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

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.  

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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.   

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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.

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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.

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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. 

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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.

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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.

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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.

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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.

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