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Dr. Pirruccello Explains How to Rate Spinal Injuries

Virginia :  The primary purpose of my blog posts is to inform Nevada's injured workers about the law and the claims process.  However, I occasionally like to offer my readers from the workers' compensation industry a more detailed analysis of a current issue that requires a working familiarity with Nevada workers compensation claims.   The following is a guest blog post by a well-respected Nevada rating doctor on a difficult  rating issue.  (Chiropractors on the DIR's list of rating doctors  are  qualified to rate any injury to the musculoskeletal system.)

Under the 5th edition of the AMA Guides to Permanent Impairment, when a rating doctor is evaluating a cervical, thoracic, or lumbar spine injury, such as a herniated disc, the doctor must correctly  choose one of two rating methods in the book.  Whether the rating doctor uses the  range of motion method , or uses a DRE category can significantly change the percentage of impairment.   Ultimately, the  amount of money the injured worker receives as his PPD award, will be affected.  I asked Paul Pirruccello, D.C,  currently on the DIR's panel to review Nevada ratings for errors,  to explain when the Guides require that the rating doctor use the Range of Motion method of rating spinal injuries:

 

 When Should the Range of Motion (ROM) Method Be Used for Spinal Impairment?

When an adequate number of PPD ratings have come across your desk, you will inevitably come across spinal ratings where the ROM Method has been used because the rating doctor thinks there is "multilevel involvement."  The major concern in these cases lies in the rater's understanding of the AMA Guides definition of multilevel involvement.  The proper utilization of the ROM Method is best defined in Section 15.2a #4 on page 380 of the AMA Guides, as follows:  a. Fractures at more than one level in a spinal region. b. Radiculopathy bilaterally or at multiple levels in the same spinal region. c. multilevel motion segment alteration (such as multilevel fusion) in the same spinal region. d. Recurrent disk herniation or stenosis with radiculopathy at the same or a different level in the same spinal region.

 
The key findings that must be associated with multilevel involvement, when using the ROM Method are: fractures, radiculopathy or alteration of motion segment integrity (fusion).  Without one of these key findings the ROM Method should not be used.  
 
I have oftentimes seen PPD reports where raters have used the ROM Method for multilevel degenerative disc disease, multilevel disc bulges, multilevel strain/sprain injuries or multilevel disc herniations without multilevel radiculopathy.  None of these qualify for use of the ROM Method.  Always think multilevel fractures, radiculopathy or fusion when you think of the ROM Method and multilevel involvement.  Without these qualifiers, the DRE Method is used.
 
by Paul Pirruccello, D.C. Sept. 2014
 
Dr. Pirruccello has been a practicing chiropractor in Reno for 33 years and continues to treat workers compensation patients.  He has performed PPDs since 1998 in Reno and Las Vegas, and PPD reviews since 2002.  He is currently in his second stint on DIR's PPD Review Panel.  He can be reached for questions at doctor@pirruccello.us.
 

 --Written by Virginia Hunt, Hunt Law Office

What's An Apportionment of Your PPD Award?

Forgive me for not explaining the word apportionment sooner in my past blog posts about permanent partial disability awards on Nevada workers' compensation claims.   It's a bad word, and it means subtraction from the percentage of impairment.  It the rating doctor writes in his report that he found you have a 10% whole body impairment, but is apportioning the award by 50%, that means you will be offered a 5% whole body award, or half of the amount of money you would have been offered.

If your adjuster on your claim  has been talking or writing about preexisting medical conditions or has mentioned the  degeneration noted in x-rays or your MRI reports, you should be prepared for the adjuster wanting the rating doctor to apportion your impairment.. A good rating physician will always throw in a sentence or two that they considered apportionment even if they don't do any subtracting in coming up with the final percentage.  An adjuster who wants your award sliced in half or a good chunk deducted from it, may even write to the rating doctor after she gets his report and ask him to reconsider apportioning the award. 

Many rating doctors are falling victim to adjusters who are getting very aggressive about reducing injured workers' awards.  It is no secret among workers' compensation attorneys that many adjusters have a short list of their favorite rating doctors; ones that they will agree to do the rating rather than have one assigned by the DIR's rotating list.  In order to stay in the adjuster's good graces and on this short list, some rating doctors will apportion awards when they should not be making subtractions.

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Mark Kabins, M.D., Orthopedic spine surgeon

 Mark Kabins, M.D. spoke to a small group of claimants' attorneys last week to  talk about treatment of work-related spinal injuries.  Dr. Kabins, a long-time resident of Las Vegas, was a very animated and passionate speaker about  treating injuries  under workers' compensation  claims. He is a Diplomat of both the American Board of   Orthopedic Surgery and the American Board of Spine Surgery.  

I told  Dr. Kabins that many of my clients want to k now whether they should be asking for a transfer of care to a neurosurgeon,  or instead,  to an orthopedic surgeon,  when it appears that they may need a back or a neck surgery.  Dr. Kabin's response was to send the person to the doctor who is the best surgeon, regardless of what they list as their primary specialty.  Dr. Kabins then elaborated that his surgical practice is different from other local surgeons in that he does not pre-screen his patients so that only likely surgical candidates are scheduled.  Instead, he welcomes treatment of back strains where there are muscle rips at the ligaments, and he wants to be involved early in the treatment of such cases so that the patient can be properly educated about the diagnosis and become an active participant in their own healing process. 

Dr. Kabin's stated that about 15 to 30% of the lumbar injury cases referred to him really involve an injury at the SI joint level.   He also explained the difference between a lumbar bulge (either normal, or depicting an annular tear), and contrasted it with a disc  protrusion, which  he described as  a pimple-like subligamentous disc herniation.

 Dr. Kabins is a  fantastic  educator, and he justified the long wait times in his office for patients as being necessary in order to allow him whatever time is required to properly attend to individual patents.  His office manager, Brenda Cotton,  recommended calling ahead and discussing any particular time requirements you may have so as to reduce extended time in the waiting room.  Dr. Kabin's outstanding record of safe surgeries with excellent results should matter more than a quick appointment for injured workers looking to transfer care from the initial clinics.

Dr. Kabins also treats patients with injuries from California and Arizona who must be billed under those states' fee schedules.  Although he is currently on provider lists for many Nevada insurers and their third-party administrators, he is not opposed to  opening provider lists to any physician in good standing who is willing to accept the Nevada fee schedule.  He practices with Mary Ann Shannon, M.D., who specializes in upper extremity, hand and sports injuries.  John Reneau, M.D., is a physical medicine  and rehabilitation  physician with the  practice, called Las Vegas Orthopedics, Spine, and Rehabilitation.  Their office is located at 501 S. Rancho Dr., Suite I-67, Las Vegas, NV 89106.  Their phone is (702) 243-4700.

--Written by Virginia Hunt, Hunt Law Office

Dr. Maureen Mackey Dies

One of the best physicians to care for Nevada's injured workers died recently following a long battle with cancer. I first met Dr. Maureen Mackey when I was working as an attorney for the State Industrial Insurance System, and she was employed as a physical rehabilitation doctor for the Jean Hanna Clark Rehabilitation Center in the building now occupied by the dental school on Charleston Boulevard in Las Vegas.

Dr. Mackey was particularly known for her extraordinary compassion when treating people with traumatic brain injuries and spinal injuries that prevented them from ever returning  to any kind of employment after a work accident. When she left the JHCRC to open her own medical practice at a shabby little office on the corner of Sahara and Eastern, she continued to treat many of those permanently and totally disabled injured workers. I know that she didn't get paid much, if anything, for continuing to care for many of them. That made it impossible to decline when Dr. Mackey called to ask if I could help one of her homeless or brain-injured patients who needed legal help for free. 

She had one  "good" chair  for visiting lawyers who didn't want to ruin their suits on her ratty old chairs when their clients were rated for impairments. Regardless of what  injury she was rating, Dr. Mackey always gave the injured worker an eye exam, and she always scolded those people who were neglecting their health.   She wasn't liked by everyone because she  spoke her mind, and she didn't back down when she thought she was right.  

I remember one rating exam when my client, who had three failed back surgeries, asked her whether he would ever get better.  This client had correctly guessed  that Dr. Mackey was someone who would tell him the truth. Dr. Mackey looked him in the eye and said, "No, only prayers will help you now. Shall we pray together?"  The client smiled and said, "Sure."   Dr. Mackey, who was a bit overweight and with bad knees, then held the client's hand, ordered me to kneel (as I was the only one in the room who could kneel), and she said a prayer aloud for the client.  We could use some more doctors like her. 

--Written by Virginia Hunt, Hunt Law Office

Out-of-State Medical Care for Nevada Injured Workers

 Nevada has a highly transient population, with people moving in and out of the state frequently, particularly in this volatile economy.  I remember the days when they used to publish the Las Vegas phone book twice a year. (Now no one uses a phone book; we use our smart  phones.)  

When an injured worker with an accepted Nevada claim moves out of Nevada while still needing medical care, he or she must do the following:

1. Before the move, find the name of  a reputable doctor you want to treat you.  Do some homework and ask people in your new hometown.  You may also ask your adjuster on your Nevada claim whether a nurse case manager she knows can ask for names, as they sometimes belong to a network of nurse case managers nationally.  

2. Send this link to the doctor and ask the doctor whether they will ask as payment what the Nevada fee schedule provides.

3. Once the doctor responds that she will accept the Nevada fee schedule of payments, request in writing to the adjuster that she authorize the change of doctors.  All of this takes time, which is why you need to start this process about a month before you move. 

4. Print out and take a copy of the Physician Progress Report you will have the doctor fill out after every doctor visit (that must occur monthly at a minimum).  This form will be necessary in order for you to receive benefits if your doctor takes you off work.  (If the doctor gives you work restrictions, whether you get benefits will depend on whether or not your employer at the time of the accident has light duty work available.  If not, you get benefits.  If the employer does have light duty, you don't get benefits simply because you moved and can't report for light duty work.)

5. If the doctor checks the box that you have a likely ratable impairment at your last doctor's visit, the insurer will pay for you to return to Nevada for a permanent partial disability evaluation (also known as a rating.) 

--Written by Virginia Hunt, Hunt Law Office

Temporary Partial Disability Benefits under Nevada Law

Temporary partial disability benefits  (TPD) are benefits that may be payable under the following circumstances:

1. You are working a temporary light duty job at a lesser wage because your duties are different, or you are making the same wage but your employer has reduced your hours each week;

2. You have a permanent job that is within your restrictions, but you are not making your compensation rate, but hope to within the next two years ;

3. You have concurrent employers at the time of your injury, and can only return to work for one of those employers while recuperating from your injuries,

In each of the above examples, in order to determine whether any TPD is owed, we must first know what your average monthly wage is on your claim and your compensation rate.  The average monthly wage is that calculation your adjuster sends you which determines how much you will be paid when when and if you are entitled to lost time compensation benefits.  For example, if your gross monthly wages were $3000, your average monthly wage would be $3000 a month, and your compensation rate (what you would actually receive in benefits when taken off work by your doctor.  That would be 66 2/3 of your average monthly wage, or $2000.

Your compensation rate is also expressed in terms of a daily rate,  which is then multiplied by the usual 14 day period the insurer pays bi-weekly benefits to those claimants off work due to their injury.  Each consecutive day within a pay period is counted, including Saturdays and 'Sunday. 

You can tell whether any TPD is owed to you by taking your current paycheck stub from your employer from your reduced hours temporary light duty job, and subtracting your net (how much you made after taxes, SSI, medicare   If that amount is less than your compensation rate for that same period of time, then workers' compensation will owe you the difference between your compensation rate and what you netted on your paycheck. 

Click here for any easy worksheet you may use to determine whether TPD is owed for a particular pay period.  If so, you need to send a copy of your paycheck to your adjuster and ask that TPD be paid for that time period.  You will have to look at each paycheck you receive to determine whether you are owed TPD that time period.   

If you have a permanent light duty job and aren't making your compensation rate, TPD benefits are payable for up to tow years.  After two years you should be making your compensation rate. 

Remember, you must actively seek these benefits by promptly sending in paycheck stubs and by asking for these benefits. 

--Written by Virginia Hunt, Hunt Law Office

Does Your Employer Need to Keep You When You Have Permanent Work Restrictions?

 Let's assume that you have an accepted workers' compensation claim in Nevada, and that your treating doctor has just released you with permanent work restrictions that would  ordinarily prevent you from being hired or going back to your regular duties at the job you had when you were injured.   The question is whether your employer must take you back and find you work that takes into account that you have these permanent work restrictions. 

Under Nevada workers' compensation law, the answer to that question is:  No your employer is not required to modify your old job or find you a new job where you don't have to do any work that would exceed your permanent work restrictions.  Instead, your employer can simply tell your adjuster that they don't have work within your permanent work  restrictions and that the employer will not be making a permanent light duty job offer.  When that happens, the adjuster schedules you to meet with a vocational rehabilitation counselor to discuss the two options that are available to you under Nevada workers' comp law:  a retraining program, or a sum of money called a vocational rehabilitation lump sum buy-out.  How long a retraining program, or how much money your can get as a buy-out, will depend mostly on what your percentage of impairment is after your rating evaluation.

But what if you really wanted to remain with the same employer and don't want to be retrained or don't want to just accept a buy-out and then have to find work on your own?   Is there anything you 

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Bad Law on Doctor Choice for Nevada Injured Workers

 Change Needed to Nevada’s Law on Physician Choice for Injured Workers

A.     A Short History of the Law

In 1913, Nevada first enacted the Nevada Industrial Insurance Act and the Nevada Occupational Disease Act, now known as NRS Chapters 616A-D, and NRS Chapter 617.  It was administered by the NIC (Nevada Industrial Commission).   The NIC was a monopolistic state agency.  No private insurers were allowed to provide policies to employers, and there were no self-insured employers.   In 1973, the legislature directed the NIC to appoint a panel of physicians statewide who were competent to treat injured workers, and the NIC could add, suspend or remove doctors from the panel.

 In 1979, large employers were allowed to become self-insured, and the Dept. of Administration took over the Hearings Division from the NIC.  In 1981, the SIIS (State Industrial Insurance System) replaced the NIC.  The Division of Industrial Relations, a sub-agency of the Dept. of Business and Industry was given regulatory authority over the SIIS and self-insured employers.  During that period of time, the NIC, and then the DIR, continued to maintain a panel of physicians from which the injured worker was free to choose a treating doctor.  Almost all doctors licensed to practice in Nevada were added to the panel.  Healthcare providers were reimbursed based upon a fee schedule developed by DIR and based upon customary billings procedures.   Providers were paid their full bill or the amount allowed under the fee schedule, whichever was less.

In 1993, SIIS management claimed that it was unable to pay its long term liabilities.  The alleged insolvency became a crisis since SIIS was a state agency.  Sweeping legislative changes were made to reduce the perceived deficit, including managed care.  SIIS was authorized by the legislature to contract with a limited number of providers.  The idea was that competition to become a provider on the insurer’s panel of doctors would result in providers agreeing to substantially lower fees for service.  The legislature also abrogated the right of the injured worker to choose any doctor from the DIR’s panel of physicians.  It passed NRS 616C.090, requiring an injured worker to select a treating doctor from the employer insurer’s MCO plan.  

In 1999, SIIS was privatized, and the state fund was replaced by a mutual insurance company called Employers Insurance Company of Nevada (EICON). Private insurance carriers were also allowed to underwrite policies.  More large employers went self-insured.

In response to complaints by labor advocates regarding the lack of choice of treating doctors available to injured workers under the managed care provision, the legislature passed a law in 2003 allowing DIR to adopt regulations concerning the adequacy of physicians on provider panels.  DIR was to hold a public hearing and then adopt regulations ensuring that injured workers had a meaningful choice of physicians. Private carriers, EICON and self-insurers were still authorized to contract with a limited number of providers while seeking the lowest charge possible for medical services, but DIR was supposed to determine what adequate provider panels were.  However, DIR never adopted regulations.

In 2007, the Nevada Supreme Court upheld NRS 616C.090, the law that requires an injured worker to choose a doctor from the insurer’s MCO provider list, even if that meant the injured worker had to change doctors whenever the MCO’s provider list changed.   The court stated in Valdez v. EICON, 162 P.3d 148 (Nev. 2007) that while the right to receive medical treatment is a statutory right, limits on physician choice is not.  Instead, the physician choice law is a procedural mechanism for managing the workers’ compensation system.

In 2009, the legislature clarified that an injured worker could make an alternative choice of doctor from the insurer’s provider list within the first 90 days of the claim.  It also provided that the insurer should give a specific reason for denying any requests to change doctors after 90 days.  Insurers and TPA’s were also required to send a DIR-approved notice regarding the law on choice of physicians to injured workers.  The provider list is available to an injured worker within 3 working days if the request for the list is in writing.  This remains the law today. 

B.     Why the Law Should Be Changed

Allowing insurers, self-insureds, and their third-party administrators to require that injured workers treat only with doctors on their exclusive provider lists is unfair to injured workers and to physicians.  In order to get on an exclusive provider list and stay on it, a physician must agree to accept fees for services that are less than what the Nevada fee schedule provides as reasonable and customary.  These exclusive provider lists change at the whim of the insurer or its TPA, depending on whether the insurer or its TPA likes the way the physician is diagnosing injuries, providing care, and is releasing the injured worker to  full duty or is stating that there isn’t a likely ratable impairment.   The quality of care to the patient is compromised by undue pressure on physicians to satisfy the insurer’s cost-cutting measures and early claim closure practices.  It isn’t unusual for an injured worker to report that his physician told him he couldn’t request more physical therapy because it would anger the insurance company, or that his physician told him the insurer wouldn’t allow him to take the patient off work. 

Under the current law, the injured worker only has an absolute right to change doctors to another on the particular insurer or TPA’s provider list within the first 90 days of the claim.   After 90 days, the adjuster can deny the request to change doctors.   Although the law requires the adjuster to have a valid reason for denying these requests, adjusters routinely deny request for a new doctor after 90 days.   One of the most significant problems with medical treatment under a workers’ compensation claim is the length of time it takes for an adjuster to authorize diagnostics and specialty consultations.  The claim may be 4 months old, for example, before the adjuster authorizes an MRI and schedules the worker with an orthopedic physician after the clinic doctor has been requesting this for 3 months.  If the injured worker doesn’t like the orthopedic surgeon the adjuster chooses to see him, and wants a consultation with another one, the adjuster may deny the request.  It then takes time to appeal this denial.   An injured worker ought to be able to choose which doctor will perform a surgery on her. 

It is unfair to have a law requiring that injured workers treat only with the insurer’s exclusive medical providers, while insurers often rely on opinions from physicians who are not on their provider lists to deny surgeries and to deny other treatment recommended by the authorized treating doctor.  Utilization review doctors aren’t on insurers’ provider lists, but these are the doctors the insurers rely on when an insurer doesn’t agree with the treatment recommendation of their own provider physicians.

Amending the law so that the injured worker can choose as her physician any doctor who is in good standing on a provider list maintained by the DIR, whose doctor agrees to accept the Nevada fee schedule, would be a fair way of ensuring adequate medical care at uniform and reasonable costs.   DIR would have the authority to remove any doctors from the panel for good cause, thereby addressing any concerns the insurers or injured workers might have about doctors who are disciplined,  or doctors who aren’t following regulations on how to treat injured workers.

 The historical reason for adopting managed care with provider lists controlled by insurers was to avert a supposed financial crisis facing the state-run SIIS.  That reason is no longer valid.   The DIR is in the process of reviewing its fee schedule so that it is reasonable and in step with customary medical charges.   Doctors who want to be on a DIR-controlled panel of providers can easily be educated as to what the law requires of doctors who treat injured workers.  Good doctors who refuse to accept less than what the fee schedule provides can again treat injured workers, and no doctors will feel pressured by insurers to adjust patient care decisions just to remain on an exclusive provider lists. 

Thank you to Ray Badger for help with the history.

--Written by Virginia Hunt, Hunt Law Office

What To Do About Delays In Getting Medical Care

 

1. First, know how long the adjuster has to approve or deny your doctor's request. 

  • Your adjuster has 30 days to accept or deny your Nevada work comp claim.  Expect only emergency care and clinic visits in the interim. 
  • If your doctor doesn't think that diagnostic tests or treatment are necessary now, your only option is to ask for a provider list of alternate doctors.  If you ask in writing within the first 90 days of your claim, the adjuster must approve it.  The next doctor may agree that diagnostic tests  
  • Prior authorization is required for MRI's, more than 6 physical therapy visits, surgery, neurological testing, or specialty consults. 
  • Nevada law gives the adjuster 5 working days from receipt of the doctor's request form to approve or deny it. NRS 616C.157. 
  • Adjusters routinely ignore the 5-day rule by scheduling a second opinion consultation.  Or, the adjuster may ask for a review by an outside doctor hired to control claims costs, particularly if a low back surgery is requested.

2. Find out why there is a delay.

  • Don't assume it’s the adjuster's fault.  Ask your doctor's staff when they faxed the authorization form.  It may not have been faxed for several days after you saw your doctor.  Make sure they faxed an authorization form.
  • The adjuster will also need the doctor's dictated report if an expensive medical procedure is requested.  The adjuster may also ask the doctor answer questions about preexisting conditions or what injuries were caused by this accident.
  • Politely ask the adjuster whether she received the authorization form.  If she didn't get it, confirm her fax number, and ask your doctor to re-fax it to the correct number.  If the adjuster claims she already returned the form, ask her to please re-fax it. Many delays are due to wrong fax numbers, misplaced faxes, or the doctor's failure to send the necessary authorization form.
  • Don’t resist any second surgical consultation the adjuster schedules. It will just delay things further and could result in a suspension of your benefits.   However, if the adjuster wants multiple consults, she is probably going to deny your doctor's treatment request.  Get legal help soon.
  • Using abusive language or calling the adjuster daily will only result in purposeful delayed action by the adjuster.   

3. For denied or indefinite delays, you must write (or get help).

  • If authorization is denied, don't waste time arguing with the adjuster.  Quickly file a request for hearing, and get your doctor's reports to present your position to the hearing officer. 
  • For an indefinite delay send a fax to the adjuster, stating that NRS 616C.157 allows your doctor to proceed as if the request was approved when there is no response within 5 working days.  When your doctor won't proceed without a signed authorization, file a request for hearing with the Hearings Division.  Attach a copy of your fax to the adjuster and a copy of the request form your doctor sent. 
  • Secondly, send DIR a complaint letter about the delay. Copy the adjuster.   Attach your supporting documents.  DIR may not be helpful, but the adjuster won't want to take the risk of getting fined for a violation of the law.   The adjuster will now quickly authorize the request or deny it, giving you the right to file an appeal.  Promptly file any appeals within the 70-day time limit.

 

 

--Written by Virginia Hunt, Hunt Law Office

Injured Workers Should Get Their Medical Records

 

All injured workers should get a copy of their medical records at some point.  Remember that your employer is being copied by the adjuster on all his/her letters to you and on some of your medical records.  You should know what your doctor says about you and your injury, particularly if you are having problems with your claim. 

NAC 616C.120 confirms that the injured employee has the right to inspect or obtain his health care records pursuant to NRS 629.061.   That law allows a patient to request a copy of records from any health care provider, which includes therapists.  The law states that the provider may charge the patient or their representative (attorney) a copy charge of 60 cents a page.  Call ahead and allow the provider's office staff a few days to get your records copied and ready for you to pick up. 

Medical providers, including physical therapists, who tell injured workers that they must get a copy of their records from the adjuster are wrong in not allowing a patient to obtain records directly from the provider. 

What an injured worker ordinarily gets from their doctor after each office visit is a Physician Progress Report, a one-page form which may or may not be slightly modified by individual doctors.  This Physician Progress Report (PPR) gives a brief diagnosis, treatment plan, any work restrictions or off work instructions by the doctor, and the date of the next office visit.  In addition to this form, the insurer receives a dictated report by your doctor after each visit.  Rarely is this dictation ready immediately following an office visit.  You must specifically request a copy of it from either the doctor's office or from the adjuster handling your claim.  

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Meals and Lodging

The Nevada Division of Industrial Relations has determined that meals and lodging for attending physician appointments will be paid at per diem reimbursement rates set by the U.S. General Services Administration. The rates vary by season and by the city or county that is your destination.  Your request for reimbursement for meals and lodging should be made on the mileage reimbursement form you use to request mileage payments from the insurer.  Please note that the rates also vary  for meals depending on whether it is your first or last day of travel.  Most rates for meals are about $65 - $70 a day for three meals.  

--Written by Virginia Hunt, Hunt Law Office

Dr. Dettling Talks About Shoulder/Knee Work Injuries

 Orthopedic surgeon James Dettling, M.D. specializes in shoulder and knee injuries.  About half his patients are injured workers treating under a Nevada workers' comp claim.   He and long-time medical assistant, Patrick Boland, and their indispensable office manager, Diane,  stopped by my office today to meet my assistants and to chat over lunch.  I've known Dr. Dettling to give straightforward, honest opinions over the years, and I see excellent surgical results  .  I enjoyed having the lunch hour to ask Dr. Dettling about the problems he has treating work comp patients.

 We commiserated about the increasing use of retired out-of-state orthopedic doctors hired by insurers to do peer review of treatment requests.  (In Nevada, surgeons must request pre-authorization from adjusters for all non-emergency surgeries, for diagnostic tests like MRI's, and for physical therapy.)  Shoulder and knee surgeons aren't second-guessed as much as the spinal surgeons, but  Dr. Dettling noticed that he too was having to deal with  denials from  doctors who cite outdated treatment guidelines. For example, he told me that  according to current orthopedic standards, physicians should be prescribing many more physical therapy visits than the number allowed by industrial insurers following rotator cuff repairs.

Dr. Dettling and any doctor who actually provides  care has a legal  doctor/patient relationship and must adhere to current and real peer treatment guidelines.  Hired-gun doctors for insurers are not accountable for their  judgment errors in denying treatment requests by treating doctors.  Moreover, under Nevada law, an injured worker cannot sue an industrial insurer for bad faith or negligent claims administration, so it is essential that treating doctors maintain their integrity and continue to request treatment according to their best judgment, regardless of anticipated denials by the insurer.  An experienced work comp attorney can deal with the denials so long as the treating doctor continues to make the requests for the best treatment. 

Dr. Dettling stressed that with a surgical patient, a successful outcome does not just depend on his skills.  Equally important is the expertise of the post-surgical physical therapist assigned to rehabilitate the patient.   For that reason, he asks for particular therapists to work with his patients.  I had not realized that, so that is something I can keep an eye on for my clients to make sure that the therapist the doctor wants is approved by the insurer. 

Dr. Dettling and I  agreed that the lengthy delays in obtaining necessary MRI's and surgery approvals on comp claims cost patients more than lost wages.  He is particularly frustrated when he sees a patient with a bicep tendon rupture that could have been surgically treated if the patient had been referred to him soon after the accident.   

 Patrick and Dr. Dettling complained about adjusters who don't sympathize with patients who cannot drive themselves to work after shoulder surgeries.  Likewise, he characterized as cruel those employers who want him to substitute a non-narcotic pain medication just so the hurt employee can report for a mindless light duty job just days after surgery.

We also talked about the power of the third-party administrators and insurers to  control their provider lists.  He stated that he would support a legislative change that would allow injured workers to treat with any doctor who is willing to accept  what the Nevada fee schedule allows. 

Diane, the office administrator, and Dr. Dettling impressed me with their knowledge of what is required to reopen a Nevada claim.   They accept cash pay from former clients who need a letter from the doctor documenting a worsening of the industrial injury, and then refund the payment to the patient if the insurer reopens the claim and pays the doctor.  Thank you,  Dr. Dettling, Patrick and Diane for an informative luncheon.                

                                                                                             

 

                                                                                                                                                                                                                 

                                                                                                                                                                                                                 

--Written by Virginia Hunt, Hunt Law Office

Low Back Pain: Work-Related or Not?

Most people, excluding  lawyers, are likely to tell you that it is an obvious fact that strenuous activity involving load on the back in occupations with heavy lifting, twisting, bending, and carrying  will cause more back injuries.  Athletes and medical  professionals are less likely to make the injury causation assumption, and will respond that people who use their bodies correctly for physical work are actually in better physical condition, with fewer back injuries than workers with sedentary jobs sitting in front of a computer all day.  Add to the discussion that  back pain is prevalent in the general population, with 80% of Americans seeking treatment for low back pain at some time, and it is difficult to get a consensus as to what  back injuries are work-related. 

     The AMA Guides to the Evaluation of Disease and Injury Causation by Melhorm and Ackerman, published in 2008 by the American Medical Association is a book dedicated primarily to assist health care providers when giving their opinion as to whether a condition is work-related or attributable to a specific event.  The authors use the catch phrase  "evidence-based' decision, and the book discusses the strengths and weaknesses of the available evidence considered reliable by experts in various medical specialties.  The book cautions that because each state establishes case precedents and has its own laws, what is considered acceptable evidence can vary widely.  A review of the Nevada Supreme Court decisions on low back injuries, does little to tell us where to neatly draw the line between a compensable low back injury and one that is not work-related. 

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Can I Hire a Lawyer after I Get My PPD Offer on My Nevada Claim?

 

Can I Hire a Lawyer After I Get My PPD Rating?

 

Yes, you may.  Just make sure that you are getting experienced guidance and good value for paying an attorney fee at this late stage of the claim, and be aware that attorneys’ fees will differ from one attorney to the next on such cases. 

I often get phone calls from clients wanting to know whether the percentage offered by the insurer is fair after the rating exam, and whether the amount offered is correct.  I will review those rating evaluations free of charge to an injured worker in Nevada who faxes me a copy of the insurer’s offer with the rating report attached.  Just give me your contact phone number or email so that I may contact you after I review what you send me.   You may also tell me on the fax cover what you think may be wrong with the PPD.   If you don’t have any idea, but are just asking me to make sure, that’s fine, too.

Even without having your complete claims file and medical records, I can often spot obvious errors by the rating doctor, like those involving apportionment.  I can also tell you whether or not you should have me obtain your medical records to explore the rating in greater depth. Again, I don’t charge for this service, and the only cost involved will be the 60 cents per page that medical providers charge me for obtaining your medical records.  Be sure to contact me before the 70-day appeal time runs to contest the percentage in the PPD offer.

Deciding whether to contest a rating is a multi-step process that I can usually do rather quickly.  I may want to get the name of a second rating doctor from the Division of Industrial Relation’s rotating list before advising you whether I think it is worth your spending $718 to get a second rating.  Or, I may tell you that I think we can spend just $283 to have a rating doctor review the rating without another exam.  Or, I may think that the original rating doctor may revise his rating after I send a letter advising him of an error I’ve found.  The client remains in control each step, and is usually free to accept the amount offered by the insurer without risk of losing what was offered initially. 

If I think there is a good chance of my improving the percentage offered, I typically suggest an attorney fee that is a contingency percentage of the difference between what was offered by the insurer and what we ultimately obtain.   For example, if the injured worker is offered a 7% PPD, and I am able to increase that to a 10%, my fee would be a percentage of the difference between the 7% and 10%.  In other words, the fee would be a percentage of the extra 3% only.  If I am not successful in increasing the 7% PPD, no fee would be owed.   Whether we proceed with trying to obtain something greater than the 7% would of course involve my careful analysis of any risk of losing the original 7% offered.

What the contingency fee I charge on these types of cases varies depending on what work I think will be involved on my part.  Do you also  have issues pertaining to vocational rehabilitation that will need my help?  Are you likely to want to reopen your case for more medical care in the future, and need my help with that? Or, do we anticipate that your case will only be about the PPD award?   I think you will find that I charge fair and reasonable fees.  My business depends on satisfied clients who find my services to be valuable and worth the attorneys’ fees I charge for helping you. 

--Written by Virginia Hunt, Hunt Law Office

Quiz on Nevada Work Comp PPD Awards

 

Test your knowledge of permanent partial disability awards on Nevada workers' compensation claims with the following quiz.  I will post the answers next week with explanations. Have fun!

 Quiz Time-  How Much Do You Know About PPD’s in Nevada?

1.   1.  True  or  False?

         Even if an injured worker has a surgery for a hernia caused by work activity, he is not entitled to a permanent partial disability award.

2.   2.  True  or  False?

 A  persistent low back strain does not entitle an injured worker to a permanent partial disability award if the MRI does not show a herniated disc greater than 3mm.

3. True   or  False?

If the injured worker failed to contest the insurer’s average monthly wage determination used to pay compensation benefits when the injured worker was off work following surgery, it is probably too late to argue that the average monthly wage should be calculated higher when the permanent partial disability award is offered.  

4.     4.  True  or False?

A cervical fusion done for a work injury will always result in a ratable impairment even if the injured worker has no pain and work restrictions following the successful surgery.

5. True  or False?

 Iinsurers and their third-party administrators may have contractual arrangements with particular rating doctors to pay them less than the usual, state-approved fee for a rating in exchange for the physician or chiropractor remaining on their provider list.

 6.   6.  True  or  False?

If the rating doctors appointed by DIR to review rating evaluations find an error in the rating, the third-party administrator will be required to notify the injured worker of the mistake and offer the corrected PPD award if it is higher.  

 

--Written by Virginia Hunt, Hunt Law Office

Physical Therapist Karen Crawford Knows Nevada's Injured Workers (And She Cares!)

One of the benefits of being self-employed  and writing my own blog is that I can express my opinion  on what is right with Nevada's workers' compensation system, and what needs improvement or overhauling.  I accept no "favors" from medical providers I mention as providing superior service to injured workers.  I like to let hurt employees know which doctors and facilities I like in the hope that it may benefit my readers.  Obviously, people will disagree with my opinion, and they may have different experiences.  I am always happy to hear about your particular experiences, and encourage you to write to me about which medical providers have been helpful, and who haven't been.

I've known physical therapist Karen Crawford, owner of MML Physical Therapy, for as long as I've been practicing workers' comp law, and she is the real deal.  When you first meet Karen, you are immediately impressed by her passion for helping injured people get well.  She genuinely cares about her patients, and she is forthright and direct in her opinions.  Her obvious commitment to her patients sets her apart from the many physical therapy options in the Vegas Valley where the patient may or may not have just a few minutes of the actual therapist's time.  Karen's integrity is exceptional, and you can count on getting an honest opinion from her, whether you agree with her or not.

Karen offers more than her experiences as a certified physical therapist licensed in Nevada and Texas.  She is a board certified pain management specialist, and is affiliated with the national associations that research chronic pain, reflex sympathetic dystrophy, fibromyalgia, and sports medicine.  She has a reputation among both the more experienced claims managers and claimants' attorneys as a therapist who can evaluate and treat the most difficult chronic pain patients.   Her triple Masters of Science in Psychology, Mental Health Counseling, and Physical Therapy allow her to gain insight into treating the patient as a  whole person. She consequently gets  phenomenal results in restoring miserable patients to better health and happiness. 

Karen understands the politics of the workers' compensation system better than most.  She tells me that she knows her business has taken  a hit financially because she doesn't bend to pressure from adjusters who want to tell her how to treat her patients.  She spends time listening to each patient, and refuses to sacrifice quality treatment in order to obtain a quantify of referrals from insurers.

Like a few of the other larger, established physical therapy providers in Las Vegas, she is asked to perform Functional Capacity Evaluations.  FCE's are used by doctors to determine what an injured worker's permanent work restrictions should be.  Only, Karen goes one step further.  She has seen a disturbing  increase in the number of invalid FCE's by other therapists.  An invalid FCE occurs when the therapist conducting the test does not think the patient has passed over 70% of the validity criteria built into the test.  Validity criteria supposedly reveals whether the patient is trying their best to physically perform  the test.  Most doctors release the patient with a full duty work release if the FCE is invalid.  However, the doctor gets the ultimate say on whether the patient should have work restrictions or not. 

 Karen  has observed an increasing number of invalid FCE's done  by other therapists. She doesn't think that all of of those injured workers are deliberately trying to appear more disabled when taking the test.  She therefore has graciously agreed to re-test injured workers on a FCE for the reduced price of $500.  (A FCE normally takes several hours of the therapist's time, and they cost over $750.)  Karen understands that  injured workers who are released full duty based on an invalid FCE are out of work, don't have any money to challenge their insurer, and will not get any retraining benefits until they can obtain a valid FCE to present at a hearing.   This is truly a humanitarian service that Karen  offers injured workers who need a second FCE.  There is no guarantee that the injured worker will pass a second FCE, but at least Karen offers a second chance at a reduced price.

MML Physical Therapy is located at 1701 Bearden Drive, Suite 201, Las Vegas, NV 89106.  The business phone is (702) 384-6330; Fax (702) 384-2668; email  Crawfordpainpt@gmail.com.   

--Written by Virginia Hunt, Hunt Law Office

Rating Physician Richard Kudrewicz Dies

The workers' compensation community lost one of the most authoritative and fairest rating  physicians on November 30, 2013.  Richard Kudrewicz, M.D. , or Dr. K, as most of us called him, performed about ten times as many permanent partial disability evaluations on Nevada injured workers as most of the rating physicians on the DIR's rotating list.   Because adjusters and attorneys can agree on who to use for a rating physician, he was often agreed upon by both claimants' attorneys and defense attorneys to do a second or third  rating in contested cases.  He was extremely knowledgeable about the  AMA Guides, was always respectful to injured workers, and whether you agreed with his conclusions or not, you knew that you were getting his honest opinion regardless of who the parties were that were  involved.   In addition to his integrity, he had a great sense of humor.  My condolences to his wonderful family.  This is a  terrible loss for injured workers, too. 

--Written by Virginia Hunt, Hunt Law Office

What's My Nevada Claim Worth?

     I looked at a very interesting award calculator devised by a Maryland attorney based on his review of thousands of work comp awards in Maryland. It asks the injured worker to put a number from 1 though 10 on the level of pain and interference with activities for their injury,r the average weekly wage, and how long the injured worker was off work.  It does not ask for the injured worker's age. Byron Warnken, the author the website with this calculator, tells me that it is very good at roughly predicting what a client will receive for an award. The link to his website and calculator is http://www.mdcomplaw.com/.

     When I plugged in information for a fictional injured worker with a low back injury making $500 a week with a moderate level of pain and disability (number 5 on the calculator), the award came back at $18,500. I then ran the numbers with a 5% impairment, using Nevada law statutes and regulations on calculating permanent partial disability awards. The probable award was much less, in the $7500 to $11,500 range, depending on the injured worker's age. However, it is an interesting tool, and Attorney Warnken does caution injured workers that their actual projected award could be much greater or much less depending on a number of other factors .

     There are some injuries that are very easy for me to predict the PPD award, once I know the average monthly wage, the chronological age of the injured worker, and the probable percentage of impairment. However, the PPD award for most serious injuries cannot be predicted with a high degree of accuracy without the attorney knowing what objective diagnostic tests show, the operations performed on the injured body parts, what additional diagnostic tests were done, and what residual problems the injured worker is having.   I usually need a lot  more information than Attorney Warnken's calculator to predict a probable award.

      Once you give a client a dollar figure at an initial consultation, the client invariably feels disappointed with the attorney if the client hires the attorney based on an expectation of getting that dollar figure and if  the actual rating results in a lower award. I don't mind discussing the range of percentage for similar injuries and some of the factors the AMA Guides want the rating doctor to take into account when calculating the whole person percentage. I like my clients to be educated about the process and encourage questions. If I can give a realistic percentage of impairment that I would expect at the end of the case, I will give that information to an injured worker during a free consultation with me.  Likewise, if I think it will be misleading to the client and create unrealistic expectations for a large settlement, I won't attempt to give a dollar figure.  

--Written by Virginia Hunt, Hunt Law Office

How to Stop Getting Medical Bills on Your Nevada Work Comp Claim

  Injured workers with accepted workers' compensation claims should not be getting bills for medical treatment from  hospitals, doctors, an anesthesiologist, or radiologist.  You know whether you have an accepted claim or not by whether you have received a letter from your self-insured employer or from a third-party administrator that says your claim is accepted.  (An acceptance or denial letter must be sent by the adjuster handling your claim within 30 days of the adjuster receiving a copy of the C-4 Claim for Compensation form you completed when you first went to the clinic or hospital for treatment of your injury or occupational illness.)

The most important benefit under the Nevada workers' compensation laws is the right of the injured worker to obtain medical treatment without having to pay a co-payment or deductible.   However, many of my clients who have accepted claims still get bills from medical providers.  

One reason a medical provider may be billing the patient instead of the workers' compensation adjuster is that the provider never got good billing information from you or your doctor when you were treated.  A phone call to the provider who sent you the bill with the name, address, phone number, and fax number of your workers' compensation adjuster, along with your claim number should take care of that problem.  I always send a letter with this information in addition to the phone call to have a record that I have notified the medical provider that this is an accepted workers' compensation claim and who to bill.  I also copy the adjuster on this letter so that she knows that there is a medical provider who  needs to be paid on the claim.  

Do not ignore the bills and collection letters.    Your credit can be adversely affected, and it will be a tremendous hassle to undo that damage later.   Ambulance services rarely have the correct billing information if you are unable to respond to their questions when you are injured.  Call and write to them with the correct billing information on your claim. 

Sometimes the medical provider has the correct billing information for your workers' comp adjuster and still bills the injured worker.  This is a violation of the law.  NRS 616C.135 states that a provider who accepts a patient for treatment of an industrial injury or illness may not charge the patient, but must charge the insurer.  That law also states that if the health care provider violates this law, the Division of Industrial Relations shall impose an administrative fine of not more than $250 for each violation.  

I just wrote a letter to the DIR on behalf of one of my clients who was billed by a radiology company where the bill stated on its face the correct name of the third-party administrator handling the compensation claim, with the notation "w/c", meaning workers' compensation.  There was no explanation on the bill why the radiologist was billing the patient as opposed to the known work comp administrator.  It will be interesting to see whether DIR does something with my complaint and actually fines the radiologist. 

I'm wondering how many injured workers who don't have legal representation have paid bills they weren't required to pay, particularly to radiology companies who are notorious for billing injured workers.  Let me hear from you if you think you have paid bills that really weren't your responsibility.  Did the medical provider reimburse you?

--Written by Virginia Hunt, Hunt Law Office

Concussions from Work Accidents

Obtaining appropriate medical treatment for  post-concussive symptoms  from a work accident can be as frustrating as the symptoms of a concussion.  A concussion is the term use to generally describe a head injury that may or may not result in the loss of consciousness.  It is unusual for someone who has a severe blow to the head, such was when a freight elevator door hits the top of the skull,  not to remember or be sure whether they lost consciousness.  

The most frustrating thing about concussions is that the CT scan of the brain may be normal, and there may be no other diagnostic evidence of an injury, but the post-concussion symptoms may persist.  Those symptoms may include migraine-type headaches, dizziness, difficulty waking in the morning and sleepiness throughout the day, blurred vision, fatigue, and even depression.  Because the cut on the head that was visible to co-workers is gone does not mean that the more troublesome symptoms are healed and gone, too.  

Neurologists, the specialty physicians who are best trained to treat concussions,  cannot predict exactly when an individual's symptoms will subside.  Other than prescribing pain medication for the most severe of the headaches, there is little the neurologist will do after ordering diagnostic testing to determine whether there is bleeding in the brain.  However, a good neurologist can properly diagnose what symptoms you are having that may be caused by the work accident, and whether an injury to the cervical spine (neck) might also be involved and the cause of your pain.  A neurologist will also educate you about your concussion and reassure you that barring any additional blows to the head soon after your accident, most concussions do not result in permanent brain injury.  

It is difficult to rate post-concussive symptoms for permanent impairment under the  AMA Guides to Evaluation of Impairment, 5th edition.  Subjective pain complaints are not ratable.   If the diagnostic tests ordered by the neurologist do not show a physical brain injury, testing by a neuropsychologist may nonetheless demonstrate a physical brain injury that can be rated.   An individual would have to have supporting medical reports of a continuing brain injury for the adjuster to even schedule a rating evaluation.  Then,  the rating physician, who should be a medical doctor, will be looking for any disturbance in the level of consciousness or awareness that affect the activities of daily living, impairments related to memory loss and an inability to function, and any verifiable emotional or behavioral impairments. 

--Written by Virginia Hunt, Hunt Law Office

Injured While Working for Two Employers?

 

 What happens when you are injured working for one employer, and you have two jobs and two different employers?  This is called concurrent employment in the Nevada regulations    If you are like most injured workers and you never talk to your claim's adjuster,  you might not know how important your second employment is to your claim.  

If your injury disables you temporarily from working both jobs, you might be entitled to temporary total disability benefits (TTD).  Those benefits are 66 2/3 of your average monthly wage.  Unless you ask the adjuster to add in the wages you earned at you second job, the adjuster will only use wages you earned at your first job  when she calculates your benefits when you are taken off work by your doctor.

Even though you weren't injured while working for your second employer, a Nevada regulation allows you to have the wages from your second job combined  with the wages from your first job as a base from which to calculate all benefits.  This may greatly increase your TTD benefits. It may also significantly increase your permanent partial disability (PPD) award at the end of your case. 

Things can get a bit more confusing when an injured worker is able to do light duty work for one employer, but not the other one.   Additionally, the second employer is entitled to regard your work injury as not being a job injury as far they are concerned. The second employer, for example, may offer light duty  to employees hurt on that job, but may not give light duty work to employees who are injured  while working on a different job for a different employer.  In that case, the injured worker will want to check that the net wages received from the employer are at least equal to the employee's compensation benefits the employee would receive if the employee were taken off work completely.

 

--Written by Virginia Hunt, Hunt Law Office

Maximum Compensation FY 2014

For those with accidents occurring after July 1, 2013 through July 1, 2014, the maximum state average monthly wage is $5,290.70.   That figure comes from the Nevada Department of Employment, Training and Rehabilitation, Employment Security Division.   That figure is the maximum amount that can be used as an injured worker's average monthly wage if the injury occurs between that fiscal year. 

The benefits on that average monthly wage of $5,290.70 is 66 2/3, which comes out to be $814.58 per week (count each of the 7 days).  The amount that would be in a monthly benefit is $3,527.13.

If you make less than the state maximum, your average monthly wage will be based on your actual earnings for a period of either 12 weeks before your injury, or one year.  The adjuster must use the time period of earnings that will result in the highest average monthly wage for you.  

Even if you are not our of work and not entitled to lost time compensation benefits, if you think you will have a permanent, ratable impairment, you will want to make sure that your average monthly wage calculation is correct and as high as possible.  The average monthly wage is one of the three factors that determines how much money you will receive for an impairment when your case closes. (The other two factors are the percentage of impairment, and how old you are when you are rated for impairment.) 

You can have your average monthly wage corrected at any time before you accept the final permanent partial disability award in a lump sum.  If you think your average monthly wage on your claim is too low, be sure to schedule a free consultation to have an attorney review it for you.

What Happens When You Refuse Treatment on Your Work Comp Claim

 Nevada injured workers with neck or back injuries frequently ask about what will happen to their claim if they refuse a particular treatment recommendation.   Usually those Nevada injured workers have not noticed improvement in their neck or back injuries after several sessions of physical therapy, medication  and job restrictions. Their treating doctor may then refer the patient for an epidural injection, an invasive procedure.  Or, perhaps the injured worker already  had one or more epidural injections that did not help, and the treating doctor next recommends surgery.  What happens to the claim if the injured worker doesn't want an epidural injection or surgery? 

An injured worker has the right to refuse injections or surgery.  The adjuster or treating doctor cannot threaten to cut off benefits if the claimant doesn't want to risk the side effects of an injection, or simply doesn't like needles, or does not want to undergo surgery. 

However, be aware that there are only several treatment options for neck or back injuries that are routinely authorized by industrial insurers. (Treatment guidelines rarely allow for experiemental or controversial treatments.)  A treating  doctor cannot keep a claim open indefinitely if  the patient is not getting any active treatment and the  injury isn't getting any better or any worse. Therefore,  If there isn't anything else your doctor has to offer you  after you decline particular treatment, your doctor will have to state that you have reached a point of maximum medical improvement (MMI).   

Once you are MMI, the doctor checks a box on the physician progress report to let the adjuster know whether you have a likely ratable impairment and whether you have permanent work restrictions.  The claim then closes because there is nothing left to be done medically for you (except perhaps to prescribe more pain medication).  

I have seen cases where a treating surgeon has reported to the adjuster that the injured worker should not get rated for permanent impairment because the patient refused surgery.   Surgeons are wrong to report that there is no ratable impairment  solely because the patient declines surgery.  If the patient has continuing pain and loss of range of motion,  with positive findings of an injury on a MRI, the patient has a likely ratable impairment, regardless of whether surgery is declined. 

While an injured worker can choose whether or not to have particular treatment, he or she cannot prolong getting compensation benefits if there isn't anything else the doctor can do.  The doctor will usually allow the patient a reasonable period of time (2 to 4 weeks) to decide whether or not to get an epidural injection or to have a surgery.   

--Written by Virginia Hunt, Hunt Law Office

Mileage Reimbursement Should Be Sent in Every 60 Days

 When a claim is accepted, almost all insurers include a form that has a brief explanation of benefits available under Nevada workers' compensation law.  There is a lot of information included, and it is in fine print.  Very few injured workers bother to read it.  However, it does state that an injured worker must send in mileage reimbursement requests within 60 days of incurring the mileage.  

If the injured worker sends in a mileage reimbursement request at the end of the claim, only the mileage travelled within the last two months will be reimbursed.  Adjusters will not remind injured workers who forget to send in reimbursement requests that that the request should be sent every 60 days. 

I tell my clients to try to send in reimbursment requests every month, using one reimbursement request form for each week in which mileage was over 40 miles in one week.  (Mileage qualifies for reimbursement if you travel more than 20 miles one way for medical care. Alternatively, it qualifies for reimbursement if you travel more than 40 miles in any given week going to and from medical care.)   If you send in mileage reimbursement forms each month, the adjuster only has to process one mileage check a month.  It is also easier for you to keep track of what has been reimbursed.   If you need more forms, click here to access the form. 

 --Written by Virginia Hunt, Hunt Law Office

Is Your Insurer Requiring a Psych Eval Before Authorizing Back Surgery?

There is a recent trend among insurers andtheir medical review companies to require a psychological evaluation before authorizing a low back surgery.  Neurospsychologist Louis Mortillaro, PhD is asked to do many of these evaluations for the purpose of determining whether the patient is likely to benefit from a back surgery.  Basically, the insurer doesn't want to pay for back surgery if the claimant is likely to continue to complain of back pain and want more medical care.  Dr. Mortillaro told me that occasionally the evaluation will reveal a more serious problem with drug addiction or a severe underlying psychiatric disorder that will only be exacerbated by a surgery.  

I haven't had any clients denied back surgery following a psychological evaluation.  However, most clients are upset initially that surgery has been delayed until this evaluation is scheduled and the insurer receives the report.  My clients have not found the evaluation to be too intrusive or unpleasant.  Thus far, the local psychologists hired to do these evaluations have been reputable and respective of injured workers.   

The concern that I have with this growing trend is that these psychological evaluation reports may be available to the employer.  Employers are copied on all determination letters by the insurer.  There are a few large, local employers that take a dim view of any employee who gets injured on the job and costs the employer increased work comp premiums.   I would hate to see these employers read sensitive information contained in a psychological report.   Because an insurer can require that and injured worker require a consultation as a condition of continued benefits,  an injured worker may not win an appeal if the worker refuses to attend the psych consult. However, I think an injured worker can require that the adjuster not disclose this report without a subpoena and good reason presented to an appeals officer if it involves a litigated issue. 

--Written by Virginia Hunt, Hunt Law Office

Time Line for Permanent Partial Disability Awards

 30 days after your doctor says you are stable and ratable, your adjuster must send you a letter scheduling your PPD exam.  (The exam however, doesn't have to take place within 30 days.)   NRS 616C.490(2).

14 days after your rating exam, the rating doctor should send the rating report to the adjuster. NRS 616C.490(6).

14 days after your adjuster receives the PPD report, your adjuster must send you a letter either disagreeing with the rating percentage,  or a letter offering the percentage found by the rating doctor. You have 70 days to file a request for hearing if you disagree with the percentage offered. NRS 616C.490(6).

20 days after you send in election papers for the PPD that was offered, the adjuster must send  the lump sum elected.  (The adjuster may claim to have sent the check from somewhere back east on the 20th day and DIR will probably find the insurer in compliance with the law).  NAC 616C.499.

 1 year after you receive your award, the adjuster must pay an annual installment if your PPD percentage was over 25%. and the amount of the installment is less than $100 a month.  NRS 616C.490(8). (Make sure you send a change of address to your adjuster.) 

 --Written by Virginia Hunt, Hunt Law Office

Common Spine Surgeries for Injured Workers

 Before an injured worker undergoes a neck or back surgery, he or she should be familiar with a few medical terms and what specific procedure the surgeon is recommending.   Ask your doctor to write down the name of the surgery, and have him explain exactly what will be done.  If you or your adjuster is requesting a second surgical opinion, make sure you understand whether the second surgeon is recommending a different approach.  The following are a few medical terms and procedures courtesy of materials from the Mayfield Clinic and local neurosurgeon Aury Nagy, M.D. :

  • Discectomy-  surgery to remove herniated disc material that is protruding through the disc wall and irritating the surrounding nerves causing pain.
  • Fusion- joining together two separate bones (vertebrae) to provide stability.       
  • ACDF (anterior cervical discectomy and fusion) - surgical procedure that removes a herniated or degenerative disc in the neck, and fusing the vertebrae above and below the disc space. The spine is approached from the front of the throat area.  The removed disc space is filled with a bone graft and the the vertebrae are immobilized with metal plates and screws.  Bone grafts may come from bone cells taken from your own hip, or from cadaver bone, or man-made substitutes.  Artificial disc replacement is also an option for some patients.  Both neurosurgeons and orthopedic surgeons do this surgery.
  • Foraminotomy-  surgical enlargement of the intervertebral foramen through which the spinal nerves pass.  Bone spurs, called osteophytes, that may be pressing on nerves may also be removed during this procedure.  
  • Posterior lumbar discectomy- surgery to move a herniated or degenerative disc in the lower spine where the surgeon approaches the spine from the back.  An open discectomy involves a 1-to 2-inch incision in the middle of the low back.  A minimally invasive discectomy has a very small entry wound. 
  • PLIF- posterior lumbar interbody fusion
  • ALIF- anterior lumbar interbody fusion where the surgeon accesses the spine through the abdominal area.
  • Laminectomy- this is the surgical procedure to drill a small hole through the lamina (a part of the bony vertebrae) so that the surgical can insert a surgical microscope to view and remove disc fragments.  It may be necessary to do on both sides (bilateral laminectomies).
  • OLIF-  Oblique lumbar interbody fusion.  This is a surgical procedure pioneered by local orthopedic surgeon Andrew Cash, M.D. where the surgeon enters the spine from the back, at an angle, near the pelvis and just above the iliac crest.  Read more about this in the article on Dr. Cash by Brian Sodoma in Las Vegas Life magazine, Spring 2013. 

    --Written by Virginia Hunt, Hunt Law Office

     

 

 

Is Your Insurer Requiring a Psych Eval Before Authorizing Back Surgery?

 There is a recent trend among insurers and their medical review companies to require a psychological evaluation before authorizing a low back surgery.  Neurospsychologist Louis Mortillaro, PhD is asked to do many of these evaluations for the purpose of determining whether the patient is likely to benefit from a back surgery.  Basically, the insurer doesn't want to pay for back surgery if the claimant is likely to continue to complain of back pain and want more medical care.  Dr. Mortillaro told me that occasionally the evaluation will reveal a more serious problem with drug addiction or a severe underlying psychiatric disorder that will only be exacerbated by a surgery.  

I haven't had any clients denied back surgery following a psychological evaluation.  However, most clients are upset initially that surgery has been delayed until this evaluation is scheduled and the insurer receives the report.  My clients have not found the evaluation to be too intrusive or unpleasant.  Thus far, the local psychologists hired to do these evaluations have been reputable and respective of injured workers.   

The concern that I have with this growing trend is that these psychological evaluation reports may be available to the employer.  Employers are copied on all determination letters by the insurer.  There are a few large, local employers that take a dim view of any employee who gets injured on the job and costs the employer increased work comp premiums.   I would hate to see these employers read sensitive information contained in a psychological report.   Because an insurer can require that and injured worker require a consultation as a condition of continued benefits,  an injured worker may not win an appeal if the worker refuses to attend the psych consult. However, I think an injured worker can require that the adjuster not disclose this report without a subpoena and good reason presented to an appeals officer if it involves a litigated issue. 

Problems with Your Vocational Rehab Counselor?

 I was just sharing some war stories on line with other claimants attorneys about our experiences with particular vocational rehabilitation counselors.  There is no question that some counselors do a poor job of assisting injured workers with realistic and fair plans for returning the injured worker to work.  However, the injured worker can make the best of the vocational rehab experience by doing the following:

1. Be sure you understand the rules.

    During your first meeting with your voc rehab counselor, you will learn that you only have 60 days to decide and present a retraining plan to the adjuster.   Make sure you know when that 60 days ends. 

    Your case is assigned to the voc rehab counselor, and your 60 days is running when neither you nor your counselor knows the length of a retraining program that can be authorized.  Nor will you or your counselor  know how much a minimum lump sum buy-out will be. Most injured workers won't get the results of their permanent partial disability rating when they must start working with a voc rehab counselor.  (The percentage of impairment from the PPD rating determines whether you get 9, 12, or 18 months of retraining, and it will determine how much the minimum voc rehab lump sum buy-out will be.)  You must still use this time to investigate whether you will want a retraining program, or whether you will accept money and find yourself another job.

   2.  Keep your expectations realistic.

     The voc rehab counselor is paid by the insurer.  If the counselor doesn't please your adjuster, the counselor won't continue to have a job.  However, good counselors have integrity and will try to do what is right for the injured worker.  Your counselor isn't going to advocate for you like your attorney.  

      if your vocational test results show that you have no math skills, don't expect the counselor to support your desire to be an accountant.  There are many limitations that may apply to you, such as the length of a program that can be authorized for your impairment percentage, your own work experience, your aptitudes for particular programs, whether a program actually exists in Nevada, whether you have had criminal convictions that prevent particular employment, your physical limitations, and your chances for employment when you complete the program.

3.  You want the counselor to want to help you.

     If you miss your appointment with your counselor, or you are disrespectful, then don't expect your counselor to go the extra mile to help you.  Some claimants don't really want to go to school, and they frustrate and waste the time of the counselor by not initially opting for a buy-out instead of a program. 

     When you simply cannot stand your counselor, you may ask for a new counselor, but understand that you have no legal right to have a different counselor assigned to your claim.   Listen to what the counselor recommends for you, and research the training programs yourself instead of depending on the counselor to find a new career for you. 

--Written by Virginia Hunt, Hunt Law Office

Why Nothing is Happening on Your Claim

 Most injured workers who call my office are fed up with delays in getting decent medical care or getting compensation checks from the workers' compensation adjuster.  Here's a list of why you might be having problems:

    1. Your claim hasn't been accepted yet.

     The adjuster handling your claim for your self-insured employer,  or  the third-party administrator handling your claim for your employer's insurer has 30 days from the date she receives the C-4 claim form from your doctor to accept or deny your claim.   If the adjuster or your employer has questions about whether your claim is a legitimate one, there may be an investigation during this time.  If the adjuster calls you to take a recorded statement and has a lot of questions about who was present when you were injured, how you were injured, or whether you had previous injuries, expect a delay.

2. Your claim has been denied.

 If your claim is denied, you don't get anything-  no medical care and no compensation benefits.  You must file a Request for Hearing that comes with the claim denial letter.   A hearing will be schedule in about two weeks from the date you file for hearing.  You must then convince the hearings officer that your claim should be accepted. d

3.  Your adjuster hasn't received requests for care from your doctor.

Unless you have an emergency medical problem, almost all medical care has to be authorized first through the claims adjuster.  Often the delay is caused by the doctor's office not sending a fax request to the adjuster so that a test can be ordered, or physical therapy approved, etc.  Adjusters generally process these faxed requests for medical care within five business days, so don't assume that the delay is caused by the adjuster.  It could be that your doctor's office isn't doing what they should be doing to get you necessary treatment.

4. Treatment guidelines require that the doctor try other treatment first

Doctors familiar with the workers' compensation system know that they must follow particular treatment guidelines.   If an injured worker reports to a clinic with a  shoulder strain-type injury, the doctor won't order a MRI immediately.  The doctor will first want to see how you respond to anti-inflammatory medication and physical therapy.  If you know that you have a serious injury, and you aren't getting any better with therapy, get help right away to select a good doctor from the insurer's provider list.

5.  You've established a bad relationship with the adjuster

Most work comp adjusters have too many claims assigned to them.  If you call multiple times a day or every day, you will just annoy your adjuster and cause further delay on your claim.  You have to make it so that the adjuster wants to help you.   If you have a serious injury, you might want to consider hiring an attorney who knows who your adjuster is and how to get things done.

6.  You haven't submitted the proper forms

Most adjusters require that you send in a Request for Compensation D-6 form in order to get a bi-weekly compensation check.  The adjuster usually includes a blank D-6 form when he sends a compensation check so that you will get paid in the next two weeks if you are still off work.  If you didn't get this form and return it right away, your next check will be delayed.   You can download this form here if  you need one.

7.  Your doctor isn't very good

The most important aspect of your claim is getting the best possible medical care.   A doctor who doesn't listen to you or who isn't actively trying to diagnose your injury will drag things out for weeks or even months.   You know your own body.  If you aren't getting any better and nothing much is happening medically, get a free consultation with an attorney who is familiar with the doctors on your insurer's provider list.  Find out who the best doctors are, and then request a change of doctors.

--Written by Virginia Hunt, Hunt Law Office

Home Health Care by Spouses

After a serious Nevada work accident and hospitalization, the injured worker may require a nurse, then unskilled nursing care at home to go to the bathroom, bathe, and make meals.  This need for home health care often falls through the cracks if the treating surgeon forgets to prescribe attendant care, or the hospital coordinator doesn't follow through getting it authorized with the claims adjuster.  If a nurse case manager isn't assigned to the claim, the adjuster may get the request, but may not  arrange for it on time. What often happens is that the injured worker's family or closest friends must step in to provide home care during the critical time following the patient's release from the hospital or from a surgical center. 

If a spouse or other family member takes time off their own jobs in order to  provide necessary care, they are unfairly losing valuable vacation, family medical leave time, and wages.   On many claims where the injured worker isn't represented by counsel,  there hasn't been any telephone communications between the claimant and the adjuster.  The injured worker and his family expect that the doctor, the  insurance company, or their employer will take care of this need.  Wrong.  You can't just expect things to happen in the workers' comp world.   

The claimant or his family should try to make sure that home health care is authorized and scheduled before the claimant comes home from the hospital or from the surgical center.  It's important also that any home health care agency that supplies home health care bills the workers' compensation carrier so that the injured worker isn't billed for co-pays.  

If you want your spouse or another  family member to get paid for taking care of you, don't wait until after  care is provided to  ask the insurer about reimbursement.  Almost twenty years ago, the Nevada Supreme Court decided that a family member who wants to be reimbursed for providing home health care must request this  from the insurer before providing care.  Additionally, the injured worker must show that a doctor prescribed it as medically necessary.  SIIS v. Snyder, 109 Nev. 1223, 865 P2d 1168 (1993).

In addition to having a physician prescribe home health care,  the adjuster has to be persuaded that your family attendant is a reasonable substitute for unskilled help from a home health care agency.  The amount the insurer must pay for home health care is set forth at p. 4 in the Nevada  fee schedule, and the insurer will not pay a family attendant more than it would have to pay for outside agency help.  

I have had cases where I have been retained after a family member has provided attendant care without requesting preauthorization.  Some adjusters are willing to pay a reasonable amount of money, not to exceed the fee schedule, after the fact.  However, the better practice is to ask for it before it is necessary.  NRS 616C.440(1)(c) is the statute that allows for attendant care expenses on a claim.

--Written by Virginia Hunt, Hunt Law Office

Suspended Benefits for a Non-industrial Medical Condition

Some injured workers are delivered a low blow by their adjuster when their treating surgeon for their Nevada work comp injury finds that they first take care of a unrelated medical problem before surgery can go forward.  For example, many hurt workers will find that their blood pressures spike from being in pain from the severe work injury, particularly if they have had borderline or high blood pressure in the past.  A primary care doctor performing the pre-surgical clearance may want a cardiologist to run some more diagnostic studies, such as a treadmill stress test.   Clearance can then take weeks.   Meanwhile, the adjuster sends a letter that the injured workers benefits will be suspended until the patient is cleared for surgery. 

I have successfully argued that this practice is wrong.  Hearings and appeals officers generally agree that the correct interpretation of NRS 616C.230(5) on suspension of benefits allows the injured worker to avoid suspension if he shows that he did everything as quickly as possible to take care of the nonindustrial medical problem.  The problem is that it takes an appeal,  reversing the insurer's suspension of benefits to get the injured worker paid.   Many injured workers are intimidated by the appeals process and just go without benefits during the weeks it takes them to get surgical clearance.   My recommendation is that you get surgical clearance as quickly as possible, show the adjuster that you are doing things quickly, and file an appeal of any suspension of benefits.

 

Obtaining appointments with a primary care doctor or a specialist to treat an underlying, unrelated medical condition can take weeks.

Are They Calling Your Herniated Disc a Lumbar Strain?

There is a renewed trend among particular self-insured employers and third-party administrators (TPA's) in Nevada to send a Notice of Claim Acceptance for "lumbar strain only" on  low back injury claims.  My fellow claimants'  attorneys are also noticing an increase in claims where adjusters are denying medical treatment for a herniated disc,  because the claim was accepted for a "lumbar strain" and the injured worker didn't file a timely appeal.  

For those workers who truly have a lumbar strain, a  claims acceptance letter for a "lumbar strain"  isn't likely to be a problem.    However, the the claims acceptance letter must be sent by the adjuster 30 days after getting the C-4  Claim for Compensation from the first doctor.  It isn't likely that the injured worker or even  the adjuster will know whether a low back injury is a strain or something else at that time. 

It's rare for a work comp adjuster to authorize a MRI  during the first 30 days of the claim, or even within the 70-day time to appeal the limiting language in acceptance letter.  A  MRI is necessary to diagnose a disc injury.  If a herniated disc is diagnosed later, the adjuster may refuse to authorize any treatment that isn't treatment for a lumbar strain.

 According to local neurosurgeon Aury Nagy, M.D., 70% of patients with lower back pain get better with physical therapy and steroids in about 6 weeks.  When the patient isn't better, an MRI is  done.  The MRI must be authorized by the adjuster.   If the MRI shows a herniated disc,  where the gel-like material within the disc is bulging or has ruptured and is pressing on a nerve, then a surgery may be necessary.  The patient may need a discectomy to remove the damaged disc.  If the  spine is also unstable, a fusion may also be necessary. 

Physicians must  ask the adjuster for authorization to do injections or to surgically treat a herniated disc.  Some adjusters are now including the "lumbar strain " language of almost every claim acceptance letter for low back injury.  Obviously, it isn't fair to the injured worker for the adjuster to deny requested treatment for a herniated disc that isn't diagnosed until later in the claims process.  The fact that adjusters are using this unfair tactic frequently now tells me that it is working for the adjusters.  Surprisingly few injured workers get legal help when this happens.

These are often winnable cases when the claimant files an appeal after hiring an attorney, even after the time has passed to appeal the "lumbar strain only" acceptance letter.  If your orthopedic surgeon or your treating neurosurgeon tells you that the adjuster denied authorization to treat your herniated disc because only a lumbar strain was accepted on your claim, get an attorney consultation immediately to discuss the facts of your particular case. 

--Written by Virginia Hunt, Hunt Law Office

Cost of Rating Exams Up Again: Get It Right the First Time

     Effective February 1, 2013, the Nevada fee schedule that governs health care providers under the Nevada workers' compensation system, raised the PPD (permanent partial disability) reimbursement to $718.96.    If the rating physician is rating more than two body parts, he or she can charge an additional $240.11 for each additional body part.  For example, the fee schedule states that the cervical spine constitutes one body part, the thoracic spine another body part, and the lumbar spine constitutes a separate body part for rating and billing purposes.  If an injured worker has injuries to the neck, the low back, and to the right wrist, the rating physician's bill will be $959.07.

     Injured workers who disagree with the first rating or the percentage offered by the industrial insurer must pay these same rates when they obtain a second rating by following the procedure in NRS 616C. 100.  With these high costs, it is essential that the injured worker gets a fair and accurate rating the first time around when the insurer must pay for it.  Although the law allows a hearings or an appeals officer to order an insurer to reimburse an injured worker for a second rating if the second rating is found to be more accurate, there are no guarantees that a second rating will result in a higher percentage, or that a hearing or appeals officer will agree that the higher percentage is correct. 

     It is difficult for Injured workers to find an extra $718.96 to pay for a second exam,  even if they are likely to be reimbursed.  Also, it takes time to file appeals and contest the first rating, and the injured worker cannot accept the disputed first percentage in a lump sum while litigating the first percentage.

     Here are a few things I may do representing an injured worker do to get the first rating correct:

  • Ask the adjuster to agree with me on which of the 145 doctors on the DIR's rating list will evaluate the client.
  • Make sure that the rating physician is rating all accepted body parts. 
  • I go with the client to the rating with a copy of the medical records, so that if the doctor is missing an important record, like an operative report, I have a copy ready.
  • I know the AMA Guides and am prepared to discuss complex issues such as apportionment of pre-existing conditions or how a particular body part should be rated.
  • I obtain a copy of the rating evaluation as soon as it is done so that I can resolve any problems by writing to the rating doctor before the adjuster sends a determination letter.
  • I may have the rating report reviewed by a rating doctor at a cost less than the full cost of an exam to confirm a suspected error and then ask the rating doctor for an addendum.
  • I prepare a persuasive argument for the hearing officer after filing an appeal that the first rating is wrong under the AMA Guides, and ask that the insurer be required to pay for a second rating.
  • Finally, if I think the first rating is incorrect and that the second rating phsycian who is assigned by the DIR is likely to find a higher percentage, I file an appeal and schedule a second exam.

   

--Written by Virginia Hunt, Hunt Law Office

Does An Injured Worker Have to Go to Their Doctor?

     Injured employees in Nevada have a limited right to choose a treating doctor.  The workers' compensation insurer or third-party administrator for the employer has a list of doctors that have contracted to provide medical care at reduced fees.  Once the injured worker's claim is accepted, he or she has the right to ask for a different doctor on the provider list.  If the request is within the first 90 days of the claim, the adjuster handling the claim must approve the request.  Requests to change doctors made after 90 days can be denied, but the law says that the adjuster should have a good reason for the denial.  NRS 616C.090.  

     An injured worker who successfully changes her treating doctor may be surprised weeks or months later to get a letter from her adjuster scheduling her to see a different doctor for a consultation appointment.  That usually happens when the adjuster doesn't agree with the treatment recommendations of the treating doctor.  This type of consultation might also be scheduled when the treating doctor has taken the injured employee off work for a long time.  

     Nevada law does give insurers and employers the right to require a consultation appointment with a doctor chosen by the employer or insurer from the insurer's provider list.  This consultation examination is sometimes known as an IME (independent medical examination).  The letter from the adjuster  that notifies the injured worker of the appointment date and time will state that the injured worker's benefits will be suspended if he or she does not go to this appointment.  NRS 616C.140 (5) states that if the employee refuses to go to the exam or obstructs the exam, compensation benefits can be suspended by the insurer until the exam takes place.    

    The letter from the adjuster will also tell the injured worker that he or she has the right to file an appeal if they disagree with the consultation.  If this is the first time the insurer or employer has scheduled the employee for a consultation, a hearings officer is not likely to reverse the insurer's determination to require the consultation.  However, I have had cases where the insurer has scheduled several consultation examinations in an obvious attempt to get a particular opinion from a doctor.   If the number of consultations is unreasonable or the insurer is making unreasonable demands concerning cross-country travel to a consultation, a hearing officer will side with the injured worker.  Adjusters who schedule multiple consultations are usually gearing up to deny something- beware.

--Written by

More Unfair Tactics Against Nevada's Injured Workers

 The most important benefit under the Nevada workers' compensation system is the injured employee's right to get medical treatment.  I have prior blog posts about the limitations on that right that are written into Nevada law, such as the limited right to choose a treating doctor.  I also just wrote about insurers' attempts to deny an injured employee's right to change doctors by directing care to doctors who will release the patient from care within the first 90 days of the claim.  

In the past two months I have seen two insurers get even bolder by writing directly to the treating doctor and telling him to change his diagnosis to the  diagnosis accepted by the insurer.  For example, two clients with low back injuries were diagnosed with disc injuries as well as lumbar sprains by their treating doctors.  The administrator in both cases sent claims acceptance letters to the injured worker, stating that the claim was accepted for "lumbar strain only".  When the insurers saw the bills from treating doctors and physician progress reports that referenced a disc injury and a lumbar strain, the insurer wrote to the doctor advising him that the insurer was only going to pay for treatment for a lumbar strain.  

The injured workers were copied by the insurers on the letters that were sent to the treating doctors limiting treatment and payment of the bill to only a lumbar strain.  However, In one case, this letter to the doctor wasn't sent until months after the doctor had listed the disc condition on every physician progress report as one of the diagnoses.  The insurer had also specifically authorized and paid for injection treatment for the disc condition. It was evident that the insurer was trying to limit the diagnosis now that the claim was closing so as to avoid an impairment evaluation or a higher impairment rating.

In the second case, the insurer wrote to the doctor at the very beginning of the claim, and the insurer wanted to make sure that the only treatment the injured worker got was treatment for a strain.   In both cases, the copies of the letters to the doctors confused my clients.   It wasn't clear at all to them that what was happening was an attempt by the insurer to limit  their medical treatment  in the future or now, and an attempt to limit any impairment due to the work accident.

If you get a similar letter from the adjuster, or are copied on a letter the adjuster sends to your doctor trying to limit your claim, don't ignore it. You owe it to yourself and to your family  to understand  what is happening on your claim and how to obtain the best possible medical care under Nevada law. 

--Written by

Are Hernias Ratable?

 Inguinal hernias are common work-related injuries for men, often caused by increased abdominal pressure during heavy  lifting. According to the November/December 2012 AMA Guides Newsletter, men have a 27% lifetime risk of an inguinal hernia.  Genetics, overall body conditioning, and development of a person's abdominal musculature have a lot to do with risk of a hernia.

 If an injured worker feels sudden pain and immediately notices a protrusion in the abdomen, and the worker promptly reports the injury, a claim is usually accepted.  It is when the injured worker delays in reporting the injury that the workers' compensation administrator and employer question whether the hernia was caused by job activities.  The injured worker can avoid problems simply by speaking up immediately following a work injury and by following the procedures for filing a claim.  

Surgery, usually involving a mesh repair,  is scheduled quickly after a claim is accepted.  Most surgeons take their patients off heavy physical work for at least 7 to 14 days.  Most surgeries are successful, and there is no remaining protrusion or defect that can be felt in the abdomen.  A successful surgery should not entitle the injured worker to a rating evaluation.

If,however, the surgery was not successful, and there is still a protrusion or palpable defect, the injured worker may have a ratable impairment under the AMA Guides to Evaluation of Permanent Impairment 5th Edition.   A rating is not scheduled simply because there was a surgery.  Nor is a rating scheduled because a treating surgeon gives the injured worker some permanent work restrictions.  

In order for there to be a ratable impairment under the AMA Guides, there must still be a protrusion or palpable defect present when the rating physician does a physical exam.   If the hernia surgery was done correctly, there shouldn't still be a protrusion or palpable defect unless there were complications.  The extent of the palpable defect will determine the class of impairment.  For example, a slight protrusion would place the claimant in a Class ! impairment, allowing the rating doctor to assign 0 to 9% whole person impairment.  

Secondly, in addition to a remaining palpable defect, the rating doctor must determine the extent to which the hernia interferes with activities of daily living.   If the hernia does not interfere with most activities of daily living, the rating doctor would place the impairment at the lower end of a Class I impairment.  

Most injured workers who have asked whether they should be rated for impairment complain about pain that never subsides after the surgical repair.  While they may not have a remaining protrusion or palpable defect,  it is possible that a rating doctor might find a small percentage of impairment for a  nerve entrapment in the abdomen after their hernia repair.   

If you have an accepted claim for an inguinal hernia, and you question whether you should have a rating evaluation, the first step is to obtain a complete copy of your records from your treating surgeon. Do that quickly.  Then ask a knowledgeable attorney to review your records for an opinion whether you do or don't have a likely impairment under the AMA Guides.   Keep in mind that you only have 70 days to file an appeal of the insurer's determination letter to close your claim without a ratable impairment.  

Change Doctors NOW !!

Nevada law requires third-party administrators and self-insurers of workers' compensation claims to send accepted claimants a notice of their right to choose a different doctor from the appropriate provider list.  Not all TPA's and insurers are sending this notice.  If they do send it, most injured workers don't read or understand how important it is to choose a different doctor before their claim is closed.

I have been seeing too many  claims where adjusters are trying to deprive injured workers of their right to change doctors by having a doctor close the claim within the first 90 days of the claim.  What usually happens is that the injured worker is first directed to go to Concentra for initial medical care and to complete the C-4 Claim for Compensation form.   If the injury persists after 45-60 days, the adjuster sends the injured worker a letter  transferring their care  to a doctor the adjuster chooses.  These doctors are usually physiatrists-   physical medicine specialists who treat occupational injuries by prescribing therapy and medication, or by giving injections. If the injury is very serious, these doctors can request a consultation exam by a surgeon.  These doctors have agreed with insurers to treat at rates below the Nevada fee schedule in exchange for a  volume of business.  Their relationships with adjusters, and self-insurers  are  important to their businesses.  If an adjuster doesn't like it that the doctor is taking patients off work too much or is finding that claimants should be rated for impairment, the doctor is quickly removed from the provider list and loses business.

Injured workers have the right to change doctors within the first 90 days of the claim.  The injured worker must attend whatever consultation exams the insurer schedules, but within the first 90 days, the worker can refuse treatment with the doctor chosen by the adjuster and ask for a different doctor.  The catch is that the alternate doctor must be another doctor  on the insurer's provider list.  The worker must also know to request a copy of the provider list.

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Mileage Reimbursement Increase for 2013

Effective January 1, 2013, the mileage reimbursement payable pursuant to NRS 616C.150 is increased one cent per mile from 55.5 cents to 56.5 cents.

The rules for reimbursement remain the same.  If you travel more than 20 miles one way for authorized medical care (including therapy, diagnostic testing, office visits to the doctor), you should complete the reimbursement form.  You also qualify if you must travel more than 40 miles in a given week for medical care.  Group your visits on the reimbursement form by the week so that the adjuster can easily see that you qualify.  Use map quest to calculate your mileage from your home or work to the medical provider.  Do not wait until the end of your claim to send in the reimbursement request forms.  The reimbursement request form must be sent in within 60 days of your qualifying travel.  keep a copy of the form that you send to your adjuster.   Give the adjuster at least two weeks to send a reimbursement check to you.

Treating Pain with a Video Game

 Many of my clients with very severe injuries must learn to accept that they will live with pain the rest of their lives.  After they exhaust all that doctors have to offer and realize that there is no "fix", these clients either adapt and live reasonably happy and productive lives, or they stay miserable.  How individuals adapt and move forward while they feel pain every day is fascinating to me.  My job as a lawyer is not to provide medical treatment or medical advice, but I like to share what I learn on this subject.

I was watching the TV program Rock Center with Bryan Williams two weeks ago when a piece came on about a virtual reality video game that was created to distract patients' brains from sensing pain during painful medical treatments.  The show featured a disfigured service man who was severely burned and who had to endure excruciating procedures to treat his burns.  The usual opiate medications used to treat pain simply weren't enough.

The virtual reality  video game, called Snow World, had the burn patient wear headphones and a headset to immerse him in a peaceful, snowy landscape where he was required to lob snow balls at penguins and other animals.  An  MRI of the patient's brain  gave objective proof that the patient was truthful when he said that he felt significantly less pain when he was playing the video game. The show also featured researchers applying a  mildly painful heating device to the reporter's foot before and during her playing the video game.  She also was convincing in her statements that her pain was almost eliminated when she was focused on playing the game.  

If you would like to learn more about this, here is one link:   http://www.hitl.washington.edu/projects/.

I intend to research this further and ask local pain management physicians whether they have any information about using this device to treat chronic pain, and who locally is using it.   The University of Washington link above also has research papers on using the game to treat post-traumatic stress disorder, and fear of spiders. Interesting.

 

More Money: Don't Miss These Benefits

 A few of the benefits that Nevada injured workers overlook include the following:

1. Prescription coverage

 Make sure that your pharmacy has your claim number, and the phone and fax number for your adjuster.  If the adjuster sends you a pharmacy card, be sure to use it.  If your pharmacy tells you they are waiting for authorization and you can't wait, pay for the medicine and send your adjuster the receipt. Don't confuse the issue by using your private insurance.     

2.  Mileage Reimbursement 

If you travel more than 40 miles a week, or 20 miles one way, to your doctors' appointments, and to therapy, right now the mileage reimbursement rate is fifty-five cents (55 cents) a mile.  A common mistake is to wait more than 60 days to turn in the request for reimbursement form.  Turn in the forms each month after making a copy for yourself.  

3.  Concurrent Wages           

 If you were working for two employers on the date you were injured, you need to make your adjuster aware of that by sending in paycheck stubs for that second employer.  Send paycheck stubs for three months before the date of your accident.

4.  Wrong Average Monthly Wage

When you receive the adjuster's letter advising you what your daily benefits will be, look carefully at the amount the adjuster says is your average monthly wage.  Ask for the wage verification form your employer gave the adjuster to check it against your old paycheck stubs.  There are various ways to calculate average monthly wage. If yours seems too low, get a free consultation with a knowledgeable lawyer.

5.  Low permanent impairment award

Unless you are familiar with the AMA Guides to Evaluation of Permanent Impairment, fifth edition, there is no way you will know whether the percentage found by the rating doctor is correct or not.  There is no excuse for accepting a low PPD award without first getting reliable information about whether the percentage and the way the lump  sum is calculated is correct.  Many workers' compensation attorneys will review your PPD award election papers for free.  

--Written by

Complex Regional Pain Syndrome

How to treat chronic pain was a topic addressed by several of the featured speakers at the WILG convention in Las Vegas this weekend.  (WILG is a non-profit organization that assists attorneys in advocating the rights of injured workers.)  Dr. Steven Simon, M.D. of the Kansas University Medical Group spoke about CRPS complex regional pain syndrome.  He defined CRPS as an inciting event (usually trauma, but sometimes  immobilization) to a a nerve that then moves into the spinal cord where it becomes a systemic  chronic pain problem. 

Dr. Simon stressed that the earlier the problem is diagnosed, the better the patent's chances were for a successful treatment orientation.   He acknowledged that many treating orthopedic physicians were not knowledgeable enough about treating  chronic pain systems consisting of depression,  anger, sleep deprivation, hormonal deprivation, and pain. When the patient doesn't get better and the cause of the problem is not readily identified using traditional diagnostic methods, the adjuster likewise becomes frustrated and schedules an independent medical exam. That results in more delays in getting the injured worker to an appropriate physician to treat the CRPS.   Many CRPS sufferers find that an attorney advocate is necessary to ensure proper treatment and a fair impairment evaluation.

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Chronic Pain: New Help with Peripheral Nerve Surgery

 A featured speaker at the WILG convention today was Dr. TimTollestrup, M.D., a Las Vegas physician who specializes in peripheral nerve surgery.    Dr. Tollestrup had recently operated successfully on one of my clients with a crush injury to his foot,  so I was interested in knowing more about him and his approach to treating difficult chronic pain cases.  Dr. Tollestrup is one of only several surgeons in the country who focuses on eliminating chronic pain by applying accepted surgical techniques to peripheral nerve decompression or segmental denervation (cutting a peripheral nerve to interrupt the pain response.) 

Peripheral nerves are all of the nerves in the body other than the spinal cord.  Dr. Tollestrup explained that most physicians, including orthopedic surgeons,  have very little training in the anatomy of the peripheral nerves.   When patients have severe pain lasting longer than six months following an injury or surgery to a knee, shoulder, elbow, hand or foot, a compression, stretching, laceration, or crush-type njury to a peripheral nerve may be cause of the chronic pain.  Surgery to treat the peripheral nerve injury may successfully eliminate the pain completely.  

Dr. Tollestrup stated that it was very satisfying to be able to  provide  relief  to a patient who may have had to take  narcotic pain killers for months or even years.  He also confirmed that it was very  frustrating to chronic pain patients to be passed from one doctor to another after unsuccessful pain management.

X-rays, MRI's, EMG and nerve conduction studies, are not very helpful in diagnosing  a peripheral nerve injury according to Dr. Tollestrup,  Instead, he depends on taking a careful history of the problem from the patient and on a hands-on clinical examination.  Peripheral nerve surgery is a relatively new field, and additional research must be done before it can be applied to treat spine pain. tt was particularly exciting to learn about its success in treating  complex regional pain syndrome and other types of chronic pain that have been baffling to physicians treating injured employees.  Dr. Tollestrup's website is www.nervepain@tollestrupmd.com.

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Post-Traumatic Stress Research

Here's an intersting article on PTSD:that sheds some light on why subsequent events that are minor can trigger such a strong reaction in the PTSD patient.   http://psychcentral.com/news/2012/10/08/mice-study-suggests-brain-switch-implicated-in-ptsd/45723.html?

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Untaxed Tip Earnings Included in AMW

     In Sierra Nevada Administrators v. Negriev, the Nevada Supreme Court held that when an injured employee reports tip income to his or her employer, that income is included in the average monthly wage calculation.  The average monthly wage calculation is used to determine how much an injury worker receives for compensation benefits. 

     The injured worker in this recent case was a bartender at a sports pub. He reported his tip income to his employer, but the employer did not include the tip income on his paycheck.  While the bartender reported his tip income to his employer, he did not include his tip income on tax returns filed with the  IRS. The court said it was irrelevant whether the injured worker actually paid taxes. The key was that the bartender had actually reported his tips to his employer.

   Remember that the average monthly wage is a factor in calculating the permanent partial disability award as well as the compensation benefits due when lost time compensation is paid.  Make sure that you discuss your average monthly wage with any attorney you see for a consultation  so that the attorney can check for legitimate increases that may have been overlooked. 

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Questions You Absolutely Must Ask the Surgeon

     Unless you have a very obvious surgical problem, it usually takes two to three months for the adjuster on your worker's compensation claim to schedule a consultation with an orthopedist or a neurosurgeon.   I like to remove my clients quickly from the clinic mill, with a request for change of physicians right away.  Otherwise, the  clinic doctor waits months to request a surgical consultation after  physical therapy hasn't made you better, and after  the clinic doctor finally gets a MRI .

     If you have a knee or shoulder injury, the consult is with an orthopedic doctor on the insurer's provider list.  If you have a low back or a neck injury, the consult may be with either an orthopedist or a neurosurgeon.  If you or your attorney has not done so already, ask for a copy of the insurer's provider list, and get help in selecting the best surgeon.  Don't rely on the insurer to choose the best surgeon for the consultation.     

      Surgeons are very busy, and you want to be prepared to get answers.  Copy the questions below and bring them with you, along with your MRI films.

1.  Do you think surgery is necessary?

2.  Can my injury be treated without surgery? 

3.  What can go wrong if I get surgery? 

4.  If I don't have surgery, will my condition get worse? 

5. How long do you expect me to be off work after surgery?

6.  Do you think I will be able to go back to my regular job, or will I have permanent work restrictions?  

You are entitled to get a copy of the surgeon's dictated report by requesting it from your adjuster, or ask the surgeon's office directly.  It takes about a week to ten days for the report to be dictated.

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Average Monthly Wage Increased for Fiscal Year 2013

 For Fiscal Year 2013, which begins on July 1, 2013, the maximum average monthly wage used to calculate workers' compensation benefits will be increased to $5,222.63.  This is applicable to injuries on claims filed after July 1, 2013.  If you have a claim established already, this increase will not affect your benefits.  The maximum temporary total disability benefit in Nevada is 66 2/3 of the maximum average monthly wage. So, if you are out of work for a month and file a claim after July 1, 2013, the most you would receive in compensation benefits for the month is $3,481.75.  If you earned less than the maximum average monthly wage at the time of your injury, you will receive 66 2/3 of your actual earned wages. Click on the category Calculating Befits to your left for more details on how benefits are calculated.  

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Will Accepting a PPD Award Affect My Job?

Question by an injured worker:  Will accepting a permanent partial disability (PPD)  award affect my job?   

Answer:  It shouldn't.  Having permanent work restrictions may affect your job, but your accepting a PPD award shouldn't.   Here's why.

 PPD awards for injured workers with Nevada workers' compensation claims are based on a combination of three factors : the age of the injured worker, the wages the worker was earning at the time of his injury, and the percentage of impairment determined by a rating doctor.

The rating doctor must use a book published by the American Medical Association called The Guides to Evaluation of Permanent Impairment.     Current Nevada law requires that rating doctors use the Fifth edition even though the AMA has published new editions. You may purchase the Guides and other books and newsletters about the Guides at  www.amabookstore.com.

The Guides tell the rating doctor how to examine the injured worker, how to measure lost motion in joints, and how to calculate a percentage for anatomical, physical impairment. The factors used   to calculate the  percentage of whole body impairment  are not related to what the injured worker does for a living.  The plumber with partial amputation of his thumb will get the same percentage of impairment as the clerical assistant with a similar amputation.  However, the amount of money offered for the PPD award also depend on the claimant's wage at the time of injury as well as the injured worker's age.  

The word "impairment" often confuses people. Some employers  do not understand at first that an injured worker can be entitled to a PPD award under the Guides even though they might also have a full duty work release from the treating doctor.   Instead of the PPD report, the employer should rely on the treating physician's last progress report with the permanent work restrictions or the full duty work release.  

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Speak English, Please

 Thank you to the International Vocational Rehabilitation Counselors Association for inviting me to attend their educational conference last week. It was hosted by certified counselors Gerry Davis, Cindi Rivera, and  retired counselor Jack Dymon at the State of Nevada Bureau of Vocational  Rehabilitation.   The focus of the conference was working with multi-cultural groups, and educational and training resources for clients with limited English ability.  

I  need to be aware retraining  programs that are  suitable for my clients who have limited ability to read, write and speak English, and most retraining programs in Las Vegas require that the student learn in English.  With our growing Hispanic population, trying to find a suitable retraining program is a huge ch allege for vocational counselors and the attorneys who represent them.  The second half of the program features vendors of retraining programs that offered some retraining in Spanish and that also had ESL programs available to their students. Those vendors that attended were PITA (Professional Institute of Technology and Accounting), Fastrax Training Center, and The Academy for Human Development.

After hearing about the various ways that the schools were trying to adapt to a growing non-English speaking clientele, it was interesting that all speakers who attended the conference put forth the message that it is essential that all injured workers learn to speak, read and write English.  There is simply no  funding or appetite by insurers or employers to accommodate injured workers who do no put forth a significant effort to improve English skills so that they may participate in existing programs.   Those schools who do provide extra resources, such as bilingual instructors, emphasize that English is essential for success in the work place. 

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Can You Be Fired While You Have a Nevada Comp Claim?

Both employers and injured workers are unsure about the law on firing an injured worker who is actively treating with a doctor on an accepted workers' compensation claim in Nevada.  Most people know that an injured worker cannot be fired simply because he or she files a claim for workers' compensation benefits. There is an old case from the Nevada Supreme Court that allows an injured worker to sue his employer for money if he can prove that the employer fired him for filing a workers' compensation claim. Not too many employers are apt to make the mistake of not having some other reason, real or not, for terminating an injured worker.   In the past, I've only encountered one employer who wrote on a termination notice that  the employee was fired because he "filed a comp claim".  

Most job terminations instead  result from an injured worker not wanting to work temporary light duty work that the employer offers to accommodate the physical restrictions given by a doctor.   If the temporary light duty  work is mindless, and it's a hassle for the injured worker just to get to work, bad feelings quickly develop between the employer and the injured worker.

It may seem like the light duty job is punishment  for getting hurt at work and filing a claim.  And maybe the employer's light duty work program is a thinly veiled threat to employees not too file claims or to get hurt at work.  But, the law only says that  permanent light duty job offers cannot be demeaning and degrading.  Permanent light duty jobs have a completely different set of rules.

Employer can create "special jobs" just for injured employees with open compensation claims and point to statistics that show that injured workers on light duty get better faster.    That  means that the employer can have a policy or rule that injured workers who refuse temporary light duty (and who don't have any FMLA, or vacation or personal time left) can be disciplined, including fired.

In general (and you should  seek individual  legal advice for your circumstances), Nevada employers can and will fire  employees who are working light duty jobs after their job accidents if they have a good reason for firing the employee.  Again, common reasons given by employers pertain to the employee  for not showing up for light duty  work, calling in sick too many times,  and not performing the light duty job.

The present statute allows insurers to deny compensation benefits to injured workers who are fired while working temporary light duty,   if the insurer denies compensation benefits within 70 days after learning about the job termination.  Benefits should only be denied if the injured worker was fired for gross misconduct., but insurers routinely deny benefits for any kind of job termination and bet on the employee not appealing.  

Employees who complain that their injuries prevent them from going to work at all, need  to be aware that their employer is entitled to rely on the  treating physician's progress report . If that report says the patient can work with restrictions, and the employer offers such work, the injured worker won't win any  battles that depend on self-serving statements of his inability to work light duty,  Employers, and hearings and  appeals officer will  rely almost exclusively on the physician progress report. For example, if the progress report doesn't restrict  the number of hours an employee can stand at work, the employer can assume that the employee can stand for his entire shift.  

The injured worker must make sure that the treating doctor is aware of what kind of work the employer is likely to offer so that they injured worker can request  restrictions that make sense. Instead of complaining  to the employer that he cannot do temporary light duty work, the injured worker should quickly return to see his physician to discuss any necessary  additional restrictions.  Meanwhile, the employee should try to do the light duty work.  Not showing up for light duty work may get the employee fired, and it will be a legal fight to get benefits.  

I have had a lot of success in obtaining compensation benefits for employees who are fired during temporary light duty.  Employers and insurers don't always know or follow the law.  However, an injured worker doesn't want to go without a paycheck or a comp check while filing an appeal.  The best course is to show up for the temporary light duty job, get any necessary additional restrictions from your doctor, and to quickly get a free consultation with a lawyer to discuss your particular case. While you still may have to do some kind of temporary light duty eventually, your attorney may be very helpful in guiding you through these problems. 

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Problems Obtaining Prescription Drugs

 

 

If your claim is accepted and your authorized treating physician prescribes medication for you, but your pharmacist tells you that there is a problem, follow these steps

  

1. Have a copy of your claim acceptance letter with your claim number and name and address of your third-party administrator or insurer in hand when you go to the pharmacy.

2. Do not confuse things by giving your pharmacist your health insurance card.  Instead, you want the workers' compensation carrier billed.

3. If the pharmacist tells you that your prescription has been denied, pay for the medication so that you can get it started if it is essential that you start it right away.  For example, it you just had surgery and need an antibiotic, don't wait.  Or, if you need pain medication right away, just get the medication, and then straighten out the problem.  It can take a day or two to get medication problems resolved, so don't drive yourself crazy by not getting the medication if you can afford it.   Keep a copy of the receipt that shows what medication you paid for, and send it to your adjuster, requesting reimbursement. 

4. Call your adjuster or fax or email the name of the medication, who prescribed it, and the name and phone number for your pharmacy.  Don't just leave a message or complain that you didn't get your medication authorization. Make sure you give the adjuster information she can use to fix the problem. 

5. If you have a nurse case manager assigned to you case, instead of calling the adjuster, you can call the nurse case manager. She is likely to be more familiar with what the doctor prescribed, and may be able to help you quicker. Again, give her your pharmacy phone number.

6.  Expect delays if the medication ordered is an expensive proprietary formula, as the insurer may question why generic wasn't prescribed, or whether other medications were tried first.  Maybe your doctor can give you some samples to start if he knows that insurers usually drag their feet on authorizing this particular medication. 

Unfortunately, I expect more problems in the future obtaining medication for injured workers.  According to an recent article in Business Insurance, there is a growing trend among states to creating medical guidelines for doctors prescribing opioid pain medications to workers' compensation claimants.   Additionally, many insurers now use intermediary companies that involve another step in the authorization process, and thus, more delays.

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Undocumented Workers Are Entitled to Most Work Comp Benefits

Injured workers in Nevada who do not have proper written proof of their right to legally work in the United States are entitled to the same benefits as any other injured worker, except for vocational rehabilitation benefits.  All injured workers are entitled to medical care for a work-related injury while working for a Nevada employer, even if they are working in the United States illegally. 

The injured worker does need to be able to prove that he was working for a Nevada employer at the time of the accident at work.  That may be difficult if he is paid cash instead of a proper paycheck.

Assuming that the worker lied to the employer about immigration status to get the job, the worker is nonetheless entitled to medical and most compensation benefits once the employment relationship is proven.  

In addition, undocumented workers may receive temporary total disability benefits, payable at 66 2/3 of their average monthly wage, up to the state maximum, if they are taken off work by their treating physician as a result of the work accident.   These compensation benefits are also payable if the employer is unable to provide temporary light duty employment while the injured worker is treating for his injury.  Even more surprising to most undocumented injured workers, they are entitled to receive a permanent partial disability award at the end of treatment  for any permanent injuries.  

What undocumentated injured workers  may not receive are vocational rehabilitation benefits.   Only injured workers who have an Employment Eligibility Verification Form I-9 that can be verified, are  entitled to a continuation of bi-weekly checks while he or she participates in a retraining program.    And, only documented injured workers may request a vocational rehabilitation lump sum buy-out if they chose not to participate in retraining.   

Most workers' compensation attorneys offer a free consultation to reveiw your particular case to advise you.   Don't make the mistake of thinking that you cannot get proper medical care or compensation benefits or  an award just because you are in the United States working illegally.  Call for a free Guide to Nevada Workers' Compensation Law in Spanish.  (702) 699-5336.

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Benefits Unfairly Suspended? Fight Back!

Workers' compensation insurers and their TPA's often suspend compensation benefits when an unrelated  medical problem  surfaces to delay surgery or  treatment for the work injury.  Insurers call it "Care Interrupt". I call it kicking an injured worker when he's already down.

For example, I had an injured worker last month who was scheduled for a work-related back surgery.  She was already receiving TTD benefits when her surgery was scheduled for the following week.   She had to get an EKG done as part of the usual pre-surgery clearance.  Her EKG was slightly abnormal and her doctor thought she should have a cardiac treadmill stress test just to make sure she didn't have a heart problem before she underwent back surgery.   It took her almost four weeks to get an appointment with a cardiologist to get the stress test done and to have her primary care doctor review it and give the workers comp doctor clearance for the back surgery.

When the work comp adjuster heard that she had an abnormal EKG, my client's TTD benefits were suspended until she gave the work comp doctor surgical clearance.  I successfully argued before a hearings officer that the adjuster was wrong in stopping  benefits,  because my  my client did everything as quickly as she could to get surgical clearance. 

I argued this issue before the Nevada Supreme Court years ago, and the Court agreed with me that suspension of benefits is wrong under  NRS 616.230(5) when the injured worker is not deliberately delaying treatment for the work injury.  Unfortunately, the Court did not publish that decision. The  Court  does not publish its decision in every case, and an unpublished opinion cannot be cited as legal precedent.  This means I have to present this same legal argument in each new  case, and that insurers keep suspending benefits, betting on the fact that most injured workers don't pursue an appeal.  

If your benefits are suspended because you  need medical treatment for an injury or illness that is not work-related, make sure that you talk to an experienced attorney.  Each case is different, but many suspensions for "care interrupt" can be reversed on appeal.  Fight back!

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Am I Entitled to a PPD Award If I'm Released Full Duty?

 Injured workers, employers, and even doctors on workers' comp provider lists in Nevada remain confused about whether an injured worker who is able to return to work full duty is entitled to a permanent partial disability award.  Depending on the injury, an injured worker may be entitled to a rating evaluation and an award,  even though the worker has been released to return to his pre=accident job without any permanent work restrictions.

The criteria for determining whether an injured worker has a ratable impairment is in the AMA Guide to Evaluation of Permanent Impairment 5th edition.  That criteria focuses on anatomic alteration or dysfunction , as opposed to an inability to perform particular job requirements.  For example,an inability to move an injured shoulder in one or more  of the measurable planes of motion may result in a whole person percentage of impairment even if the injured worker  has a sedentary job that requires very little use of the shoulder.

Another example of how this works would be an attorney and a piano player who both have a serious injury at each of their jobs resulting in the amputation of one of their pinkie fingers.  Even though the attorney may be able to return to her job full duty, learning how to type with nine fingers, she would receive the same percentage of impairment as the piano player for an amputation of the pinkie finger.  The piano player, if  unable to return to work playing piano, would also be entitled to a retraining program or a vocational rehabilitation lump sum settlement  in addition to a permanent partial disability award. 

If your treating doctor checks off the box "no ratable impairment" on your final progress report, your adjuster will send you a letter stating that your claim will be close without an impairment evaluation.  If you think that determination is in error and that  you do have a ratable impairment, take advantage of a free consultation with an experienced attorney before you go through the appeals process and before you pay $693.31 to obtain a rating yourself.   If your doctor tells you that you won't get a rating because you can return to work full duty, you should check with an attorney whether the doctor is  correct or not .  Make sure that you file an appeal within 70days of the insurer's determination letter closing your claim without a rating.   

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Patient Advocate a Necessity If You Are Hospitalized

Most injured workers who call me for advice are frustrated with poor medical care or problems obtaining good care as a result of insurance issues.   Making sure that injured workers get the best possible medical care is what I do for a living, so I didn’t need a personal experience to convince me how important a patient advocate is when a person is ill and hospitalized. Nonetheless, last month I personally got a huge dose myself of bad medicine and lousy insurance practices when I was unexpectedly hospitalized. During my brief (thankfully) hospital stay, the following occurred:

  •      A typographical error in a CT scan report wasn’t caught until after I was given IV medication for another serious condition I did not have. 
  •      I was medicated and then strapped to a gurney and transported at midnight against my wishes to another medical facility from the hospital. My condition was actually worse when I was released from the hospital. This happened without any notification to my family.
  •        I was lied to by a doctor as to whether a prescribed IV antibiotic could be given at home as opposed to at the dirty secondary facility my insurance company supposedly required for another week.
  •     I was denied access to my own medical records for several hours while administrators grappled with what the law and their own policy says about patients’ rights to review their own records.

These  occurred during a 72-hour period when I was too sick to demand that I speak to insurance adjusters and hospital administrators. Fortunately, I have two highly-trained and very loyal legal assistants who stepped up to make sure that nothing worse happened to me.   When I was able to talk and demand better care for myself from my insurance company and from medical providers, things changed significantly for the better.  

At a minimum, if you or a family member need hospitalization, have someone go with you who can act as a patient advocate. That person should be comfortable  with asking a lot of questions, particularly during check-in and discharge.  Make sure that your advocate has a list of medications you take daily. Give the phone number of this person to hospital personnel and ask that this person be contacted if you are moved or scheduled for a surgical procedure. Bring a cell phone and a charger with you so that you have easy contact with your advocate and family. Bring a small notebook so that you can keep notes and write down important phone numbers. 

Do not be intimidated, and be persistent in getting answers to your questions as to what is happening to you. Make sure that you understand what treatment you are getting, what medications you are being given, and who ordered them for you.  Do not assume that people know what they are doing.  Finally, bring a huge bottle of hand sanitizer with you. The AARP Bulletin, March 2012, has frightening statistics on the number of people who are victims of hospital mistakes, and what else you can do to protect yourself when hospitalized.

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Should I Agree to the Insurer's Rating Doctor?

If your treating physician on your accepted workers' compensation claim in Nevada reports to your claims adjuster that you may have a ratable impairment, you should be scheduled for an impairment evaluation  30 days later.  This evaluation, also called a rating,  will be done by one of the 138 doctors and chiropractors who have been tested and authorized by the state agency, DIR, to perform ratings.  The purpose of the rating evaluation is to  determine your percentage of impairment so that a  permanent partial disability award can be offered.  (The additional two factors that determine a PPD award in Nevada are the injured worker's average monthly wage at the time of the injury, and the injured worker's age when he or she has the evaluation.)

As of  March 1, 2012, the Medical Unit at DIR has138 physicians  and chiropractors on a rotating list.  When a claims adjuster requests a rating,  the Medical Unit secretary must  assign the next one from the rotating list.  If the injury is to a muskuloskeletal part, such as the shoulder or neck, a chiropractor may be assigned to do the rating. Some of the chiropractors on the rotating list are excellent rating doctors-   fair, knowledgeable about the Guides and anatomy, and they correctly explain their findings and conclusions.

Nevada law allows adjusters to suggest and agree with injured workers on a particular rating doctor.  If the injured worker, or his attorney,  agree to a doctor suggested by the adjuster, the agreed-upon doctor can do it instead of the doctor assigned by DIR.  Some adjusters will send unrepresented injured workers a list with the names of about six doctors and ask whether the injured worker will send back an agreement to one.  If the agreement isn't returned, the adjuster must use a DIR-assigned doctor from the rotating list.  You don't lose your right to obtain a second rating if you disagree with the rating physician you agreed to rate you.

An injured worker asks me:  Should an injured worker agree to a rating doctor suggested by the insurer, or insist that the insurer schedule him with one of the 138 doctors on the rotating list? 

The answer depends on whether the injured worker has an experienced attorney.  Otherwise, it is likely that the injured worker will not be  knowledgeable about each of the doctors on the insurer's short list . If the injured worker, or his attorney,  doesn't  know anything about the doctors , he should NOT agree. The insurer will likely suggest doctors that find lower or average impairment percentages, or that are aggressive on apportionment and like to subtract percentage points for pre-existing conditions.   Despite the objective of the AMA Guides to Evaluation of Permanent Impairment to have rating methods that will easily duplicate results , there can be a  significant difference depending on which doctor is doing the exam.

If the injured worker has a lawyer , he should hope that his attorney is familiar with how each of the different rating doctors are likely to apply the Guides.  Sometimes attorneys for injured workers agree to a rating exam with a doctor suggested by the insurer.  Not all doctors suggested by insurers are necessarily a bad choice to rate a particular client.  The key is knowing how a particular rating doctor is likely to interpret the Guides.  That comes with experience.

There are injured workers, not knowing whether a suggested rating doctor is likely to be better than one assigned from the rotating list, will circle a name anyway and return the agreement    People who do that hope that the adjuster will act in the injured worker's best interests. The reality is that insurer's and their employees must act so that they can show a cost savings on claims to employers concerned with premiums.  Injured workers should understand that adjusters may be acting within the bounds of the law, but not be acting within the injured worker's best interests.  Therefore, my answer to the question is a resounding "NO".  Do not make agreements with insurers without knowing the consequences of what you are doing.

Sexual Problems May Be Related to Spinal Cord Injury

Many injured workers with severe spinal cord injuries are reluctant to mention to their treating physician that they have had sexual dysfunction since their work accident in Nevada.  Males in particular are embarrassed to bring up this topic with their doctors.  Unless the doctor initiates the discussion and directly asks about any sexual  problems, the problem isn't noted in the dictated reporting, and isn't treated.  And if the problem is permanent, the injured worker isn't properly evaluated for impairment.

It is very important that if you have had a serious spinal injury that you tell your treating physician about any loss of control of the bladder and/or bowels (involuntarily urinating or soiling yourself), any loss of sensation to your genitals and surrounding area, and any  inability to engage in usual sexual activity. 

Orthopedic surgeons, neurosurgeons, and physiatrists are busy doctors, and your appointment may already seem rushed without you bringing up an embarrassing problem .  However, you should not delay in asking the doctor about these symptoms.   If there is a nurse case manager that is present at doctors' visits, you might want to ask the nurse to allow you to speak to the doctor privately about a symptom that is bothering you.   You have the right to see the doctor alone.  Unless you speak up and tell your doctor who is treating your spinal injury about theses problems, nothing Will be done to investigate and find the right treatment.  

Once you do discuss the  problem, your spine doctor may want to refer you to a urologist for testing, or to your own primary care doctor to rule out other possible  non-industrial causes for your complaints.    Adjusters will usually pay for consultations to determine the cause of the problem if your spine doctor makes the request for a  consultation.  If it's found that the spinal cord injury isn't the cause, at least you will know what you need to do to treat the problem. 

If there is a direct causal connection between your work injury and loss of bladder or bowel control, or sexual dysfunction, your  permanent partial disability  (PPD) award could be significantly increased when you are rated under the AMA Guides to Evaluation of Impairment, Fifth edition.  The injured worker must be vigilant about having these impairments included in the rating.

Unfairly Surprised by Your Doctor's Work Release?

I caution all injured workers to look carefully at the physician progress report (PPR) they are handed at the end of each  visit to their doctor assigned to treat their industrial injury.  Most doctors and clinics that are on the various third-party administrators' medical provider lists use the D-39 form approved by the DIR.    Sometimes the clinic or doctor will use a form that looks different, but all PPR's used by Nevada medical providers must show whether the doctor is taking the patient off work completely, or is giving work restrictions until the next scheduled appointment. 

If the doctor does not hand you a PPR showing you what your work status is, ask for  a copy  before you leave the doctor's office.  It is important that you get a copy of the PPR so that you know for certain whether the doctor has released you to return to work, and if so, whether you have work restrictions.  If the doctor's assistant tells you that you don't need a copy, and that they will fax a copy to your insurer and your employer, nicely explain that you are entitled to your own copy. 

Unfortunately, there are a few doctors on the Nevada provider lists that take a cowardly and unprofessional approach to releasing workers' compensation  patients back to work.  Instead of explaining to the patient that the doctor thinks it's time to return the patient to work, or to any available light duty job, the doctor says nothing when in the examining room with the patient.  If the patient doesn't get a copy of the physician's progress report, and the doctor didn't discuss work  release status, the patient only learns about what his doctor has done when he doesn't get his next  compensation check in the mail. 

These doctors shirk their responsibility to their patients because they want to avoid an argument from the patient.  The doctor may have good reason for changing the patient's work status, and if so, the doctor should be willing to discuss the reason with the patient.  Otherwise, It is extremely unfair and bad medical care not to inform the patient of his changed work status.

If this has happened to you, or you suspect that your doctor may not be up front with you later, be aware that you have an absolute right to change physicians within the first 90 days of your claim.  After 90 days you may still request it, but it will be harder if the insurer denies your request and you have to go to hearing. It is also very hard to change doctors after a doctor has just performed surgery on you. Just don't ignore your gut feeling that your doctor is not concerned with your well-being and at least get a free legal consultation to discuss what you can do to protect yourself.  Finally, please help other injured workers learn about their rights regarding choice of physicians by sharing this resource and the DIR's website information.   

Expensive to Obtain a Second Rating

 Each year the WCS Medical Unit of the Division of Industrial Relations (DIR) updates the Medical Fee Schedule that determines the fees for medical services, including impairment evaluations.  Effective February 1, 2012, the current 138 authorized rating doctors may charge $693.31 for up to two body parts.  $231.54  is chargeable for each  additional body part.  For example, an injured worker with an injury to his neck, his low back, and to his left shoulder has  three injured body parts. A rating exam of all three injured body parts would cost $924.85.

An injured worker has the right to obtain a second rating if he disagrees with the percentage determined by the initial rating doctor.  However ,the cost of a second rating must be paid up front by the injured worker.  Whether it makes sense economically to pay for a second rating, or whether a less costly rating review based only on the medical records  is a better tactical move is a decision for experienced legal counsel.  Sometimes it is possible to convince a hearing officer to order the insurer to pay for a second rating exam without having a second rating evaluation.   An injured worker, or her attorney, must be very knowledgeable about how percentages are determined under the AMA Guides before paying for a second rating.  This office will review a rating report for free to help injured workers determine whether to accept the PPD offered, or to contest the percentage.

Neck Pain Update on Physical Therapy

I promised to give my honest assessment on whether the McKenzie Method used by the physical therapist I am seeing is helping me.  Today, back at work with many people needing to get back on track with their medical care and benefits on their claims after a long holiday weekend, my neck is stiffer than ever.  I have only been able to schedule physical therapy appointments once a week with the two holidays, so I should mention that. On most accepted Nevada workers' compensation claims, physical therapy is scheduled for three days a week, and that may make a huge difference.  (I do not have a workers' compensation claim.  My neck problems are related to age, hours spent in sub-optimal postures in front of a computer, reading late into the night in bed, a few rear-end fender benders over the years, and several significant horse-back riding injuries).

I'm finding that it is frustrating that I am forgetting to do the exercises I have been taught by the therapist at least five times a day.  The exercises probably take all of ten minutes to complete, so I don't have a good excuse for not remembering.  I think I will simply have to set the alarm on my phone today to make myself do them. Of course, it would be so much easier to take a pill of some sort and have the problem with decreased range of motion, stiffness and pain just disappear.  However, I cannot do that.  I want to remain clear mentally and crisp with my reaction time for my horse-back riding. 

I see that I reported that my range of motion was improved when I actually did the exercises, so I will resolve to make a better effort this week.  I did do a lot of horse-back riding the past five days.  The type of riding I do is strenuous- jumping and advanced English riding (dressage) on a young Thoroughbred who is emotionally the equivalent of a teenage boy.  I also had to survive a New Years Eve party at my house for my son's 22 birthday.  This last holiday wasn't exactly relaxing for me.   So, here's to trying to  take more personal responsibility for my own health in 2012. 

 

Neck and Low Back Pain- Does Physical Therapy Help?

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. 

Terrible New Decision for Injured Workers on PPD Ratings

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.

Holiday Horrors: Late and Missing Checks

 

  • Does the following sound familiar?  You've checked the mailbox for the third time in an hour.  You finally see the postal carrier  drive down your street,   but  he does not  leave a compensation check in your mailbox.  You wave him down and angrily interrogate him  about whether your check could be lost or stolen.  Your briefly contemplate committing a  federal offense by taking the postman hostage until you get your miserable, but necessary check.  Instead, you stomp back into your house and call your  adjuster for the sixth time.  The adjuster never picks up the phone when you call, so you  leave another pleading message to overnight you a temporary total disability check so that you can pay your bills on time and buy groceries.  

What the heck is up with late and missing checks during the holidays?  It seems that for every  federal holiday without mail delivery, compensation checks are delayed by at least  three days. 

Here's what to do:

1. Look at the stub that was attached to your last TTD check.  Find what time period was covered by the last comp check, and then look at the date the check was issued.  This will help you determine whether your check is truly late, or whether you were just hoping it would come earlier than usual. Also, make sure that you sent in the request for compensation form or the physician's progress report that takes you off work, entitling you to another compensation check.

2. If your check is more than two days late, leave a polite phone message, and only one message, with your adjuster.   You want your adjuster to want to help you, and leaving threatening messages only moves your claim to the bottom of the adjuster's stack of things to do.  Understand that the adjuster may have correctly done her job to have your check processed on time, but that it may not have been mailed on time from a location in another state.

3. If your check is more than three days late, and you get a response from the adjuster that your check was sent on time, you have to decide whether to wait another day or two, or request a stop payment on the old check.  Usually, the check will show up in another day or two.  If you request stop payment and receive the old check before you receive the re-issued check, you may not cash the first check.   Whether you request a stop payment depends on whether you trust the adjuster that the check was in fact mailed on time.

4. Call your creditors to let them know that your compensation check is late, and that your payment will therefore be late.  Even if the creditor is not sympathetic, it is still better to let creditors know of your situation. 

5. Before the next federal holiday, you might send your adjuster a friendly reminder to please process your check a day or two early so that it does not arrive late.

6. If your adjuster is habitually late in sending your checks, keep the envelopes and copies of your check stubs, and attach them to a complaint letter to DIR.

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Continue Reading...

Nurses and Attendants at Risk for Low Back Injuries

 Back injuries, followed closely by shoulder injuries, are the most common job-related injuries for my clients in the nursing field.  Nurses, and those employed as nursing attendants are at high risk for these injuries primarily because they must transfer patients from beds to gurneys or to wheel chairs, or to baths.

A new law in California requires hopsitals to establish a "safe patient handling policy", meaning that lifting devices must be used instead of manually lifting patients and that staff must be trained better.  The Santa Cruz Sentinel.com reported that studies done by hospitals that had already established those policies in 2004 showed that the rate of injuries among nurses dropped 15%.  Handling  overweight patients was a particular concern as the population continues to be more obese.  

Most hopsitals in Nevada have instituted training on how to transfer and move patients using correct body mechanics.   The policy at each hospital may differ on when a nurse is required to use lift equipment.  Prevention of these injuries is certainly the key to reducing  the number of  low back sprains, disc herniations, and back injuries in general that afflict workers in the nursing field.  If your hospital does not have good patient lifting policies, you might want to speak to your supervisor or director to see what can be done to obtain new equipment or to get additional training to  prevent future injury to yourself and your co-workers.

What if you are a nurse and you do hurt your lower back while transferring  a patient?   Follow all of the ordinary steps for filing a claim and getting medical care as directed by your employer.  You should notifiy your nursing director or supervisor immediately in writing if you think you may have hurt your back, even if you don't think you need to see a doctor right away.    Many times a person may not know how serious the back injury is, thinking that they have a  muscle strain that will feel better in a day or two.  Report the injury anyway on a Notice of Injury form.   The law requires injured workers to report injuries in writing within 7 days of the accident.  

The law also requires that an injured worker obtain medical care within 90 days of the accident and complete the C-4 Claim for Compensation if the worker ever intends to pursue a claim.  After you notify your employer of the incident causing you back pain, make sure that you go to the clinic where your employer directs you for a work-related injury once you realize that you need medical attention.  Be clear on that form about the date you injured your back and how you injured it.  Be as specific as possible about how the accident occurred.  If you only think you might have injured it work, but aren't sure about how and when you injured it, the claim will be denied.  Remember, there is no claim until you complete the C-4 form at a doctor's office.

Once the claim is accepted, if your back injury is not getting better following some physical therapy and anti-inflammatories,  I recommend that you request a transfer of care from the intitial clinic to either a physiatrist or a spine specialist on your insurer's provider list.   You are entitled to ask your adjuster for a copy of the insurer's provider list so that you may select a physiatrist,  or an orthopedic physician, or a neurrosurgeon.  Most back injuries will heal in time, but if yours requires surgery or is so debilitating that you may not be able to return to your profession in the nursing field, you may want to consider a consultation with an attorney to make sure you know your rights. A  book that provides a good discussion of treatment options for low back injuries is Your Aching Back, by August A. White III, published by Simon and Shuster, and available at www. amazon.com.

 

Depression and Work Injuries in Nevada

If you have a work injury in Nevada you are more likely to become depressed.  If you do need a study to prove that there is a higher incidence of depression among workers with orthopedic injuries, you will be interested in the linked article from  California psychologist Stephen Pfeiffer, Ph.D.,  He cites a study reported in the Annals of General Psychiatry, Dr. Pfeiffer  frequently writes about depression and other  psychological conditions affecting California's injured workers. 

Unlike Dr. Pfeiffer,  I am not a doctor.  I am a lawyer who represents injured workers.  The following are my Top Ten  non-medical reasons injured workers tell me  why they feel depressed after their job accident:

  • They're hurt and in pain.  That alone makes them unhappy.
  •  A supervisor, or co-worker, or their adjuster acts as if they are faking their injury...
  • They are worried about whether they will still have a job when they are well again..
  • They are getting the run-around from whomever is supposed to be handling their claim.
  • They know they aren't getting good medical care, but don't know what to do.
  • Authorizations for medical care take forever.
  • They are worried about how they will make a living if they can't go back to their line of work. 
  • They're financially behind on bills as a result of late compensation checks, no compensation checks, or inadequate compensation checks.
  • They hear stories that they might get a settlement at the end of their claim, but have no idea what to expect, or whether to hope for anything.
  •  They are worried about needing medical care in the future if the injury ever worsens after the claim is close.
  • They know they need information, but don't know who to trust for advice.

Depression is serious.  If you are feeling completely overwhelmed or suicidal, please tell your doctor immediately, or call 911 and ask for  the suicide prevention hotline.  While it can be difficult to obtain psychological treatment for depression on a worker's compensation claim, it  can be done under the right circumstances.  More importantly, many  feelings of helplessness go away once you are armed with knowledge about how the claims process actually works.   If you  feel too lousy to actually meet with a lawyer for a free consultation, at least help call for a free guide so that you have a better understanding of Nevada workers' compensation law.   

Are Your Benefits Calculated Correctly?

When the adjuster sends you a benefit check if you are out of work due to your work accident, she should also send you a letter telling you how she calculated your average monthly wage (AMW). The AMW is  the amount  used to calculate your out-of-work  compensation benefits and your permanent partial disability award.  The higher the AMW, the greater the compensation  benefits,  and the greater the lump sum PPD award

It is difficult for injured workers to know whether the AMW established by the adjuster for your claim is correct unless you have two pieces of information. First, you need the wage verification form that should have been completed by the employer when requested by the adjuster.  That form asks the employer to list all gross income earned for 84 days before  the date of your accident.  You can ask the adjuster for a copy of the wage verification form and then check the income listed against your paycheck stubs.  Remember to look at your gross wages.  You should request this form in writing from the adjuster, and always keep a copy whenever you make a request.

Secondly, you need to know what the rules are for calculating AMW.  Those rules are contained in NRS 616A.065 (definition of AMW), and in the regulations adopted by the DIR at NAC 616C.420 -NAC 616C.447.  Ordinarily, the insurer will calculate AMW by going back 84 days before the date of the accident and by averaging those gross earnings.  However, if the claimant thinks that he earned more during a year with the same employer, he can ask the adjuster to look at AMW using his  one year earnings history, or his full period of employment .  The adjuster is obligated to use the highest AMW  resulting from the use of those two methods. 

There are several other regulations that address different circumstances where calculating AMW using the two most typical methods will not  be a fair representation of the injured worker's average monthly wage.  The Nevada Supreme Court just published a new opinion that discusses the regulations that provides that the rate of pay on the date of the accident or the onset of the disease should  be used to calculate the average monthly wage where the employee is promoted to a different job just before the accident.   In  City of North Las Vegas v. Warburton, 127 Nev. Adv. Op. No. 62 (October 5, 2011), a pool lifeguard had just been promoted to  pool manager when she was injured at work.  She hadn't actually received higher wages based on her new rate of pay yet.  The Court held that her benefits should have been calculated using the rate of pay for the primary job she was working when she was hurt, and that would have been the pool manager position.

If you just changed jobs with the same employer or had just gotten a raise, then you will want to look closely at how the adjuster calculated your average monthly wage.  Keep in mind that there is a maximum average monthly wage that is set by the state each fiscal year, beginning on July 1 annually.  When the adjuster sends a determination letter setting your AMW, usually at the beginning of the claim,  you are given 70 days from the date of that letter to file an appeal (Request for Hearing form with the Department of Administration.)  Even if you did not file an appeal within 70 days of the date of that letter, you may still have the right to contest the AMW if you think that your average monthly wage should be increased.  You may then be entitled to additional retroactive benefits based on the higher AMW, and your PPD award will be greater.

Effective July 1, 1970, the law  (NRS 616C.427),  allows an injured worker to contest the AMW determination even after the 70 days has run if the claim is still open and the injured worker hasn't received a lump sum PPD award yet.     If you had unusual employment circumstances and you think your AMW was calculated too low, before your claim is closed and before you are rated for impairment, ask a knowledgeable Nevada workers' compensation attorney to please  review your AMW calculation with you.   The sooner the AMW is corrected, the better.  

Thinking of Starting Your Own Business After Your Work Injury?

The reality is that many injured workers are not offered permanent light duty jobs by their employers after their  treating doctors give them permanent work restrictions that prevent them from going back to their usual jobs.  Employers cannot be forced under Nevada workers' compensation law to give permanent light duty jobs to injured employees.  Instead, the injured worker is terminated from employment and is assigned a vocational rehabilitation counselor to try to find alternative employment or a formal retraining program.  The injured worker receives bi-weekly checks from the work comp carrier during retraining, but the length of a retraining program that the insurer can authorize may not be sufficient to provide a degree or even a certificate that will ensure employment at a comparable wage.

Many injured workers will simply have to become entrepreneurs and start their own businesses if they hope to ever earn what they were making at their time of their accident.  And those that do try to start a small business will have to be extremely imaginative, self-disciplined, and willing to take advantage of all possible sources of help.  If you are thinking about accepting a vocational rehabilitation lump sum buy-out instead of participating in a formal retraining program, start planning early and be professional about it.  Commit at least two hours a day to researching your business idea and organizing your information.  I often ask clients to show me their notes and research, and most cannot show me anything in writing. Those people will not succeed.  If you cannot write down your thoughts and investigate ideas in an organized manner, forget about going into business for yourself.

For those people who understand that starting  a new business and  then persevering the economic down times means hard work and networking, you will want to check out the NCET Entrepreneur Expo this Friday at October 14, 2011 from 10am - 4 pm at the South Point Hotel.  It is free and open to the public.  Nevada Center for Entrepreneurship and Technology is a non-profit group with excellent resources at www.NCET.org.  Good Luck to you.

Prescription Drugs and Nevada Workers' Comp Claims

Part A

The NCCI is an organization that keeps statistics on work injuries in the various states.  A recently released  August 2011 NCCI Research Brief by Lipton, Laws and Li  focused on prescription costs.  According to this study,  prescription drugs are 19% of the medical costs on an average claim.   The study showed that it was not the price of drugs that was responsible for increased prescription costs.  Instead, increased drug costs were attributable to doctors prescribing more drugs and more expensive drugs. Also responsible was the growing  trend in many states by treating doctors to sell prescription drugs in their offices.  Additionally, the study also found that physicians who sold drugs in their office were charging more for drugs than local pharmacies, 

This trend, which is particularly popular with California physicians,  hasn't caught on in Nevada yet,  According to NCCI's statistics, Nevada presently has lower prescription costs per medical claim than most other states, and relatively few doctors in Nevada sell the drugs they prescribe.  

The NCCI study did not suggest that doctors were doing anything wrong by selling prescription drugs to patients, or that they were wrong in selling drugs at prices higher than pharmacies. The study mentioned why  pharmacies are able to sell drugs at lower prices, and the study suggested that some doctors wanted to dispense small amounts of drugs for the benefit and convenience of their patients. The study listed wanting to make more money as a reason doctors were now dispensing prescriptions.  However, the study did not fully explore the subject of physician profits from this practice. 

The negotiated fees paid to doctors for their treatment of injured workers on Nevada claims seems ridiculously low to me. Unfortunately, some physicians try to make up for low rates by scheduling more and more  patients in a day.   In Nevada, most insurers won't keep a physician on their provider list unless the physician agrees to accept less than what the Nevada fee schedule allows. I wonder whether the profit margins earned by Nevada physicians  on workers' compensation claims will cause them  to start selling  prescription drugs to their patients.  

The NCCI study didn't delve into the ethics of physicians establishing  a secondary profit center at their offices selling prescribed medication to patients.  I haven't researched  this topic, so  I don't know whether there are existing rules or regulations that govern the conduct of physicians who do this.  It just doesn't seem  right to me, though. The study also found that doctors were prescribing more drugs and more expensive drugs.   Even if the physician is completely ethical, won't  patients wonder whether the physician is prescribing a particular medication just for the purpose of selling it?   Maybe I've been lucky with the physicians I've seen in La's Vegas for my own health care.  Many have given me free samples of prescribed medications so that  I could  avoid or reduce prescription costs.

For me, the NCCI Prescription Drug Study, 2011 Update, raised many questions about the future role of physicians on workers' compensation claims.  If Nevada physicians join the trend in dispensing prescriptions form their offices, it is likely that medical costs on the claim will increase.  Injured workers do not have to pay for prescriptions on an open, accepted claim in Nevada.  However, if claims costs increase for insurers,  insurers will be looking for ways to save money.  That could mean  rushing the injured worker  through second-rate medical care, denying authorizations for diagnostics or treatment, or trying to short-change the claimant on his PPD award or his vocational program.

Stay tuned for Part B on Prescription Drugs and how to handle problems obtaining necessary prescriptions on your claim.  Meanwhile, I would like to hear your opinions on the subject of physicians selling prescription drugs that they prescribe. 

 

 

Delays in Getting Medical Care on Your Nevada Work Comp Claim

Delays in getting medical care authorized are the reason most injured workers contact me for help on their claim.  Here is some additional information about treatment delays and what  you can do to get proper medical care on time on your  Nevada workers' compensation claim.  

  • An insurer won't authorize expensive tests like MRI's or EMG/nerve conduction studies until the insurer decides to accept your claim.  The adjuster has 30 days to accept or deny the claim.   If the claim is denied, no tests or further treatment will be authorized.
  • Prior authorization must be sent by your treating doctor to the adjuster for diagnostic tests (other than in-office x-rays), physical therapy, consultations with other doctors, or for surgical procedures. 
  • The adjuster has 5 working days to respond to a doctor's request for authorization pursuant to NRS 616.157.
  • Insurers can delay treatment or tests by scheduling an injured worker for a consultation or an independent medical exam with a doctor chosen by the adjuster.  The adjuster can suspend your benefits for non-cooperation if you don't attend this appointment.  NRS 616C.140.
  • The insurer can delay authorizing treatment or diagnostic testing until the requesting doctor  provides the adjuster with his dictated medical report.
  • The insurer might have a medical review done of the request.
  •  An adjuster should copy you on any denial of the requested treatment or test. and give appeal rights instead of just notifying the doctor of the denial.  NAC 616C.091(3).
  •   If you moved outside of Nevada, the insurer won't  authorize medical care with an out-of-state doctor until the insurer is sure that the doctor will accept what the Nevada medical fee schedule allows for office visits and treatment. 
  •  
  •  What you can do:
  1. Make sure that your doctor faxed the request for prior authorization to the adjuster.
  2. If the adjuster hasn't acted within 5 working days, and doesn't give you a reason for the delay, you may file a complaint with the DIR, with a copy to the adjuster. Some adjusters will then respond, not wanting to deal with a DIR investigation. See NAC 616C.092. 
  3.   File an appeal if you have requested a transfer of doctors or some particular treatment. File appeals of any medical review doctor's opinion denying the requested treatment or test.    You may appeal an insurer's failure to respond to your written request after 30 days.
  4.  You may ask your doctor for help by having him talk to the adjuster to explain why treatment or testing is necessary.
  5.  Make sure that your out-of-state doctor will accept the Nevada fee schedule before you ask the adjuster to allow treatment with that doctor.
  6.  Get legal help if there are delays that  prevent you from getting the medical care you need now for all of your injuries.  Most attorneys do not charge for an initial consultation.

 

Mileage Reimbursement Rates and Maximum Average Monthly Wage for Nevada Workers' Comp Claims

 There's good news and bad news.  The good news is that effective July 1, 2011, the mileage reimbursement rate for using your car to go to and from doctors and physical therapists visits increased from 51 cents per mile to 55.5 cents per mile.  Injured workers must have traveled more than 20 miles one way for medical care, or alternatively, have traveled a total of 40 miles or more during a week time period to qualify for reimbursement. (NAC 616C.150.) Use a mileage reimbursement form to send to your adjuster (or forward it to my office if you are already a client and we will take care of it for you). Don't wait until the end of your claim to turn in these forms. They must be sent in within 60 days of your qualifying trips.

The bad news for injured workers is that the state's maximum average monthly wage for injuries occuring after July 1, 2011 has been decreased slightly again for the second year in a row.   This is the figure that is used to calculate lost time compensation benefits and the permanent partial disabilit award.  The most an injured worker can collect for being disabled each month on new claims is $3,434.38. That means that if an injured worker is making high wages at the time of her accident after July 1, 2011,  she will get far less than 2/3 of her average monthly wage if she is off work and entitled to temporary total disability benefits.  Her final award for a permanent impairment will be less also. 

Tip  If you aren't receiving maximum compensation benefits, but think you should be, take advantage of a free consultation with an attorney to review the average monthly wage calculation on your claim.  You must do this before you accept a PPD award.

Should You Get a Second Opinion Before Having a Spinal Fusion?

Most industrial insurers will schedule injured workers for a second opinion before authorizing an orthopedic surgeon or a neurosurgeon's request to do a spinal fusion.  It is a good idea, even if the insurer isn't requiring it, to get a second opinion on whether a spinal fusion is the best treatment for you.  Many injured workers  immediately agree with their treating physician's recommendation for a fusion because they are still in pain after physical therapy and a course of medication, or because  injections didn't work.  A fusion surgery is not something that should be done simply because a patient is still in pain and the doctor doesn't know else to do.  It should be done only after careful consideration of all treatment options and only if there are clear-cut objective indications for this surgery.

Some injured workers mistakenly believe that that their benefits will be terminated if they don't agree to have surgery. An adjuster cannot terminate benefits solely because a claimant decides not to have a surgery.    The adjuster may close a claim  because the doctor has exhausted all treatment options.    The adjuster will  not  let a claim remain open indefinitely while  a claimant takes months to decide whether to have surgery or not.  However, most adjusters will agree to allow a second opinion if the adjuster hasn't already decided to get one.

If you feel that you are being pressured into making a rushed decision on having a spinal fusion by your treating doctor, discuss this with the adjuster and request that he schedule a second surgical consultation.  Remember that you may request a copy of the insurer's provider list to see what other spine surgeons are on the the insurer's provider list.  Do some research so that you are informed about the surgeons before you request a particular one, or before the insurer chooses a second opinion physician for you. 

The Learning Center- Technology Training Center

Today, I spent an informative afternoon touring The Learning Center with owner Linda Montgomery.  Linda founded this IT  technical training center 26 years ago. Her  impressive facility, housing over 250 computers,  has been located for 3 years at 777 N. Rainbow, just past U.S. 95.  TLC provides IT certification training to many of Nevada's largest corporations  who need staff training.  TLC also provides training for many government employees, including computer security training for the armed services.  Individual vocational retraining is also provided  for veterans, people looking for a new career, and for injured workers entitled to vocational rehabilitation benefits on their accepted workers' compensation claims.

Linda shared her detailed research with me regarding the expected employment outlook for various IT careers.  She is particularly excited about two certification programs the center offers in career fields with exceptional growth predicted in the Las Vegas employment market:  Green IT, and Health care IT. 

Green IT is a career field focused on saving employers energy dollars and reducing toxic emissions from IT equipment.  (I wasn't aware that all our computers release as much toxin into the environment as the aviation industry.)  The Computer Support Specialist in Health care IT is a 200 hour certification course that can be completed in six months.   Given the current mandate that doctors' offices and other health care facilities update their IT systems, this should be a very promising career field for injured workers. As with many of the certification courses offered, Linda recommends that the student also complete an internship so that the student is job-ready, with experience to offer potential employers.  

TLC's  corporate clients  are a valuable source of job leads for students. TLC provides job placement assistance.  With  heavy emphasis on practical employment skills, job placement  efforts actually begin at enrollment   Linda told me that her students are carefully monitored to assure that each student not only obtains timely certification, but that each student is a competitive job candidate for employers hiring locally. Linda promised me that she will personally oversee the retraining program of any injured workers who choose an IT certification career at TLC.  For more information, please contact Linda Montgomery at (702) 320-8885, or visit the school's website.

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

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.

Your Right to Choose a Doctor

I just saw a TV ad that asks injured workers whether they know that they have a right to choose their own doctor.   Enough wasn't said in this ad in my opinion.  The actual law,  NRS 616C.090, gives injured workers just a limited right to choose a different doctor. 

An employer can require that  their injured employees first go to specific clinics to report a claim and to get initial treatment.   Concentra, Fremont Medical, Harmon Medical Center, and Industrial Medical Group are  examples of  clinics that many insurers and self-insured employers use for that purpose.  If you don't want problems in getting your claim accepted, you should go where your employer tells you to go to file your claim and to get evaluated by a physician.  Then, you can change doctors after your claim is accepted.

Injured workers who want to change doctors have the right to request a different treating doctor, but they must request the name of one who is already on their  particular employer or insurer's provider list.  Injured workers  cannot just make an appointment with a doctor of their choosing to treat their job injury or occupational illness.   If it isn't an emergency, an employee with with an accepted claim must  go through his or her adjuster to first ask which doctors are on the provider list, and to then ask for a change of doctors.

Most injured employees simply don't k now to ask for a copy of the employer or insurer's provider list.  If you ask for it writing, they must give it to you.  First get this, then request a change of doctors so that you aren't wasting your time asking for a doctor who isn't on the provider list.

Also,  if the injured worker asks to change doctors after 90 days following the date of the accident, the adjuster may refuse to grant the change.  This is a very important right that  injured workers have, but one that few use.  If you are dissatisfied with your initial treating doctor, and many injured workers aren't happy with the quality of care, get immediate legal  help in transferring your care if you don't feel capable of doing it yourself. This is the single most important decision you will make on your claim-  who will be your doctor?  And ideally,  this decision should be made within the first 90 days of your claim with the help of someone who is knowledgeable about each of the doctors on the provider list.    For more information on the law on choice of physicians, and to read what the Nevada Supreme Court said about this choice, read my earlier blog post when they changed this law in 2009. 

Employers Misinformed About PPD Awards

The most recent edition of the local magazineNevada Business has incorrect information from a local insurance agency on how permanent partial disability awards (PPD) are determined under Nevada law.  The sidebar in the article states that  Nevada has workers' compensation laws that are pro business and that favor the employer, and I agree with that overall observation.  However,  this sidebar also  states that in Nevada the "PPD is based on work restrictions."  That is incorrect.  The PPD is not based on an injured workers' work restrictions.

Under Nevada law, the rating physician is required to use the criteria in the AMA Guides to Evaluation of Permanent Impairment, 5th edition.  The Guides determine impairment, defined as "a loss, loss of use, or derangement of any body part, organ system, or organ function."  Guides, 1.2a.  Ratings reflect the impact on an individuals performance of activities of daily living, excluding work, which is not considered to be an ADL in the Fifth Edition.  Guides 1.5.

An injured worker may have a PPD percentage  under the Guides, such as a 1% whole body PPD for a partial meniscectomy to the knee,  but may be fully capable of returning to his preaccident job without any work restrictions.  Many employers, and apparently insurers also, are under the misconception that injured workers who are released full duty by their treating physicians are not entitled to a PPD award.  Whether or not an injured worker has work restrictions does not govern whether the employee is entitled to a PPD award.

 

 

Complex Regional Pain Syndrome: It's Real!

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. 

There's Still Time To Question The Average Monthly Wage Calculation

Before you get rated for impairment at the end of your claim, you want to make sure that the award offered will be based on the right average monthly wage (AMW). Your  AMW is one of the three factors that the insurer must use in determining how much money your percentage of impairment will be for you. The third factor is your age.

Your average monthly wage is calculated a number of ways, all of which use a period of earnings before the date of your Nevada work accident.   Any days you were unemployed or took leave without pay will work against you and will decrease your AMW.   Any unemployment benefits you received during that period will not be added in to boost your earnings.   

If you have a workers’ comp claim and think that the insurer is using an average monthly wage figure that is too low, you can ask your adjuster for a copy of the wage verification form the employer gave the adjuster.  That form should show your earnings for 84 days just before you were hurt.   (There are other rules applicable if you didn’t work 84 days before you were hurt.) If you see that there is a period where you had no earnings, you may qualify to have days without income excluded.  Ask your employer or your adjuster to help document why you had no earnings if you don’t remember the reason.

The law now allows an injured worker to question how the adjuster calculated average monthly wage so long as the claim is still open and the worker hasn’t accepted a final PPD award yet.  NRS 616C.427 is a recent law, added in 2009, and some adjusters aren’t aware of it.  If an adjuster tells you that you failed to file an appeal within 70 days from the date the adjuster first sent a letter with your established average monthly wage calculation, you may nonetheless  still have time to question the AMW calculation.

An injured worker may also request that a one year earning history be used if that would result in a higher average monthly wage than the usual 84-day earnings history.   The regulations that the adjuster must follow in calculating average monthly wage are at NAC 616C.420- 616C.447.

PPD Evaluations: Should You Have One?

There were 5,528 permanent partial disability ratings done in Nevada in fiscal year 2010, according to a recent email to me from the Medical Unit of the Workers' Compensation Section (WCS) of DIR.  The Research and Analysis people at the WCS are not done compiling the data on the total number of claims filed for fiscal year 2010, but they told me that in fiscal year 2009, a total of 58,516 claims were filed.  Assuming the total number of claims filed for fiscal year 2010 is the same, then only about 10% of claimants had an  impairment evaluation.  That percentage may be higher if the number of claims filed in fiscal year 2010 is actually lower than the prior year.

The overwhelming majority of claims filed in Nevada are medical only claims.  Most  injured worker get  medical treatment, never miss any time from work, and don't  have a permanent impairment as a result of their work accident or illness.  If all of the injured workers in Nevada who actually had permanent impairments were rated, then it is fortunate that only 10% of all workers who filed claims had injuries that warranted an impairment evaluation.  Unfortunately, there  is no way to know how many workers should have had a rating evaluation before their claims were closed, but did not.  

An insurer only schedules a rating if the treating physician states on the final physician progress report that it is likely that the injured worker has a ratable impairment.  The problem is that many treating physicians are not familiar with the book used to determine a ratable impairment.  For example, there are still some orthopedic surgeons in southern Nevada that do not know that a partial meniscal repair of the knee is an automatic 1% whole person impairment under the AMA Guide to Evaluation of Permanent Impairment, 5th edition (the book the rating physician must use under current Nevada law). Other physicians do not realize that an injured worker may be entitled to an impairment award  under the AMA Guides even though he is released full duty to his job. 

Do you think that you have a permanent work injury and that you should have had a rating evaluation for a PPD award?  If so, then obtain a copy of your medical records immediately.  In general, if you are still having serious, permanent  problems with your injury, you may have a ratable impairment  It's free to have me review your records.  Keep in mind that It is much more difficult to reopen a claim that was closed a long time ago just to get a rating evaluation. Legally, it is easier to get an evaluation when the insurer closes your claim  The sooner you get legal help, the better your chances are for correcting any mistakes and getting what is rightfully yours.  

7 Steps to a Second PPD Rating

ClickTwo Doctors here to read my latest article on how to get a second rating evaluation when you think the PPD percentage offered by the rating doctor is wrong.

 

Please note that this information is offered as general information and is not intended as legal advice as to your particular claim.  There may be options other than obtaining a second rating evaluation.  For example, as an attorney experienced in ratings, I will sometimes write to the rating doctor and ask about a particular aspect of the rating that I think is questionable. 

An addendum to an existing rating is less costly.   It is impossible to discuss all options that may be available to particular injured workers.   It is a simple and free process to ask a worker’s compensation attorney to look at the insurer’s offer and the first rating report.

Cost Increase for PPD Evaluations

Effective February 1, 2011, the cost of a permanent partial disability evaluation and report will be $673.12.  The cost is set by the Division of Industrial Relations.  If more than two body parts are evaluated by the rater, an additional $224.80 is added.   This cost is the same regardless of whether it is the insurer or the injured worker who is paying for the rating evaluation. That means that injured workers should have a good understanding of how the AMA Guides to Evaluation to Permanent Impairment are applied before jumping to the conclusion that the percentage of impairment offered by the insurer is incorrect.   $673  is a lot of money to spend on a mere hope that a second rating physician will find a higher percentage, and  that hearing officer or appeals officer is likely to agree with the second rating physician.  The cost to have a rating doctor review records and give a report, without examining the injured worker, is now $335.89.   For more information on how to obtain a second rating evaluation, click here.

Low Back Strain: Am I Entitled to a PPD Award?

Whether or not you are entitled to receive a permanent partial disability award for your  low back strain depends on the following three factors:

1. Whether your treating physician writes after your final visit that you may have a ratable impairment. 

Your insurance adjuster will only schedule a rating exam if your treating physician checks a box on the physician progress report  (or otherwise writes in the final report ) that it is likely that you have  a ratable impairment.  Unfortunately, some treating doctors don't know what is a ratable impairment under the AMA Guide to Evaluation of Permanent Impairment, 5th edition, the book that must be used to determine percentage of impairment.  For information on what to do if the insurer refuses to schedule a rating evaluation, click here.

2. If you do get a rating,  whether the rating doctor finds that  you still have objective signs of a permanent back injury.

 Regardless of how bad your low back strain was at the time of your injury and in the months afterward, if you have no objective signs of a low back injury when you go for your rating evaluation, the rater will likely find a 0% impairment.  Objective findings of an injury would be observable muscle guarding or  spasm by the rating doctor, or positive  neurological studies, or positive MRI findings that correspond to what the doctor finds on her exam.  Pain complaints alone are subjective, and are not sufficient to support an impairment percentage.

3. Whether the rating physician properly applies the criteria of the Guides.

Most of the rating doctors on the current DIR list of approved rating doctors are capable of properly rating a chronic low back strain.  However, some are not.  If you feel that you have a permanent low back injury, and the rating doctor gives you a 0% impairment, you may want to obtain a second rating evaluation and appeal the insurer's letter closing your claim with a 0%.   Many attorneys, will provide a free consultation to advise you of your options and discuss whether it is worth spending the money on a second rating exam.  The cost of a second rating exam depends on the number of body parts to be rated.  Expect to spend at least $673  for a second rating exam.

  

Mileage Reimbursement change- Jan. 2011

The Division of Industrial Relations announced that efffective January 1, 2011, the mileage reimbursement rate is increased from 50 cents per mile to 51 cents per mile.  The rules that apply as to when an injured worker is entitled to claim mileage reimbursement are found at NAC  616C.150-  NAC 616C.156.    In general,  injured workers who travel more than 20 miles one way for treatment, or more than 40 miles in any one week, are entitled to reimbursement.  The request for reimbursement must be be on a D-26 form and must be sent to the insurer within 60 days of the dates traveled.  Do not wait until the end of your claim to send in all mileage reimbursement requests. Always save a copy of the form you send to the adjuster, and expect to wait at least two weeks for a reimbursement check.

PPD Awards in Nevada: Only a Few Are Reviewed

The Workers' Compensation Section of the Division of Industrial Relations (DIR) reported in their winter newsletter that an average of 464 ratings are sent in each month. Nevada law requires insurers to send a copy of all  PPD evaluation reports to DIR.   As of December 1, 2010, there were 141 rating doctors who were on DIR's rotating list of  physicians and chiropractors.  The Workers' Comp Section (WCS)  takes three rating doctors  from the north of the state, and three rating doctors  from the south to meet every six weeks to  review about 10% of the ratings that the WCS randomly reviews for possible errors.  DIR's Southern District Manager wrote to me that of the 10% that are reviewed by WCS employees, about 30 PPD reports that have possible errors  or discrepancies are sent  to the PPD Panel for further  review. 

The PPD Panel then provides confidential  recommendations to those 30 or so rating doctors whose ratings have mistakes. This  review is supposed to be for the benefit of the individual rating physician to improve the overall quality of impairment evaluations in Nevada.  When I asked the Southern District Manager  whether an insurer or injured worker is entitled to see a Panel review, she responded that legally, neither the insurer,  nor the claimant,  may see or obtain a copy of  Review Panel's comments.

Nor may an injured worker or an insurer  request that the WCS or the PPD Review Panel check over a particular rating report. If an injured worker or the insurer  thinks that the PPD rating doctor made a mistake, they must pay for a second evaluation or pay for their own  review by another doctor.  Some insurers send all larger PPD ratings to an outside service to check whether a lower percentage should be offered.  The DIR quality assurance process is not something that an injured worker can use to determine whether their rating was done correctly. 

Click here for more information on how to obtain a second rating evaluation if you think your rating percentage is incorrect. Please keep in mind that if you are unsure about whether your rating percentage is incorrect, this attorney will review your  rating report for you free of charge to advise you whether you should pay for a second rating evaluation or not. Given the high cost of a second rating evaluation, you don't want to pay for one without first knowing the likelihood of obtaining a higher percentage with a second rating physician.

Surviving Job Loss: First, Get a Notebook

Injured workers who have permanent physical restrictions that prevent them from returning to their old jobs are usually separated from their old employer and assigned a vocational rehabilitation counselor.  That independent counselor's job is to help  you develop a retraining program over the next 60 days that can be presented to the adjuster for approval. 60 days is a very short time to have the voc rehab counselor test your skills and to determine whether you are likely to be successful in a particular training program.  And 60 days is a short time for you to investigate and actually visit various schools that have training programs. An injured worker who thinks that he will not be going back to his preaccident employer due to a permanent injury, must start thinking about retraining options as soon as possible.

At the end of the retraining program, the injured worker is given only 28 days of additional benefits while the worker searches for a job in her new field.  The voc rehab counselor, and the school providing the retraining, should both be helping the injured worker to find new employment.  However, 28 days is a short time to find work in this economy.   I advise my client to think ahead and plan for the job search now.    Look at this old CNN post on CareeerBuilder.com on  "10 Reasons You Can't Find a Job".   Those clients of mine who have a written plan for finding a job in a notebook are ultimately successful.  Those clients who do not write down their efforts, what they intend to do each day,  and who simply talk about job search efforts are not likely to find jobs.  

According to the Survivors Club, the skill of adaptability, or the ability to adjust to new situations and change your attitude and behavior to handle new challenges is a hallmark trait of a survivor.    Ben Sherwood, author of  best-selling book Survivors Club, says that it's definitely possible to make changes in our attitudes and behaviors to develop new abilities to cope with adversity.  Looking for a job following a retraining program requires drawing on the psychological strengths common to the most effective survivors: adaptability, resilience, faith, hope, purpose, tenacity, love, empathy, intelligence, ingenuity, flow and instinct.   I encourage you to revisit their web site for more information on how to hone these strengths for your job search period.  Good luck to you.

 

Help for Chronic Pain

I came across another website that offers information on treating chronic pain, as well as a comprehensive list of other websites with additional help for people dealing with injuries or illnesses that cause chronic and long-lasting pain. There may be something useful for you here, particularly the kit offered for tracking and measuring your pain.  http://www.partnersagainstpain.com/pain-management-resources/tips.aspx  You might also want to read the articles on how to better communicate what you are experiencing and feeling with regard to your pain when meeting with your doctor.  As you know, so much of treating chronic pain involves trial and error, both with prescription medications and lifestyle changes until the person does not feel overwhelmed and controlled by pain.  I am always looking for useful tips or information to share with injured workers, so please feel free to send me your comments.

Very Little Job Security After a Work Accident

Q: What happens if my work injury prevents me from being able to do my old job?

A:  If your treating doctor releases you with permanent work restrictions that are not compatible with the physical requirements of your job, one of three things is likely to happen:

1) your  employer may offer you a  permanent light duty position , or

2) if your  employer doesn't offer permanent light duty,  you will be eligible for vocational rehabilitation benefits and/or services, or

 3) you can try  to get your permanent work restrictions lifted so that you can stay in your  job.

Q:  Doesn't  my employer have to provide me with a permanent light duty job?

A:  No, your  employer is free to say that it does not want to offer a permanent modified position.  While the  Americans with Disabilities Act, if applicable to your employer,  may be helpful in securing an accommodation and keeping you employed, Nevada workers' compensation law  does not provide job security to injured workers.

Q:  What if I am released full duty and my employer has given my job to someone else or simply won't rehire me? 

A:  Workers' comp law provides that benefits are not payable  if the injured worker is released full duty and the pre-accident job is no longer available.   An employer is not required to hold an  injured worker's job position open indefinitely.  If applicable, the Family Medical Leave Act, may require an employer to hold the job open for up to 12 weeks.   Many injured workers need to file for unemployment benefits when they are able to work.  No recourse can be taken against an employer for not rehiring the injured worker unless it can be proven that the employer is retaliating against the injured worker for filing a workers' comp claim.

Q: What is the best way to keep my job after an injury?

A:  Because an employer is not obligated to offer permanent light duty, the safest way to secure your job is to have your treating doctor release you full duty, without work restrictions.  (You can still be rated for impairment and receive a PPD award even if you have a full duty work release.) Of course, you need to be able to do your old job if you intend to convince your treating doctor that it is safe and reasonable to send you back to work full duty.  If you are unsure, then ask your doctor to give you a trial of 2 weeks or 30 days of full duty, with a follow-up appointment.  That way, if you really cannot work full duty, you will get permanent work restrictions at the follow-up visit,and be entitled to vocational rehabilitation.  Keep in mind that if you do have a full duty work release, your employer has a right to expect full duty work performance from you.   You want to be a valuable employee, and don't want to give your employer any excuses to look for reasons to terminate your employment.

Q:  What else can I do to keep my job even if I have restrictions?

A: From the moment your doctor and you think that you may have permanent work restrictions, you can start strategic planning  on how to keep your job.  Devise a plan for showing your employer how you can remain a valuable employee.  Refuse to be a victim, and focus on what you are still qualified to do.  Put yourself in your employer's shoes, and think creatively about how to best use your skills.  Keep in contact with supervisors and human relations reps so that you are aware of positions that may be opening within the company.  Ask whether you would be qualified for other positions with a short course of retraining.

Getting Medication After Claim Closure

 

Prescription BottlesWhen the adjuster sends a letter, either scheduling a rating evaluation, or simply closing the claim, No additional medical treatment will be authorized.  That means that the insurer will also stop paying for any medication refills, and will not authorize return visits to the doctor for more medication.  If the injured worker's treating doctor reports that the patient will need ongoing medication, then this issue needs to be discussed and resolved with the adjuster before the appeal time (70 days) runs on claim closure.  Additionally, if an injured worker accepts a permanent partial disability award in a lump sum, any appeal the injured worker has filed on claim closure to obtain ongoing medication will be dismissed.

Nevada statutes and regulations governing workers' compensation claims do not address what the insurer's obligations are to provide ongoing medication after the treating doctor recommends that that claim be closed. The best way to deal with this issue is to negotiate with the adjuster to reach a reasonable agreement.  Assuming the treating doctor makes it very clear that ongoing medication is necessary, many insurers are willing to pay for medication for at least a year after the claim is closed and are agreeable to letting the injured worker receive his PPD award also. Insurers are usually only willing to do that when the injury is very serious.  If the insurer agrees to ongoing medication for a year, the insurer will want to make a new determination after a year after asking the doctor whether more ongoing medication is necessary. 

Other insurers take a more obstinate stance and refuse under any circumstances to pay for any medication or doctors' visits after claim closure. The injured worker can appeal the claim closure letter, and try to persuade a hearings or appeals officer  to order the insurer to provide ongoing medication.  While it is possible to obtain such an order, the problem is that this appeals process takes months.  Again, the injured worker can not take his permanent partial disability award in a lump sum while the claim closure/medication issue is being litigated.  Many injured workers cannot afford to let their award money sit with the insurer while trying to get ongoing medication through the appeals process.

Obtaining ongoing medication after claim closure is difficult, and most injured workers will be unable to obtain it without an attorney.  If the injured worker is able to obtain it without an attorney,  it is essential that any agreement obtained from the adjuster be in writing.  Adjusters change frequently, and an oral agreement will not be enforceable. 

 

Average Monthly Wage, Fiscal Year 2011

Maximum total disability benefits, payable when an injured worker is off work, are determined each fiscal year by the Nevada Department of Employment, Training, and Rehabilitation, Employment Security Division.  Maximum benefits are 66 2/3 of this maximum average monthly wage.  (If the wage earned on the date of injury is less than the maximum average monthly wage, the benefit is 66 2/3 percent of the actual earned wage.)  For the first time, the maximum average monthly wage for injuries is less than the prior year's maximum average monthly wage.  The maximum average monthly wage for injuries occurring 7/1/10- 6/30/11) is $5,179.05.  The maximum bi-weekly compensation is $1,588.02.

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How Concurrent Wages Affect Benefits

If an injured worker is holding two jobs at the same time he or she has a work accident  (or files a claim for an occupational disease), that worker is said to have concurrent employment.   Concurrent employment is not the same as consecutive employment.  Consecutive employment occurs when a worker has a job with one employer, terminates that employment, and then has a job with a second employer.  There are special rules that entitle an injured worker to increased benefits where the injured worker has a concurrent employment at the time of his industrial accident or occupational disease claim.

Even though the worker is injured on one job only, the worker is entitled to give information to his adjuster showing the amount of wages earned  with the second, concurrent employer  in the 12 weeks or full period of employment before the job accident.  Those concurrent wages can then be combined with the wages earned from the first employer when the adjuster calculates the injured worker's average monthly wage before paying compensation benefits.   Including those additional wages from the second employer can often bump up the average monthly wage to the maximum allowable benefit, and this can also greatly increase the amount of the permanent partial disability award.

If an injured worker can return to only one of his jobs as a result of the work injury, he may be entitled to the difference between what he earns after taxes on the one job and what his compensation benefit would be if he were unable to work at all.  In that case, the injured worker should send in a copy of the wage stubs and ask his worker's compensation adjuster to pay the difference.

Money tree

Help! My FCE Is Invalid

 

The FCE (functional capacity evaluation) often serves to let the physician off the hook on trying to please both his patient and the insurer on the issue of work release restrictions. The insurer may be pressuring the doctor to give a full duty work release, while the patient keeps telling his doctor that he does not think he will be able to go back to his pre-injury occupation or employer. When the doctor order a FCE before giving final work restrictions, then his job is easier because he can simply adopt the findings of the independent physical therapist who gives the FCE.

The FCE is a 2-3 hour test given at a physical therapy facility. Generally, the tests consist of lifting, walking on a treadmill, bending, carrying, and doing other physical movements that may or may not have anything to do with the physical activity you actually do at work. The FCE has validity criteria built into the various tests that can supposedly detect when the patient is not giving a full effort.

If you fail enough of the validity criteria and the test comes back invalid, then you run the considerable risk of your doctor no longer believing that you are incapable of returning to your old job.   Or, your doctor may tell you that his only option is to return you to work full duty when a FCE is invalid. That is not true, however. Your doctor may instead disregard the FCE results, and based on his own exams of you, may decide that you do have permanent work restrictions. Few doctors are unwilling to override an invalid FCE.

If your doctor gives you a full duty work release following your invalid FCE, then you can expect your benefit checks to stop immediately. Moreover, if you don’t try to go back to work full duty, your employer may terminate you.

The best way to handle this situation is to file an appeal when the insurer stops your benefit checks. Secondly, assuming you have some money left, you will want to pay a different physical therapist to redo your FCE. Expect to pay at least $600 up front for a repeat FCE. While this is a lot of money for an injured worker, it is essential to obtain a valid FCE showing that you should have work restrictions.  Otherwise, you will not be able to convince a hearing officer that your benefits should be reinstated and that your doctor should review the results of the second FCE. Some attorneys will advance the cost of a second FCE if the attorney agrees to take you as a client.  

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High Rate of Error and Inconsistency for PPD ratings

The March/April 2010 edition of the AMA Guides Newsletter reports that a review of over 6,000 cases, mostly from California, resulted in 80% of them questioned by expert rating reviewers.   For the very small number of Nevada cases reviewed for this study , the error rate was much less, with an average difference of 3% whole person impairment.  This study confirms what most attorneys who represent injured workers know about rating evaluations.  There is a tremendous difference in ratings by the various rating doctors authorized to perform ratings in Nevada, even though the rating doctors should theoretically reach the same numbers by following the methods in the Guides.

In discussing the causes of errors found in ratings done under the AMA Guides, 5th Edition, the newsletter authors state that it is more likely that an erroneous rating will be higher, rather than lower than is appropriate.  The greatest source of error is examiner inexperience or lack of knowledge.  Spine injuries are most likely to be rated incorrectly.  Errors were also found in ratings for shoulder injuries and carpal tunnel syndrome, while knee injury ratings were less likely to be wrong.

Because of the high incidence of error in rating evaluations, I always ask the adjuster to agree with me on which rating physician will do the initial rating evaluation.  Adjusters  want to avoid having to hire a defense attorney to litigate the PPD if the injured worker appeals from the PPD offer, and they want to close the claim as soon as possible. Adjusters will therefore often agree to use a rating physician who is well known and has a reputation for performing objective and accurate ratings.  However, if the adjuster does not agree to use a particular rating physician with the injured worker's attorney, the adjuster is obligated to use the rating doctor assigned by the Division of Industrial Relations from the rotating list of rating doctors. 

I sometimes see cases where the injured worker who is not represented by an attorney agrees with the adjuster to use one of the rating doctors on a short list sent by the adjuster.  It puzzles me that someone without any information about the doctors on that list would agree with the insurer to use one of the doctors suggested by the insurer instead of requiring that the insurer use the doctor assigned.  Invariably, the unknowing injured worker agrees to be rated by  a rating doctor that  I would never choose for my client.  The injured worker must then pay $650 up front for a second rating and appeal the offer based on the first rater's exam.  

 

Worth Paying Attorneys' Fees? You Judge.

This is a real story about a real client.  We will protect his identity by calling him Joe, and by saying only  that he worked for a very large employer.  He hired me near the end of his claim, and after considering what  issues might still come up on his claim,  I agreed to discount my usual fee and represent him for a 20% contingency fee of any permanent partial disability award.

 When the  adjuster would not agree to use one of several rating physicians I suggested, a chiropractor was assigned from the rotating list maintained by DIR to conduct the impairment evaluation. I went with Joe to his rating evaluation, and it was apparent to me that the doctor had not  done very many rating evaluations.  The insurer offered Joe a 13% whole person impairment for his low back injury that included a surgery with a fusion at L5-S1 and ongoing neurological complaints in his legs.    The lump sum equivalent of that award for Joe, given his age and his average monthly wage, was $51,586.

I have advised Joe not to accept the offer, as I think that the AMA Guides call for at least a 20% impairment, and that the correct percentage may actually be over 25%.  I filed an appeal for Joe, and the insurer has agreed to do more diagnostic testing that will help determine whether he is entitled to a 25% PPD award instead of the 13% originally offered.

If the insurer offers a 25% award, the lump sum award will be approximately $99,200.  If that amount is offered, after payment of attorneys fees, Joe will net  about $79,360 for his PPD award.  You can do the math to determine whether it was worth it to Joe to hire an experienced workers' compensation attorney to help him on his claim.

According to DIR, in 2009, there were 6,616 rating evaluations done in Nevada.  DIR employees in the north and south are required to review only 10% of those rating reports for obvious errors or for questions that should be referred to  the panel of six rating doctorss.  It is anyone's guess as to the number of injured workers who should have received a higher PPD but didn't, because of errors by the rating doctors.  If you decide not to have legal representation during the time your claim is open for medical care, at least take advantage of experienced workers comp lawyers who are willing to review your PPD award for free.   

Show Me the Money for My Work Injury!

Most people who call me about their Nevada workers' compensation claims tell me that they just want to get decent medical treatment and get on with their lives.  They usually say something about not pursuing a claim just to get money. They  emphasize that  they like their jobs, and they don't want their employers to think less of them because they have hired a lawyer to  get them medical care or  benefit checks after trying to deal with an insurance company that acts like they don't exist.  However, all injured workers should know a few things about money awards.  Here are a few facts about money and your workers' comp claim:

1. The amount of off work compensation benefits (TTD benefits)  depends on how much money you were earning 12 weeks before your injury, unless special circumstances apply.   

This is the basic rule used to calculate benefits, and there are special circumstances that may apply to you that will allow an increase in the average monthly wage figure used by the insurer to calculate your benefits.  There is also a maximum average monthly wage and maximum benefit that changes on July 1 of each year.  Right now, the maximum amount an injured worker can receive each month she is off work for an injury occurring after July 1, 2009 is $3,472.40.  As this average monthly wage figure is also used to calculate any permanent partial disability award at the end of your claim for any permanent injuries, you will want to make sure that the insurer is using the highest possible figure on your claim. For more information on how benefits are calculated, click here.

2. There is no pain and suffering awarded on a work injury claim.

Any money paid on a work injury claim is paid strictly in accordance with a set of laws and regulations governing workers' compensation claims in Nevada.  Money damages awarded by juries (or judges) for "pain and suffering", or lost of enjoyment of life, or loss of earning capacity, are related to personal injury lawsuits and not workers' compensation claims.  There are some circumstances that would allow an injured worker with a work injury claim to also file a personal injury lawsuit against the person or corporation responsible for the accident ,so long as the employer or co-employee is not sued.  In those circumstances, pain and suffering damages might also be awarded on the personal injury action.

3. Money awarded on work comp claims are for permanent injuries only.

You might have a terrible accident at work, causing you to be hospitalized for weeks, but if  you fully recover for your injuries, you  might not be entitled to a permanent partial disability award.  There are two types of money settlements typically involved in a Nevada workers' compensation claim involving serious injuries.  One is the permanent partial disability award that is determined by a rating doctor when the treating physician releases you from further care.   The rating doctor must apply the criteria in the AMA Guide to Evaluation of Permanent Impairment, 5th edition, to arrive at a whole person percentage of impairment.  That percentage is then inserted into a mathematical formula that also uses your average monthly wage, and your chronological age to arrive at a lump sum of money for your permanent impairment.  You must be familiar with the AMA Guides in order to know whether the percentage of impairment is correct and whether you should accept the offer by the insurer or file an appeal.

4.  Insurers sometimes close files without offering PPD awards when  awards should be given.

The insurer only schedules an impairment evaluation if the treating doctor states that it is likely that the patient has a ratable impairment.  The problem is that many surgeons do not know what a "ratable impairment" is under the AMA Guides, and these doctors think that there is no ratable impairment if the patient is able to return to work full duty.  I have seen many cases where injured workers were entitled to thousands of dollars on their claims for their injuries, and they never knew to question the insurer's closure of their claims without a rating evaluation.

5. Rating doctors make mistakes frequently, costing injured workers thousands of dollars.

Theoretically, several rating doctors should arrive at the same percentage of impairment if several doctors were to examine and rate an injured worker.  In reality,  the same injured worker can be rated by several rating doctors, and the percentages come out differently. That can make a huge difference in the amount of money offered by the insurer. Again, either you or your attorney should know how to apply the criteria in the AMA Guides so that you are offered the correct and highest percentage of impairment.  You also need to consider that it now costs $650 to obtain a second rating from the rotating list of rating doctors, and you don't want to spend that amount if the first percentage offered is correct.

6. A vocational rehabilitation lump sum buy out can be negotiable.

The second type of lump sum of money an injured worker can receive on his claim is a vocational rehabilitation lump sum buy-out.  If the injured worker has permanent work restrictions, and if the employer does not offer a permanent light duty job, he is entitled to vocational rehab benefits.  Those benefits usually consist of either a program of retraining, or a lump sum of money for the injured worker to go away and find a job or retraining on their own.  It used to be that the insurer could offer 1 cent for a lump sum buy-out  if it wanted to be particularly nasty. and the injured worker's only option was to accept a retraining program.  Now, the law requires the insurer to offer at least  40% of what the insurer would have to pay in monthly benefits if the injured worker had instead opted for a retraining program.  What many injured workers do not know is that insurers can sometimes be persuaded to offer more than the minimum lump sum.

7. You can't put a price on quality medical care.

The most important consideration in any work injury case is the quality of the medical care provided to the injured worker. Money is never a sufficient substitute for an injury that could have been treated by faster and better medical care.  Injured workers must treat with doctors on their particular insurer's provider list.  It is essential that the injured worker obtain information as to which of the doctors on that list show consistently  good surgical results, and which are fair to injured workers.

8. It may be difficult to predict how much money an injured worker will get for a PPD award at the outset of the claim.

When an injured worker comes for a consultation at the beginning of his claim, I may not be able to predict how much money will be awarded for a permanent partial disability award, because we don't know to what extent the injury will heal after more months of treatment.  All of the people I accept as clients want to get better.  ( People who impress me as only trying to obtain money are not clients I want. )  Some injuries, such as amputations, are easily ratable under the AMA Guides, and I can give the injured worker an estimate of what to expect.  Other injuries depend on loss of range of motion, or neurological testing, or a review of operative reports to determine an approximate percentage of impairment, and that is information that is usually unavailable at the beginning of a claim.

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Work Comp Benefits and Divorce

I asked Family Law attorney Stacy Rocheleau of Rocheleau Law Group to write a guest blog post for me on workers' compensation benefits and divorce.  The Rocheleau Law Group handles divorce, child custody, and guardianship matters and offers a free legal guide.  Their website is at www.rocheleaulaw.com, and phone is (702) 914-0400.  This is what Attorney Rocheleau wrote:

Are you getting a divorce and wondering who will receive the income your spouse received from a work related injury? 

This question is often asked and the answer can be complex. Earnings by either party could be community property, so any income received from a work related injury would need to be decided by the court in a divorce. Who receives the income will depend upon how the award is classified.

There are at least four different ways that workers' compensation benefits can be classified:

Treatment as wages. If the payments are designed to replace lost earnings due to a work-related injury, the payments would be characterized as wages. Those payments received during marriage are marital property; those received before or after marriage are individual or separate property.

Treatment as personal injury award. A workers' compensation award could be classified as a personal injury award, on the basis that they are meant to compensate for physical injury rather than lost wages. In that case, the award would then be considered that spouse’s separate property.

Treatment as disability pay. In some instances, a wage replacement analysis will be used, but the workers' compensation payments would be treated or classified as disability pay. In that event, any compensation received during marriage is community property and compensation received after marriage is the injured worker's separate property.

Treatment according to when the right was acquired or earned. Even despite a situation where a workers’ compensation award will in part or in whole replace post‑divorce wages, the award is community property if the right was acquired or earned during the marriage. 

Further complicating the analysis is that work related injury benefits, or workers compensation benefits, can be awarded to an employee injured on the job either as a lump sum or in weekly installments.

In Nevada, workers compensation benefits are generally treated as a wage replacement and any payments received during the marriage would be considered community property, unless part of the award is specifically labeled as a personal injury award for disfigurement, pain, or suffering, and then that portion is considered separate property.

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What Is a Physiatrist?

One type of physician that injured workers commonly encounter is the physiatrist,  also known as a physical medicine and rehabilitation (PM & R) physician.   While the name  sounds similar to a psychiatrist,  a  physiatrist  treats physical injuries as opposed to mental or behavioral problems. A surgeon may refer her patient to a physiatrist after a surgery when additional physical therapy is recommended.  Or, a physician who sees an injured worker in a clinic setting for the first couple of visits may refer the patient to a physiatrist when it appears that the injury  may require  more care over several weeks or  months.  

Physical medicine and rehabilitation (PM&R), or physiatry  is a branch of medicine which aims to enhance and restore functional ability and quality of life to those with physical impairments or disabilities. Physiatrists must complete four years of medical school,  one year of internship and three years of residency.   Physiatrists specialize in restoring optimal function to people with injuries to the muscles, bones, tissues, and nervous system. 

A physiatrist who treats an injured worker usually coordinates the medical care if several specialty physicians are required to treat different injured body parts.  If surgery has already occurred, or no surgery is necessary, the physiatrist may order physical therapy or may prescribe medication while the patient recovers from his injuries. When the patient is stable and does not need more treatment, the physiatrist may then order a functional capacity evaluation (FCE) to assist him in determining the patent's permanent work restrictions.  Finally, the physiatrist tells the adjuster whether the injured worker should be rated for permanent impairment or not. 

 If you are not satisfied with the physiatrist that is currently treating you for your work injury, you may be entitled to change physicians. Click here to read more about changing physicians.

                

Cost of a Rating Exam in Nevada Is Increased

Effective February 10, 2010, the cost of a permanent partial disability evaluation on a Nevada workers' compensation claim is $650.99 for one or  two body parts.  An injured worker who does not agree with the percentage of impairment found by the assigned rating doctor may obtain a second rating evaluation by paying this same fee for a second rating.   However, if the injured worker does not think an exam is necessary in order for a second rating doctor to conclude that the first rating doctor made an error, he may pay the assigned second doctor $324.85 for a records review and report.  Click here for the  form to request the name of a second rating doctor from the rotating list maintained by the Division of Industrial Relations.  Read my earlier blog post on how to contest PPD awards.

What Happens When? PPD Awards and Voc Rehab Buy-Outs

I have included a graphic to clarify what happens when the treating doctor tells the injured worker that he is "stable and ratable".   I have divided injured workers who are stable and ratable into two groups, depending on whether the injured worker is released to go back to work full duty, or whether the injured worker has permanent work restrictions.

  

If the injured worker has permanent work restrictions, then he is assigned a vocational rehabilitation counselor if the employer does not offer a permanent light duty job within 30 days of receiving permanent work restrictions from the treating physician.  Vocational rehabilitation benefits are started also.  (They are payable every two weeks and are the same amount as the temporary total disability check the injured worker has been receiving while out of work.)  Even though the vocational rehabilitation counselor will not know how much retraining the injured worker will receive until after the permanent partial disability percentage is determined, the counselor will start meeting with the injured worker to discuss potential programs.  Alternatively, the injured worker may receive a vocational rehabilitation lump sum buy-out instead of participating in a vocational rehabilitation retraining program. How much the insurer will offer will depend on the percentage of impairment.

Vocational Rehabilitation- My Visit to LV-PITA

This week I visited the Las  Vegas Professional Institute of Technology & Accounting (LV-PITA) to get a first-hand impression of the school's retraining programs, to pop in on a few classes, meet some instructors, and to meet director Laurie Clemens. I like to personally acquaint myself with the doctors, vocational counselors, nurse case managers, and even the adjusters who will be major players on my clients' claims.  LV-PITA was provisionally licensed last June and expects its permanent accreditation from the state after its first year in operation.  The school is located in the Fountain View Business Park at Decatur, near Rochelle. 

Programs offered include accounting, basic computer training, networking, various network technologies, PC repair, and software applications used by office management staff and computer software specialists.  Click on this link  for more information on on certification programs and course specifics.

Laurie Clemens is an attractive, vivacious blonde with who exudes positive energy.  I will give you her official bio later.   About half of her 170 enrolled students are injured workers participating in retraining  programs paid by industrial insurers.  The other students are mostly older individuals who are referred by various other state and federal agencies that provide funds for vocational retraining.  LV-PITA also generously provides free  computer and job search classes by appointment every other Tuesday for all unemployed Las Vegans. 

I was particularly impressed that LV-PITA was working on retraining programs suitable for Hispanics who need help learning in Spanish before using more difficult materials in English.  The school also teaches the visually impaired, and has experimented and found the best method to teach those individuals who require a one-handed key board.  One of my former clients with a  severe hand injury and permanent impairment was very satisfied with the quality of instruction he received from the school.

Laurie is a native Las Vegan with many ties to the business community.  Having those long-standing connections gives her a tremendous advantage when placing students in internships and when helping graduating students with job placement in these difficult economic times.  Stay tuned for more information about LV-PITA and other schools I intend to visit myself.

True or False: The longer a Nevada workers' comp claimant is out of work, the greater the settlement award?

Apparently,  the doctors who wrote the American Medical Association's Guides to the Evaluation of Disease and Injury Causation  don't know the answer to this week's question  either.  Dr. J. Mark Melhorn and Dr. William Ackerman, editors of the 2008 book designed to help workers' comp doctors answer medical causation questions, write that disability in the workplace is rampant in the United States.  These docs state in their Foreword that injured workers with poor genetic makeups and preexisting psychological problems share the blame for the work disability epidemic with plaintiffs' lawyers. They write, " The attorneys need to understand that by encouraging the worker to remain off work rather than getting back into the work place, they are actually doing damage to their client." 

I wholeheartedly agree that any Nevada attorney who encourages their client to remain off work unnecessarily is doing a great disservice to their client.  But are there any work comp attorneys in Nevada advising their clients to stay home longer than necessary?  I hope not, because there is no relationship between how long an injured worker is off work for his injury and his permanent partial disability award at the end of the claim.  

 There is no financial advantage to an injured worker in Nevada remaining  off work.  Most injured workers figure that out immediately.  If an injured worker is only getting two-thirds of his wages while he is off work, there is no financial gain to his staying at home.  Additionally,  the percentage of impairment and the final award at the end of the claim is not determined by how long an injured worker has been out of work. ( For more information on how awards are determined, see the articles in this blog on permanent partial disability awards.)

Unfortunately, some of the medical providers who treat  injured workers in Nevada do not understand that the vast majority of workers' compensation claimants are  hard-working people who want to return to work as quickly as possible.  If an injured worker is out of work for a lengthy period of time, that person will invariably lose money the longer they remain off work.   Any attorney who encourages his client to stay off work unnecessarily does not understand Nevada law.  It would be great if the doctors treating injured workers knew a few things about Nevada law also, so that they do not erroneously think that a  patient  who tells his doctor that he cannot physically return to work yet is profiting from the system. 

Good News for Injured Workers Getting PPD Awards for Back Injuries

Last week the Nevada Supreme Court unanimously decided that rating doctors evaluating injured workers with spinal injuries can add one to three additional percentage points to the permanent partial disability award if the rating doctor finds that the spinal injury has substantially impaired activities of daily living (ADL's). The Nevada Self-Insurers Association had filed a lawsuit naming the Nevada Attorney for Injured Workers and the Nevada Division of Industrial Relations, arguing that  a section of the American Medical Association Guides to the Evaluation of Permanent Impairment allowing for impairment of ADL's  violated Nevada law.  A district court judge agreed with the Self Insurers, and entered an order back in June 2008 that allowed insurers to withhold payment of that portion of an injured worker's award for ADL's until the Nevada Supreme Court decided the appeal.  Injured workers were then put in the unfair position of having to wait until the Nevada Supreme Court decided the case if they wanted to accept their award in a lump sum payment.  Most injured workers could not wait and ended up losing their percentage points for ADL's so that they could accept their permanent partial disability awards immediately.  

Click on this link to read the complete decision by the Nevada Supreme Court.  If you are an injured worker who chose to wait for the Nevada Supreme Court to decide this case and did not accept your PPD award in a lump sum, you should contact your adjuster if you do not receive a new PPD offer that includes the ADL's award within the next 30 days.  The Division of Industrial Relations has notified all third-party administrators that they are to comply with the Nevada Supreme Court's decision.   Click these links for more information on how permanent partial disability awards are calculated, or information on how to contest an award and get a second rating.

Health Care Jobs a Good Retraining Choice for Injured Workers in Nevada

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.

Bankruptcy and Nevada Workers' Comp Benefits

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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Starting a New Business in Nevada

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

Conversation with a Vocational Rehabilitation Counselor

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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Permanent Partial Disability Evaluation Cost Increase

The State of Nevada, Division of Industrial Relations, has approved the Nevada Medical Fee Schedule effective February 1, 2010.  It provides that rating physicians are entitled to charge $650.99 for a rating evaluation that includes up to two accepted body parts.  The rating doctor may charge an additional $217.41 for each additional body part.  Injured workers who contest the initial rating evaluation obtained by the industrial insurer are required to adhere to this fee schedule when obtaining a second rating evaluation from a second rating doctor.  However, pursuant to NRS 616C.100,  a hearings or appeals officer may reimburse the injured worker the cost of the second evaluation if the hearings or appeals officer finds that the second rating should be used as the basis for the permanent partial disability award.

Mileage Reimbursement-Update January 2010

The State of Nevada DIR announced that mileage reimbursements to injured workers traveling to and from medical care or for vocational rehabiliation purposes has been decreased from 55 cents a mile to 50 cents a mile, effective January 1, 2010. 

The regulations for mileage reimbursement of travel expenses are found at NAC616C.150.  The request for reimbursement should be on the DIR form D-26, which has the rules for reimbursement on the back side.  Please be sure to send in your reimbursement request form to your adjuster within 60 days of the date of your first trip on the form.  Many injured workers make the mistake of waiting until the end of their claim to send in requests for mileage reimbursement, and the adjuster is then only obligated to pay for the last 60 days of qualifying travel. 

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FMLA Questions and Answers for Nevada Injured Workers

 

Q: What is FMLA?

A: FMLA is The Family and Medical Leave Act of 1993, a federal law that requires employers of 50 employees or more to grant up to 12 weeks of unpaid protected job leave to eligible employees for certain family and medical reasons.   There is a 12-month eligibility requirement, and only serious health conditions are covered. 29 U.S.C.A. Sections 2601, et.seq.

Q: Can my employer reduce my FMLA time while my treating physician takes me off work for my accepted  work-related injury or occupational illness?

A: Yes, your employer can require that you complete FMLA paperwork and can reduce the amount of FMLA time you have available even though you are off work under an accepted workers' compensation claim.

Q: If FMLA time is running during my work injury, can my employer terminate my job?

A: During FMLA time, your employer may not terminate your job. At the end of your FMLA time, or 12 weeks, if your employer does not have light duty work within your restrictions, and if your employer decides not to extend your unpaid leave of absence, your employer may decide to terminate your employment. Your workers’ compensation benefit checks would continue, however.  You would also be considered for vocational rehabilitation when you have permanent work restrictions if your employer is unable or unwilling to rehire you and offer you a permanent job within your permanent work restrictions.

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Physician Progress Reports- Nevada Work Comp Info

After every visit to a treating doctor, the injured worker should make sure that he or she leaves with a copy of  a physician progress report (PPR).  Most doctors who are on insurers' provider lists use the DIR- approved physician progress report form.  However, some doctors have forms on their own stationery that  have the same information, but in a different lay-out.  If the nurse or assistant checking you out after the doctor's visit does not offer you a copy of the PPR, please insist that they give you a copy before you leave.  Then read the PPR before you leave the doctor's office to make sure that the information is correct and that you understand what the doctor has written..  A copy of  this form will be sent to the adjuster handling your worker's compensation claim, and a copy is often sent to your employer.

The top portion of this form states in abbreviated medical terms what your injury and diagnosis is.   If you have injured more than what is stated in this section of the form, you should have a discussion with the doctor to make sure that he or she has examined and noted all body parts that were injured and that need treatment. 

The second section of the form is important when the doctor releases you from care.  In that section, the doctor checks boxes that state that  you are, or are not, ratable and may have suffered a permanent disability.  If the doctor checks "no" to those two boxes, the adjuster is not likely to schedule you for a permanent partial disability evaluation, which is necessary to receive a settlement for your injury.

The section entitled "Treatment plan" often tells you whether the doctor will be requesting approval for MRI's, more physical therapy, or a referral to a specialist.    Hopefully, your doctor's staff will then follow-up with the proper authorization request form so that the treatment plan is approved and put into motion.

The bottom third of the PPR is very important and tells the injured worker whether the doctor has taken you off work completely (totally temporarily disabled), or whether the doctor has given you work restrictions.    If the doctor gives you temporary work restrictions, it is your responsibility to give a copy of the PPR with these restrictions  to your employer and ask whether your employer has work available within these restrictions.    Keep in mind that a copy of this PPR goes to your adjuster, and if the employer tells the adjuster that light duty work is available,  the adjuster will not continue to pay bi-weekly  TTD benefits to you.

Read the PPR before you leave the doctor's office to make sure you know whether the doctor has released you to  full duty or with temporary work restrictions.  Often injured workers misunderstand what their doctors verbally tell them about returning to work.  You need to know what the doctor writes on the PPR, and if you disagree with what the doctor writes, you want to calmly and politely ask to speak to the doctor again to get a clarification before leaving the doctor's office.

Some doctors tell injured workers that they are prohibited by Nevada law from taking an injured off work completely.  That is false information.  The doctor has a legal obligation to provide care for his patients regardless of who is paying for his services.  Many doctors, however, feel pressure from adjusters and case managers to give work restrictions instead of taking injured workers off work completely for extended periods of time.   So long as the employer provides work within whatever restrictions the doctor gives on the PPR, the injured worker must show up for work, or take leave without pay if available, or use whatever sick leave is available.   The only other recourse the injured worker has is to request a change of physicians to a more caring doctor.

 

 

How to Contest Your Nevada PPD Award

Under Nevada workers' compensation law, the final settlement, called a  permanent partial disability award (PPD) is based on 3 factors: 1) the percentage of impairment found by a rating doctor, 2) the average monthly wage of the injured worker, and  3) the age of the injured worker when the award is calculated.  If the average monthly wage was calculated correctly on the claim, and the insurer has the correct age for the claimant,  the  percentage of impairment offered by the insurer is the only basis an injured worker has  for challenging the  amount of the PPD award.  Both the injured worker and the insurer can disagree with the percentage of impairment the rating doctor finds. However, injured workers  who file  appeals of their PPD awards, arguing only that the amount of money offered is too low, almost always lose their appeals. 

An injured worker must be able to show a specific error in how the rating doctor determined the percentage of impairment in order to win an appeal regarding  the amount of the PPD award.  Or, if the insurer is refusing to offer the PPD percentage recommended by the rating doctor, the injured worker needs to be able to argue why that percentage is correct.  A review of the PPD award by an experienced  Nevada workers'  compensation attorney is necessary to help an injured worker with a serious,permanent injury decide whether an appeal should be filed or not, and whether money should be spent getting a second rating report.   Many workers' compensation lawyers in Las Vegas will review a rating report for free as part of a free initial consultation.

Rating doctors must use a book called the AMA Guides to Evaluation of Permanent Impairment (currently the 5th edition) to determine the PPD percentage.  The Guides are complex.  Many rating physicians, especially new doctors added to the list,  make mistakes.  While the Division of Industrial Relations is supposed to check PPD reports,  it is really up to the injured worker  and her work comp lawyer to find any errors, and to then file an appeal and get a second rating within 70 days.   Injured workers frequently think that the rating doctor has made a math error in adding the percentages in the last section of the report.  An experienced work injury lawyer can explain to an injured worker that  the Guides have charts requiring  that numbers be combined rather than added to arrive at the right percentage.  

If the injured worker' decides to contest the PPD award, he must first file a timely appeal   on the request for hearing form provided with the PPD offer.  Next, his attorney obtains the name of a rating doctor from the rotating list from DIR.  The attorney then sends a complete copy of the client's medical records to the assigned rating doctor, schedules an appointment for the rating exam, and pre-pays the current fee for a rating.  The fee for a rating,  effective 2/1/09 through 1/31/10 is $630.80. ( When hiring a work comp attorney, an injured worker should ask whether the lawyer goes with his or her clients to rating evaluations.)  

If the second rating doctor finds a higher percentage of impairment, the report is sent to the insurer.  If the insurer won't pay the higher PPD, the hearing officer may, or may not, award the higher PPD when the appeal is heard.  There is no guarantee that the second rating doctor will find a greater percentage of impairment.  If the second rating is lower than the first, the injured worker simply withdraws the appeal, and accepts the amount that the insurer has previously offered.  The hearing officer may, or may not order the insurer to pay any higher percentage, and the hearing officer can order the insurer to reimburse the injured worker for the cost of the second rating.  Both the insurer and the injured worker have the right to appeal the hearings officer's decision to an appeals officer. 

A hearings officer or appeals officer may order a third rating with either a mutually agreeable rating doctor or the next assigned rating doctor from the rotating list.  An injured worker is usually prevented from receiving any portion of his PPD award in a lump sum if the amount of the PPD is appealed, so the injured worker  will want to make sure that he or she has been advised by an experienced Nevada workers' compensation attorney before deciding to litigate this issue.  Once the injured worker elects to receive a PPD award in a lump sum and is paid, there is nothing that can be done to correct any wrong percentages of impairment.  As it costs the injured worker nothing to have the PPD offer reviewed by a knowledgeable attorney in Nevada workers' compensation law, it would be unwise to accept an award without first knowing whether it is correct or not.

Nevada Permanent Partial Disability Awards Explained

When an injured worker's treating physician reports to the insurer that there may be a permanent impairment, the adjuster should schedule an impairment evaluation with a rating doctor. The impairment percentage determined by the rating doctor results in a monetary settlement known as a permanent partial disability award (PPD).  Rating doctors are chiropractors and physicians who have taken a test on how to determine permanent impairment using the criteria in the AMA Guides to Evaluation of Permanent Impairment (currently the 5th edition).  Those doctors' names are on a rotating list of rating doctors  maintained by the State of Nevada Division of Industrial Relations.

If the injured worker or his attorney do not agree with the adjuster on a particular rating doctor to do the exam, the adjuster must schedule the exam with the next doctor assigned from the rotating list.  A chiropractor may perform the rating exam if the injury is to the musculoskeletal system (spine, knees, shoulders, feet, hands, etc.).  If the injury is to internal organs or is very complex, only a medical doctor will be assigned.   Only qualified eye doctors rate vision impairment.  The rating doctor cannot be a doctor who has treated the injured worker or who has been asked to do a consultation.

The rating takes place at the doctor's office. The adjuster is responsible for sending all of the medical records before the exam.  However, it is not unusual for records to be missing.  Almost all rating doctors allow the injured worker's attorney to be present for the exam.  The insurer must pay for the initial rating, and the cost of a rating depends on the number of body parts injured.  Effective for 2/1/09 through 1/31/2010, the cost for up to two body parts is $630.80.

The AMA Guides give detailed instructions to the rating doctor on how to determine an impairment percentage for each body part.   Many injuries are rated by measuring how much motion is lost in the joint.  Some injuries are easy to rate, such as amputations. However, most injuries require multiple measurements and depend on the doctor's ability to apply the Guides correctly.  There are often significant differences in rating percentages depending on which doctor is doing the exam.

Not every injury requiring a surgery is ratable.  An injured worker's ability to return to work is not used to determine impairment. Pain is not ratable, but injuries to particular nerves can be rated.

The rating doctor sends his report to the insurer within 14 days of the exam.  The insurer must then make a written offer within 14 days of receiving the report.  The offer must be based on the percentage of impairment determined by the doctor, or the insurer must explain in writing why the insurer disagrees with the percentage.  Injured workers who disagree with the percentage given by the rating doctor, or with a lesser percentage offered by the insurer, may file an appeal and obtain a second rating from another rating doctor assigned from the rotating list. (For more information go to the blog "I Disagree with My PPD Rating".)

The PPD award is calculated by using the percentage of impairment given by the rating doctor, and the average monthly wage of the injured worker, and the injured workers age at the time of the award.  It is necessary to have the actuarial tables and the correct statutory formula to correctly calculate the award. (See DIR forms 9a and 9b).   Injured workers with the same percentages of impairment for the exact same injury will receive different PPD awards depending on how much money they were making at the time of their accidents, and how old they are.

An injured worker may accept a PPD award in a lump sum, or may elect to receive the award in installments until she is 70 years old.  Awards taken in a lump sum are reduced to present value. If the injured worker's impairment was greater than 25%, only the equivalent of a 25% PPD can be taken in a lump sum.  The percentage over 25% is paid in installments.

Although the PPD percentage is not based on an injured worker's ability to return to work, the percentage does govern the length of a retraining program that can be offered if the injured worker is entitled to vocational rehabilitation services.  (See blogs and articles on vocational rehabilitation for more information.)

Please note that this is only a summary of how permanent partial disability awards are determined in Nevada.  Pertinent statutes andregulations are:  NRS 616C.100, NRS 616C.490, NRS 616C.495,  NRS 616C.110, NAC 616C.1162, NAC 616C.103.  Many attorneys offer a free review of a PPD rating report for signs of obvious errors.

How Much Retraining Can An Injured Worker Get in Nevada?

Nevada law (NRS 616C.555), provides that the length of a retraining program that may be authorized is determined by the permanent partial disability impairment percentage (the PPD).   This law does not make a lot of sense in that a an injured worker may have a high PPD under the AMA Guides to Evaluation of Permanent Impairment, but may be capable of returning to work, particularly if the injured worker’s job was sedentary.   Similarly, an injured worker may rate a low PPD under the AMA Guides , but may not be capable of working unless he is retrained for a long time. Nonetheless, the length of a retraining program is limited by the PPD percentage, regardless of the actual needs of the injured worker.

Injured workers with PPD’s of 1% to 5% may be offered programs up to 9 months long.

Injured workers with PPD’s of 6 to 10% may have programs up to 12 months.

Injured workers with PPD’s of 11% or more may have programs up to 18 months.

Only severely injured workers, or those with exceptional circumstances may obtain programs that are longer under NRS 616C.560.  The law is worded in such a way as to allow insurers to offer less than the maximum allowable length of retraining if the insurer believes that the injured worker could be retrained to gainful employment in a shorter amount of time. A good vocational rehabilitation counselor will try to request the best program for the injured worker.  Realistically, it is very difficult to find suitable retraining programs for injured workers who were earning high wages at the time of their accidents because of the statutory restrictions on the length of retraining programs.

How Are Benefits Calculated in Nevada?

Once a claim is accepted by the insurer or the third-party administrator handling the claim, if the injured worker is off work for more than five days in a row, or five days within a twenty-day time period, temporary total disability benefits (TTD) are paid.   In order to pay TTD benefits, the insurer must first get information from the employer on a wage verification form that asks the employer what the injured worker’s gross wages were in the 12 weeks before the date of the injury.  Any overtime wages the injured worker earned during  those 12 weeks are included.   This earnings history is then used to determine the average monthly wage.   An injured worker can request that the insurer use a one-year earnings history instead of a 12-week earnings history if that would result in a higher average monthly wage.

The TTD paid is then calculated at 66 2/3% of the average monthly wage. For example, if the injured worker’s average monthly wage is $3000, the TTD benefits would be $2000 if the injured worker were off work for one month.   There is a maximum average monthly wage set by the state each year.   Injured workers who earn more than the state maximum average monthly wage will have their benefits based on the maximum average monthly wage, and will therefore receive less than 66 2/3 of what they were really earning before their injury date.

Regulations address how an insurer is to determine the average monthly wage of injured workers who have not worked for 12 weeks before the date of their injury, or how to calculate average monthly wage of piece workers, or union employees, or other individuals with special circumstances.   These regulations also address when the insurer should exclude days from the calculation if the employee had a certified illness or absence from work so that the average monthly wage calculation is not unfairly too low.   Injured workers who were working for more than one employer at the time of their accident may have the wages of the second employer, called the concurrent employer, included in the average monthly wage calculation. However, it is up to the injured worker to notify the adjuster that there is a concurrent employer and to supply that wage information to the adjuster. 

It is very important that the average monthly wage determination is correct, and that it is as high as it should be for the injured worker. This average monthly wage figure is used to calculate benefits when the injured worker is off work due to the injury, and is also used to determine how much money the injured worker receives for a permanent partial disability award.   The average monthly wage established on the claim when it is closed will also be the average monthly wage used if the claim is ever reopened in the future.   Injured workers who request a free consultation with an attorney should always discuss with the attorney whether the average monthly wage calculation appears to be correct.

Knee and Shoulder Injuries at Work

 Work-related traumatic injuries to knees and shoulders are common. These are two of the most complex joints in the body.  If an injured worker is not getting better with physical therapy, reduced activity, and drugs to reduce inflammation, the initial treating physician may then order a MRI to better diagnose injury to the ligaments, tendons, and cartilage. The clinic physician  may also refer the patient to an orthopedic physician.  An injured worker may ask for a specific orthopedic physician on the insurer's provider list. 

Nevada workers in occupations that require extensive kneeling, heavy lifting, squatting and climbing are at risk of  meniscal tears to the knees.  (The menisci are pads of cartilage that act as cushions between the femur and tibia bones, and they help distribute body weight and minimize friction within the knee joint.)  Most meniscal repairs can be done at an out-patient surgical center with an instrument called an arthroscope that creates only small scars.   Recovery time is usually quick, and  if a partial meniscectomy is done, a 1% whole person permanent partial disability award is given.  If you have had a knee surgery on your accepted workers compensation claim and the insurer tries to close your claim without a rating evaluation, you should consult with an attorney right away.

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Job Termination and Benefits

When an injured worker is terminated, and the reason for job termination, are important.  If an injured worker files a claim for an injury after he is fired or layed off, then the law presumes that the claim is not valid.  Recently, the Nevada Supreme Court interpreted NRS 616C.150(2) in Levinson v. Milko, 124 Nev. Adv. Op. 35 (2008), and stated that the injured worker must prove that the injury did not occur after the worker was terminated.

Until recently, it was difficult for injured workers to get temporary total disability benefits while recovering from injuries while they had temporary work restrictions if the employee was fired while working on temporary light duty.  The insurer would deny TTD benefits because the employer would have had light duty work available if the employee had not been fired for cause.   Hearings and appeals officers rarely questioned the reason the employer fired the injured worker.

A.B.281, Section 5 amends NRS 616C.232 to make it clear that only compensation for TTD may be denied.  S.B. 195, Section 4, additionally amends that statute, effective October 1, 2009, to require that only a discharge for gross misconduct will disqualify an injured worker from TTD benefits. 

Maximum Average Monthly Wage Used to Calculate Benefits

When an injured worker is taken off work by the treating doctor, the insurer pays the injured worker 66 2/3 of the injured worker's average monthly wage if it does not exceed the state's maximum average monthly wage for the year in which the accident occurred.  For injuries occurring after July 1, 2009, the maximum average monthly wage has been certified by Nevada's Dept. of ESD as $5,208.60 a month.   That means that an injured worker who is unable to work for a month can receive a maximum of $3,472.40 a month in benefits.  As benefits are usually paid every two weeks, and each day in a 14 day period is counted, the bi-weekly benefit check would be $1,603.88.  If the injured worker is earning less than the state maximum average monthly wage, the benefit is 66 2/3 of the actual gross wages earned.  Rate charts showing the maximum average monthly wage going back to fiscal year 1974 are at this link.

The period of earnings that are examined is usually a 12-week period immediately preceeding  the date of the injury.  However, an injured worker may request that the insurer use a one year earnings history, or the full period of employment if it is greater than 4 weeks, but less than a full year, if it would result in a higher average monthly wage calculation.  The regulations on how to fairly calculate an injured worker's average monthly wage begin at NAC 616C.420.  If an injured worker has an unusual employment arrangement, has more than one employer at the time of his accident, or thinks that the benefits paid by the insurer are less than 2/3 of his typical monthly gross income, a free consultation with an attorney would be wise.   The average monthly wage that is established by the insurer to calculate the amount of temporary total disability benefits is also used to calculate how much a final permanent partial disability award will be at the end of the claim.  It is one of the most important determinations the insurer makes on the claim.

Little Change to Rules on Choice of Physician

The 2009 legislative session was preoccupied with the economic crisis,  the state budget, and an unprecedented number of bills vetoed by the governor, the majority of which  were promptly reaffirmed by the state assembly and senate. Injured workers seeking reforms didn't stand much of a chance to make significant changes in this climate.   However, Assembly Bill 281 made some minor reforms to NRS 616C.090, the law allowing insurers to establish exclusive providers lists from which injured workers must choose a treating doctor. 

Section 3 to A.B. 281 clarifies that an injured worker may request an alternative choice of physician from the insurer's provider list without the insurer's approval , if the alternative choice is made within 90 days after the injury.   However, expect insurers whose initial denial of the claim is overturned to continue to argue that the injured worker has no right to choose an alternative treating physician after 90 days, even if it takes more than 90 days to get the claim accepted after a lengthy appeals process.

This bill also clarifies that an injured worker may request an alternative physician from the insurer's provider list after 90 days, and if the insurer denies this request, it must give a specific , written reason for denying the request .  In other words, the insurer can no longer deny the request simply because the request was made  90 days after the injury.  

I think the most helpful change to the law is the addition of a provision in section 3 that a written request for a change of physician that includes the name of the new physician (who is on the insurer's provider list), will be deemed granted if no action is taken on the request by the insurer within 10 days. Whether the insurer can subsequently issue a written denial with appeal rights under this amendment will undoubtedly be the subject of debate during  future appeals .

Two years ago, in Valdez v. Employers Insurance Company of Nevada, 123 Nev. Adv. Op. 21 (2007), the Nevada Supreme Court held that injured workers with accepted workers compensation claims have no substantive right to choose a treating physician, and can be required to treat with physicians contracted by the insurer or employer to provide care.    The court went on to state in that case that the Nevada legislature may retroactively change the manner in which an injured worker may select a physician, and may impose limits on that selection procedure.   The recent amendment to the law  on selection of an alternative physician takes a little bit of the sting out of the Valedez ruling. This amendment became effective July 1, 2009.

Scholarship Fund Available for Dependents of Deceased Injured Workers

Children, spouses, or other legal dependents of employees whose industrial injuries result in death or permanent total disability may be eligible for a scholarship with the College of Southern Nevada.  This scholarship was established by the Nevada Self Insurers Association.   For more information on how to apply for this scholarship, contact Jamille Watson (702) 651-5831 at the College of Southern Nevada Foundation, Sort Code WE32, 6375 West Charleston Blvd., Las Vegas, NV 89146-1164.

How to Get Medical Care in Another State on Your Nevada Claim

If you reside in another state and were injured while working temporarily in Nevada, and you have a a Nevada claim, you may want to move back home to have family and friends around to help you while you still need medical care.  While it can be more difficult to obtain medical treatment and benefits when you are in another state, with some careful planning, it can be done.  Either you, or your attorney, should do the following :

1. Notify your adjuster in writing of your new address and phone number.

2. Before you move, find a doctor who is willing to treat you and who will accept what the Nevada fee schedule provides for payment for medical services.  Provide this link to the doctor so that the doctor's office has the Nevada fee schedule.

3. Request authorization from the adjuster for out-of-state care with the doctor you have chosen to treat you, and tell the adjuster that the doctor will accept the Nevada fee schedule.  Occasionally, the adjuster will have a network of doctors in other states, and you will have to choose a treating physician from that network.  While prior authorization is necessary under the regulations, it cannot be arbitrarily denied by the adjuster.

4. Have the doctor complete the same  physician progress report form the Nevada doctors use to let the adjuster know whether you have work restrictions or should be off work completely.  Be aware that if your employer had temporary light duty work available for you when you moved from Nevada, you will not be entitled to compensation benefits unless your doctor takes you off work completely.

5. If your doctor states that you may  have a permanent impairment when you are released from care,  the adjuster should pay you to return to Nevada to have a rating evaluation.  The adjuster should schedule the rating appointment  within 30 days of receiving your doctor's last report.

6.  If you run into problems and must file appeals on adverse letters from the adjuster, call the hearings division and request that you be allowed to participate in the hearing by telephone if you do not have an attorney representing you.

Managing out-of-state claims does take more planning and often  more effort with doctors who are not familiar with Nevada's workers compensation system.  However, out-of-state care may be very important to you if you are seriously injured and want to go home for care.  You do need to be aware that while medical care should not be comprised with your move back home, your entitlement to other benefits may be affected.