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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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

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

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

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

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.  

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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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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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.

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.

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.

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.

 

 

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.

  

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.

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.   

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.

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.

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.

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.