave your correct address on the C-4 claim form, and that you called the third-party administrator if you moved immediately after filing a claim. If you did move and have not received a denial or acceptance letter within 30 days after you first got medical care and filled out a C-4 form, call and find out if the acceptance or denial letter was sent to your correct address.
If you file an appeal from a claim denial letter, and you lose after the first hearing, you must file a further appeal with the Appeals Division within 30 days.
If the letter from the insurer says that the claim is accepted, read what the letter says about what body parts are accepted. If you injured your left wrist, but the letter says that only your left knee is accepted, you need to get an amended acceptance letter, or appeal that letter within 70 days.
2. Average monthly wage letter.
This letter is sent when you have been off work for 5 days in a row, or 5 days within a 20-day time period. It tells you what the insurer has calculated your average monthly wage to be based on wage information provided by your employer. Your benefits will be 66 2/3 of that figure. Even if you were not out of work for long, make sure this figure is correct, as your final award is also based on this figure. If you think the insurer incorrectly calculated your average monthly wage, you need to file an appeal before your claim closes.
3. Letters regarding your medical care.
In the first 90 days of the claim, the injured worker can request a different doctor on the insurer’s provider list, and the insurer must honor that request. So, if you are unhappy with your clinic or doctor, put a request in writing to the insurer asking for a copy of the provider list. Then, send a request to change your doctor to another one on the list. After your claim is 90 days old, the insurer does not have to change your doctor.
4. Any letter suspending, terminating, or denying benefits.
You must file an appeal on the form provided with the letter from the insurer within 70 days or these benefits are forever lost.
5. The letter closing your claim.
If you think you need more medical care, you need to file an appeal within 70 days. If the closure letter does not say that you will be scheduled for a rating evaluation, and you think you are entitled to a PPD award, you likewise need to file an appeal, and follow the procedure for obtaining a rating on your own.
6. The letter offering you a PPD award.
You need to file an appeal within 70 days if you disagree with the percentage of impairment. Even if you do not disagree with the percentage of impairment, do not elect to take the award in a lump sum if you have filed an appeal or intend to because you think more compensation benefits are due for past time periods, or you want more medical care, or you are trying to get treatment for an additional body part.
7. A letter denying vocational rehabilitation benefits.
You need to file an appeal within 70 days as indicated in the letter on the form provided.
8. Letters from medical providers billing you.
You want to call and send a letter advising them that you have an accepted workers’ comp claim, and give the claim number and name and address of the TPA handling your claim. Medical providers should not bill injured workers, but they will if they do not have claims information.
See the articles in the Information Center for more information on the subjects mentioned above, such as How to Obtain a Second Rating, or Are you Entitled to Vocational Rehabilitation?
