Independent Medical Exams Are Rarely Independent

 When an injured worker in Nevada gets a letter requiring attendance at an "independent medical examination",  it's reasonable to assume that the doctor will in fact be independent and objective.  Unfortunately, there is nothing independent about an adjuster choosing which doctor will second-guess  another doctor's opinion.  For example, if a treating doctor reports that a herniated disc was caused by the work accident, and the adjuster doesn't like that diagnosis, the adjuster might require that the injured worker attend an "independent medical exam" (IME) with a doctor the adjuster knows will instead diagnose just a lumbar strain. 

I see the same doctors used again and again by some adjusters because they can rely on the IME doctor to give the "right" answers to a letter the adjuster sends only to the doctor.  Not all adjusters engage in this unfair practice, but enough do that it is a problem.  The adjuster should at least be honest about what the exam is and call it a consultation ordered by the insurer or employer. 

Knowing that an IME doctor is not really independent, can an injured worker refuse to attend the exam?  No, unfortunately, not. . Nevada law allows an adjuster to schedule a consultation with a physician the adjuster chooses, and if the injured worker won't attend the appointment, his benefits can be suspended until he does attend.  NRS 616C.140. 

 If the injured worker is represented by an experienced workers' compensation attorney, there are various strategies to counter the loaded IME.  One is to file an appeal immediately upon receipt of a letter from the adjuster scheduling with a known defense doctor.  Once the claim is in litigation, an appeals officer could order another IME, but one that is with a doctor agreed upon by the attorneys.  If the attorneys cannot agree on a doctor, the appeals officer usually asks the attorneys to give the appeals officer three names, and the appeals officer chooses the doctor.  The appeal officer will also order that no one but the injured worker speak to the IME doctor, and the IME doctor must answer only questions asked by the appeals officer in a document called an interim order. 

--Written by Virginia Hunt, Hunt Law Office


When a Win is Not a Win- Stay Orders

 If an injured worker in Nevada successfully convinces a hearing officer to reverse an adjuster's action on a claim, the insurer and/or the employer has the right to file an appeal to an appeals officer.  The insurer or employer must file their appeal within 30 days (plus 3 days for mailing of the hearing officer's decision).  The insurer or employer usually wait until the last possible day to file an appeal.  Whether the insurer has to comply and do what the hearing officer ordered depends on whether the insurer is able to obtain an order from an appeals officer staying the decision of the hearing officer until the next appeal is decided by the appeals officer.  

 A Motion for Stay is the legal document that the insurer or employer files with the appeals office asking the appeals officer to order that the insurer does not have to do what the hearing officer ordered.  The insurer or employer who files an appeal of a hearing officer's decision almost always files a Motion for Stay when they file an appeal from a hearing officer's decision.  The insurer usually argues in a Motion for Stay that because the law does not allow an  insurer to recover any benefits it must pay before its appeal is decided by the appeals officer, the decision of the hearing officer should be stayed.
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Work-related Car Accident Claims Are Complicated

 If you are injured while in the course and scope of your employment while driving, and the accident wasn't your fault, your case is more complicated than the usual work injury case.  I urge you to consult with a knowledgeable attorney so that you do not lose important rights and sources of recovery available to you.  

Not all personal injury attorneys are knowledgeable about Nevada's workers' compensation law. If the driver who caused the accident has only a minimal liability policy of $15,000,  your workers' compensation benefits may be even more important to you than your personal injury attorney realizes.  Also, because the workers' compensation insurer who pays for medical or compensation benefits on your claim is entitled to share in any recovery against the person who is at fault for the accident,  your lawyer will be important in negotiating who gets what portion of any settlement monies.   You may find that you need both a workers' compensation attorney in addition to a personal injury attorney to make sure that you are getting all benefits and monetary damages available to you.  Here are some important questions to ask any attorney you meet before you decide who will be representing you:

  • Will the attorney be representing  you on your workers' compensation claim, or just on your personal injury claim against the driver who hit you?  Workers' compensation law has a different court system to decide disputed issues with insurers, and is based on laws passed by the Nevada legislature.  Personal injury cases are decided under tort law, based on traditional common law and statutory law.  While most personal injury cases involving moderate damages are decided by arbitration or by short trials in front of fewer than twelve jurors, personal injury law is very different than workers' compensation law,  even if the same injury is involved.
  • If you only hire a personal injury attorney and try to handle your workers' compensation claim yourself, is your personal injury attorney aware that under  Nevada workers' compensation law, you must see only doctors on your insurer's provider list?  When  the  adverse driver's liability policy limits are low, you don't want to unnecessarily pay for medical treatment on a lien basis from your portion of a personal injury settlement if you can medical treatment under your workers' comp claim.
  • Has the attorney asked you about what other motor vehicle policies might have coverage available to compensate you?  
  • Does your personal injury attorney use a subrogation lien agreement to address what offsets the workers' compensation insurer will assert after your personal injury case is settled, both on an open workers'  compensation claim and in the event the claim is reopened? 
  • Resist "making friends" with the adverse driver's insurance adjuster who may contact you before you hire an attorney.  Their job is to pay the least amount possible.  Do not give recorded statements, and do not agree to settle your claim without the help of an attorney who knows that the industrial insurer's subrogation lien must also be paid or negotiated. 

--Written by Virginia Hunt, Hunt Law Office

Older Injured Workers

 Older employees in Nevada who have a job accident resulting in an injury, or those who have an occupational illness don't fare very well under our current workers' compensation system.  For the majority of injured workers who have a work injury or illness who only miss a small amount of time and need a few visits to a doctor, the system works alright.  But those who have a serious work injury or occupational illness and who are older find the system isn't very friendly to them.  Here's why.

First, an injury inflicted on an older body often takes longer to heal.   Doctors who are hand-picked by insurers are already under pressure to return injured workers to light duty work programs or to full time employment just as quickly as possible.  If a surgery is required, you can bet that the adjuster will be scrutinizing the MRI and doctor's notes looking for evidence of a pre-existing condition that they will want to exclude from treatment.  The adjuster may wait until you complete the form asking about prior medical conditions and wait until she gets the records from any doctors who have treated the injured body part in the past.  Obviously, our bodies do deteriorate as we age, and both your adjuster and assigned doctor may be all too ready to blame your symptoms on age as opposed to the work injury.  

Secondly, now a job is just as important to the financial survival of  an older worker than it is to a younger one.   Many of us have had to face the financial fact that working more years until retirement will be necessary as a result of a bad economy.  Most people over the age of 50 thought they would be better off financially than they  are today. . Continuing to work full time jobs  past the anticipated retirement age is now the reality for many Nevadans. The same shoulder injury to a 60-year old worker is probably going to require more recovery time than one to a 20-year old worker; more time that the older injured worker has make ends meet  receiving comp benefits or light duty wages instead of full wages. 

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Hiring a Lawyer: Things to Consider

 Here's a rather lengthy article by the staff writer for Lexis Nexis Workers' Comp. Communities, a website for workers' comp lawyers, about a conference I spoke at on the topic of why injured workers hire lawyers.   it was an interesting panel discussion with both defense lawyers and claimants' attorneys.  My bottom line message was that all injured workers need reliable information on the claims process, what to expect, and what their rights are under the law.  I also emphasized that only about 10% of all injured workers need a lawyer.   Clients who do hire an attorney  should come away from an initial consultation feeling that hiring the lawyer will be a valuable experience; valuable in the sense that the attorney will provide useful knowledge about your medical care, your compensation benefits, an award, and how to guide you through retraining.  It's rarely  just about money with my clients.    Virginia 

 My Big Fat Annual Conference: Why Injured Workers Lawyer Up

by Karen C. Yotis, Esq., a Feature Resident Columnist for the LexisNexis Workers’ Compensation eNewsletter, provides insights into workplace issues and the nuts and bolts of the workers’ comp world.


Legal, insurance, and business professionals go to conferences to learn about the cutting edge new stuff, to attend the meet-and-greet events where the booze (and the blarney) flows free, and perhaps to be inspired by the energy that invariably builds throughout a good conference venue over the course of days. But when you come right down to it, people endure the travel and lost time away from the office, and cough up some pretty hefty registration dollars in most cases, because conference attendance can create—especially for the well-initiated—the kind of solid new business potential that can have a noticeable effect on a company’s bottom line.

Since conferences are like El Yunque when it comes to making rain, it should come as no surprise that the conference planners for the National Workers’ Compensation and Disability Conference & Expo, which has been running for over 22 years, catered to the crowd by including a session called Top Reasons Why Injured Workers Get Attorneys in their 2013 program repertoire. Attendees who stayed for Friday sessions rather than deciding to beat the rain out of Vegas were treated to a panel discussion about the mindset, motivations, and foibles of the workers’ compensation client from both sides of the injured worker/liable employer fence.

Presenters Martin Klug (a defense lawyer), Virginia Hunt, (a former Nevada industrial case appeals officer who now exclusively represents injured workers), Alan S. Pierce (an employee attorney) and Kevin Connors (a defense lawyer), did not disappoint. They explained how to pinpoint injury cases where attorney representation is basically unavoidable, how to recognize the profiles of injured workers who are most likely to litigate their workers’ compensation claim, and how to recognize why some states have higher attorney involvement than others. But they also delved into the aspects of frictional relationships—and the permutations of the legal process—that drive workers and their employers to seek legal help. In short, they provided precisely the type of valuable insight that is offered at NWCDC conferences, year after big fat year.

Now let’s be perfectly clear—this was not a discussion about the foibles of representing malingering claimants, a group whose motivations for engaging an attorney are quite particular—and quite different—from the group the presenters focused on. This session was about the type of injured worker for whom a blown out disc is the last thing to expect when he or she goes to work on a Friday morning. Concentrating solely on the mindset and motivations of people that have a new temporary or permanent medical condition that is unexpected by both themselves and their employers, the panelists delved into the various common and perhaps not so obvious reasons why these generally non-litigious (and typically long-term) employees engage an attorney to represent them in their workers’ compensation claims.

One more qualifier: the expertise shared in this session in no way resembles what Martin Klug referred to as the “silly form of paternalism” that underscores the recent list published by the Missouri Department of Labor and Industrial Relations of reasons why a workers’ compensation claimant should engage an attorney. Klug pointed out that a pro se claimant is not a per se incompetent claimant and that there are certain injured workers who can solve some legal problems on their own without (gasp) the benefit of anylegal representation. As long as the pro se claimant: (1) knows the procedure that is involved and (2) can use those procedural mechanisms to maximize results, that claimant will most likely remain pro se. It’s when these two criteria are not met that the workers’ compensation case begins to fall apart and the pro se claimant becomes a client.

Having eschewed the Missouri DOL’s hand-holding approach to protect injured workers from the employers’ (or the comp carrier’s) so-called “seduction of the innocent,” and giving full credit to the claimant who has the chops to do things the pro se way, Klug depicted a more updated reality of a workers’ compensation claims process that is very much changed from the days when a claimant went to a doctor two or three times, a carrier paid some money, and the claim file was closed. There are too many competing interests and too many issues on the table today, particularly with matters relating to liens, subrogation, medical creditor claims, Medicare Secondary Payer Act matters, social security, and death/dependency issues, that even the most determined pro se claimant may be forced to abandon any plan of going it alone.


All members of the panel agreed that certain scenarios or situations that occur at the beginning of a workers’ compensation claim will almost invariably create red flags that result in a claimant making a call to an attorney. The way that an employer reacts after an injury, the information an employer imparts to the injured employee after the occurrence, and the manner in which the employer treats the employee post-accident are all critical factors in maintaining a good relationship with the injured employee right from the start.

To illustrate, the panelists told the story of the get well card that workers’ comp maven Rebecca Shafer, author of the guidebook Workers Compensation Management Program: Reduce Costs 20% to 50%,recommends employers send to every worker injured on the job. Klug reiterated the critical value of that small gesture in setting the tone that is necessary to build a more amicable (and less expensive) negotiating atmosphere throughout the life of a claim. In fact, during the question period at the conclusion of the presentation, an audience member who implemented one year ago a program in which the company’s in-house workers’ comp person sent all injured workers a greeting card along with her business card, a list of providers, whatever adjuster information was available at the time, and a list of responsibilities and expectations for both parties, reported 50 percent less litigation. That behaviors which fall under the “careless communication” category constitute the top reasons that injured workers seek attorneys is no particular mystery; what stymies is that so many employers ignore the efficacy of a simple wish you well.


In addition to these types of frictional relationship issues, the panelists pointed to a number of additional reasons that can drive injured workers to a comp attorney’s office door.

Some claimants will retain counsel after the initial inquiry from an HR representative or a claims examiner. All four panelists were surprised to find that the initial investigation was inexplicably not a huge driver for business though. Perhaps it is because—as clients repeatedly report—the adjusters are very nice . . .

Neither reader nor conference attendee should be shocked to learn that injured workers flock to workers’ comp attorneys in droves when the money stops. When funds run out that had previously been coming in from salary or through disability, daily living expenses can no longer be paid, and the claimant becomes a client in an effort to have benefits restored. Implicit in these war stories is the admonition that the workers’ comp attorney be conversant in various ways at restarting and continuing the flow of benefits.

A change in employment status also prompts inquiries to attorneys. Injured employees who are fired, transferred, or reassigned often prompts a call to counsel. Particular problems occur on light duty reassignments, which do not accommodate child care or a spouse’s schedule the way the injured worker’s former position did, and post-injury repositioning that involves previously untraveled long distances or that undesirable third shift. Underlying this lesson is a new understanding of the importance and necessity of strategies to fight employers who play hard ball while remaining just inside the technical line of compliance with applicable statutes

The panelists also talked about claimants that seek legal advice because of what they perceive as enforced bad medical care. When injured workers are made to see doctors they may not want to go to, or are forced to receive surgery such as a fusion for a herniated disc (rather than a preferred—and considerably longer—course of physical therapy treatment) and find themselves fused, on drugs, and with ruined lives, they call a lawyer.

The panelists spoke about an entire class of client that go to lawyers because they had a prior good experience in the legal market and want to ensure the same sense of justice the second time around. These formerly satisfied and returning claimants were juxtaposed with the claimant victims, who have gone through the process before, did not get a satisfactory income or result, and get a lawyer to ensure somesense of justice the second time around. These are very different types of clients with very different motivations and expectations that come from two sides of the same coin.

The panelists took special care to take note of an entire client population that is driven by television ads, the internet, and social media. Klug cautioned the audience against the client who thinks a 30-second spot on the morning news is going to guide something like a workers’ compensation claim to a quick resolution. Rather, the sad truth is that the former quick and efficient system envisioned by the 20th century’s “grand bargain” has become a behemoth that takes an interminable amount of time.

There is often a good deal of family prodding. If a spouse, or a parent, or an uncle or a friend thinks an injured worker should see a lawyer, he or she usually does. This kind of a grassroots network can be invaluable to a comp attorney’s client base.

A more complex—and surprising—situation which motivates a visit to an attorney is the injured worker who simply wants to get back to work. According to the panelists, these are the cases that most often get litigated because the employee is being driven toward a settlement where the employer does not have work that will accommodate whatever the restrictions might be. Often a combination of factors—denial of a claim, confusion about what the process is, and some level of dissatisfaction with how someone is being treated—leads to a Gordian Knot of problems and issues that can only be picked apart when workers (and employers) let attorneys handle their case.


Everyone also talked about the legal beat—those procedural, court-related, officially stamped events that invariably confuse and overwhelm injured workers (even the ones who want nothing to do with any kind of a lawsuit against their employer) and send them to attorneys. Whenever someone goes to court, whenever there is any procedural activity within the division, if a claim is in litigation, there is a settlement offer, someone receives a notice of a court hearing, there is a problem with the appeals process, or a plethora of other similar events . . . all of these will have the effect of driving a formerly unrepresented injured worker to an attorney’s office for advice.

Voicing the defense point of view, Kevin Connors was especially sensitive to the issue of time and the excessive amounts of it that must be expended to bring a workers’ compensation case—even one with a low dollar amount—to conclusion. His employer/carrier clients have their eyes not only on the bottom line but on the clock. He encourages the unrepresented to engage an attorney, because counsel will know the process, will have—and be able to impart—reasonable expectations about an outcome, and is best situated to cut through whatever psychological reasons stand between the injured worker and a fair outcome in a case. With defense clients constantly inquiring about when a decision is coming down, when litigation is going to end, or other pending events over which defense counsel has absolutely no control, Connors fell squarely on the side of preferring that a claimant engage counsel to facilitate the process. He has even gone so far as to circle names in the phone book for claimants to call.


The panelists really got down to brass tacks when they began discussing the issue of how people view the value of attorneys, and whether the plaintiff’s bar in particular is marketing itself properly to show that an attorney adds value to the system in terms of understanding the procedure and in terms of maximizing recovery and in dealing with secondary relationship issues. There is a good deal of value add going on, at least in Pennsylvania, where, according to Connors, a well-muscled, well-staffed, highly specialized bar exists for both sides of personal injury and workers’ compensation cases, which refers cases back and forth to take full advantage of the third-party implications in a claim.

Virginia Hunt took the issue of attorney value one step further when she revealed her rain making secret of providing her potential client base—as well as existing clients—with the reliable information that they all seek. The number one reason people contact Hunt is for information, and she provides it to them through a variety of channels, by authoring a blog with original content on her state’s workers’ comp law, writing a booklet for injured workers that she gives away for free and sends to unions and similar groups, as well as publishing articles on recent cases, updates on facts and figures, and what the state’s regulatory agency is doing as far as policing insurers. She provides information in spades with the idea that it will attract those people who will come to her for the information they are not getting from their adjuster, their employer, or from the host of other attorneys that fail to distinguish themselves by providing value in creative ways during the regular course of doing business.

In addition to providing a fresh perspective on the getting and keeping of workers’ comp business, Hunt had helpful advice to share on when to send a potential client packing. She usually spends an hour with each person to determine whether they have suffered a legitimate injury. She also tries to determine if there are other issues, such as whether they like their job, of they see the workers’ comp claim as a way to get out of what they are doing at the moment or perhaps as a way to get some type of retraining, whether they have had multiple injuries in the past, or if they are trying to work the system. She attempts to ferret out these types of potentially problematic facts, along with whatever psychological issues may be lurking, and she always listens to her secretary who can apparently spot a crazy from a mile away.


The panelists continued to return to the theme that the workers’ compensation system imposes a moral obligation on all stakeholders to be fair with one another, which they had all heard throughout the NWCDC conference, particularly with the conference bloggers. (Stop here to consider the value of a national conference that promotes themes that resonate throughout an entire week, not to mention the value add that comes from formally collaborating and engaging with bloggers). Panel moderator Alan Pierce fashioned his introductory remarks and also closed the session around this theme, stating,

“to be an effective advocate, whether representing an employer or insurer in any capacity, whether legal or claims professional or human resource or risk management or whether you are on the claimant side, we have an obligation to work together.”

Although Pierce may be correct, he would also do well to recall what a powerful driver necessity can be. In a system that started simple and has evolved into a complicated, expensive, time-consuming process, the players must work together not only because it’s the right thing to do; they need to work together so that the system upon which they all depend can survive.

Child Support Deduction from Nevada Work Comp Benefits

Workers' compensation benefits, including final settlement awards, called permanent partial disability awards, are generally not subject to assignments or garnishments, and are not subject to attorneys liens or medical provider liens.  See NRS 616C.205.   The one major exception to that general rule is that the statute does allow for payment of past due child support obligations under NRS 31A.150 and 31A.330.    If a claimant is subject to a court order for the a payment of past due amounts, the adjuster must without an amount equal to 25% of the amount to be paid.  An adjuster who is served with an out-of-state child supp port judgment will honor an order.  

Most attorneys ask at the time you retain the attorney whether you have any outstanding child support judgments against  you, because the contingency attorney fee charged by the attorney will be based on what the award should have been without the child support payment.  

--Written by Virginia Hunt, Hunt Law Office

Immigrant Workers in Nevada Need to Know Rights When Injured

The Immigration Policy Center reports that  Latinos and Asians make up one-third of all Nevadans. 15% of registered voters in Nevada are immigrants or the children of immigrants.  Immigrants comprised 25% of the state's workforce in 2011.  It is estimated that 10% of the state's workforce in 2010 were unauthorized immigrants who contributed millions in sales taxes and property taxes. 

Latino-owned business and Asian-owned businesses contributed significantly to the state's economy through sales of goods, and by employing thousands of workers.  The figures are likewise impressive on what Latino and Asian immigrants contributed to the Nevada economy as consumers and taxpayers.  Whatever your thoughts are about illegal immigrants, the statistics show that Immigrants, including those who are not yet authorized to work in the United States, are essential to Nevada's  economy.

Unauthorized workers are entitled to the same benefits as any other injured worker under Nevada law (NRS 616A.105), with one important exception.   An undocumented immigrant worker cannot receive vocational rehabilitation services or a vocational award of money instead of retraining.   However, the injured worker may receive medical care, compensation benefits while they are recovering from their injuries and can't work, and they may obtain a permanent partial disability award.  See, Tarango v. SIIS, 117 Nev. 444, 25 P. 3d 175 (2001).

<p>--Written by
<a href="">Virginia Hunt, Hunt
Law Office</a></p>

The First 30 Days of Your Nevada Work Comp Claim

 The first 30 days of a serious job injury claim are confusing and scary.   Here are a few important tips :

  • Keep a copy of the C-4 Claim for Compensation form that you filled out to start the claims process when you first got medical care.  Check it to see whether you were taken off work or released to work with restrictions. 
  • It is the worker's comp adjuster who will be making important decisions on your medical care and compensation benefits.  Ask your employer or a clinic staff person to give you the adjuster's name, phone number and fax number.
  • An adjuster has 30 days to accept or deny your claim.  If your employer questions whether you were hurt at work,  your assigned claims adjuster may want to take a recorded statement by phone before deciding to accept or deny your claim. (Now would be a good time to get a lawyer if you think your claim will be denied.)
  • Unless you require real emergency care by a specialist, don't expect your adjuster to approve expensive diagnostic tests like MRI's until the adjuster decides to accept your claim.
  • If you don't like the medical care at the clinic, unless you have an emergency, the adjuster won't allow you to transfer care to a different doctor or clinic until the claim is accepted.  
  • If your claim is accepted and you need to see a specialist like an orthopedic physician, fax a request to your adjuster for the names of the doctors on the provider list.  You may request transfer to a doctor you choose from the provider list.   Try to make an informed choice.  
  • In order to receive compensation benefits, you must be off work for 5 days in a row, or 5 days within a 20-day period of time.    You must have an off work slip by the authorized treating doctor.  Calling in sick without a doctor's note will not qualify you. 
  • If the clinic doctor releases you to return to work with restrictions, you must call your employer and ask whether your employer has temporary light duty work within your restrictions.  Show up for work if your employer tells you to come in for modified work. If your employer doesn't have modified work available, then you need to request work comp benefits from the adjuster.
  • if you are worried you may need a surgery or that you will be unable to return to work soon, get a free consultation from a reputable attorney so that you know what else to expect and what your rights are under the law.  If you aren't good about reading the fine print of papers you receive in the mail about your claim,  getting legal help is even more important. 

Workplace Homicides and Violent Work Injuries

 Preliminary reporting by the  U.S.bureau of Labor Statistics for 2010-2011 states that there were 458 homicides in the workplace nationwide.   22  of those work fatalities were in Nevada and were  caused by violent  co-workers, employers or others.  However, not all violent deaths or injuries that happen at work are covered under workers' compensation insurance. 

 An employee who is the victim of workplace violence by a co-worker, employer or a deranged stranger may or may not have a compensable claim, depending on whether the injury or death arose out of and in the course and scope of employment.  Just because an injury or death occurs at the workplace does not mean that it is compensable as a workers' compensation claim.

For example, I received an inquiry by an employee who was physically attacked and injured by her supervisor when she told her supervisor that she was quitting her job.  If in fact the supervisor was so enraged by the employee's resignation at a time when the company was short-staffed, the physical injury to the employee will probably be regarded as work-related.  If, instead, the supervisor's attack on the employee was caused by the employee dating the supervisor's boyfriend, then it can't be said that the work injury arose out of and in the course and scope of employment.

--Written by

Less Hours and Less Pay for Light Duty?

Some employers have a nasty way of reducing  injured employees hours who are recovering from a work accident with temporary light duty work restrictions.  You may be entitled to workers' compensation  called temporary partial disability benefits if your take home pay is drastically reduced.  Here's how to know whether you are entitled to these benefits, and how to get them:

1. Find the letter from the adjuster that tells you what your average monthly wage is and what your daily compensation rate is when you are taken off work competely by your treating doctor.  If you haven't received an average monthly wage determination letter, you will have to ask the adjuster to send you one so that you both know whether you are entitled to TPD while working reduced hours on light duty

2. Muliply the daily compensation rate by the number of days in your employer's pay period.  If your employer pays you bi-weekly, you will multiply the daily rate by 14 to get your biweekly compensation rate. If your employer pays you weekly, mulitply the daily rate by 7.

3. Get your paycheck stub and note what your net wages are (meaning those after taxes and deductions).  Do this for each paycheck while you are working light duty.

4. If your net wages are less than your compensation rate for the same time period, then you are entitled to the difference.  (Subtract your net wages from your compensation rate to get the difference.)

5. Send a copy of each paycheck stub that is less than your compensation rate to the adjuster with a request that the adjuster pay TPD.  Allow two weeks before you bug the adjuster about not getting a check. 

6. Make sure that it is your employer that is reducing your hours; not that you are asking for less hours or calling in sick. 

--Written by

When Premiums Go Up, Will Reported Injuries Go Down?

 The Las Vegas Chamber of Commerce magazine "Business Voice"  reported in the June 2012 edition that Nevada employers with a history of claims should expect to pay higher premiums beginning on March 1, 2013.   Premiums are set by the National Council on Compensation Insurance. The number and severity of work injuries are compared with the claims histories of similar employers.  Employers with expensive lost time claims will pay much higher premiums than employers  with fewer claims.

This magazine article advises employers to make sure that every claim is accurate and closed in the next three months before new policy premiums take effect.  It also encourages employers to prevent future claims by making the workplace safe.   It discusses that employers with temporary light duty work programs can save thousands of dollars in premiums by keeping the claim as a medical only claim.  ( A medical only claim is a claim where only medical bills are paid, and no lost time compensation benefits are paid.)

These are good suggestion for employers to save on workers' compensation premiums. However, I'm concerned about the statement  that employers can lower the number of claims filed  by rewarding employees who don't have claims..   While such reward programs undoubtedly  result in fewer claims,   However, some employers go too far and use so-called safety  incentive programs as a way to intimidate and discourage employees with job injuries from filing legitimate claims.  

Employers should not be offering to pay injured employees cash for not filing a claim after an employee is injured. Sometimes a person does not know how seriously they are injured in the first days or weeks after a work accident.  For example, the sudden onset of low back pain  at work after lifting a heavy truss could be just a bad sprain.   Not wanting to be the one to ruin his employer's claim-free record this year,  this injured worker might not report the injury as work-related when he first gets medical treatment.  Only after the injury does not improve, and a MRI shows a herniated disc , does the injured worker file a claim.   That claim may be denied by the insurer however, because it \was not reported  and filed right away.

--Written by

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

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

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

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

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

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

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

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

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

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

--Written by

5 Huge Mistakes Injured Workers Make

1. Going along with bad medical care

You don't have to accept substandard medical care just because you were injured at work. It is hard to correct a botched surgery.  If you feel reluctant or have a gut feeling that the surgeon the insurer has assigned to you isn't very good or isn't listening to you, change doctors.  You have the absolute right within the first 90 days of your claim to change to a different doctor on the insurer's provider list.  And even after the first 90 days, you may still request a different doctor.  Make your request for the provider list in writing, and make your request to change doctors in writing.

2. Getting unreliable information about the claims process 

Instead of relying on friends and co-workers to educate yourself about the Nevada claims process, why not read the blog posts I've written on almost every topic concerning Nevada  workers' compensation claims?  If you want to research the law yourself, in addition to reading the statutes (NRS 616 and 617), and the regulations (NAC 616-617), you must be familiar with Nevada Supreme Court decisions  interpreting the law.  You must also know about the actual practice of the hearings and appeals officers to have some idea of what appeals officers, the district court judges, and Nevada Supreme Court justices are likely to do in your case.    Take advantage of a free consultation with a reputable attorney.

3. Accepting a PPD award when  you want more medical treatment

Even if you don't elect to receive your permanent partial disability  (PPD) award in a lump sum, and the insurer is paying your PPD award  in  installments, you must appeal claim closure if  you want more medical treatment.  First ask the adjuster whether he or she will allow you to return to the last treating doctor for more treatment.  If not, then go to any rating exam the insurer schedules  so that your benefits aren't suspended.  Also, you must file an appeal.  You will have to get a report from your private physician to  show the hearings officer that you need treatment.  Don't wait, thinking that you can easily reopen your claim later.  It's hard to reopen claims.

4. Waiting to add other injured body parts

Remember that you can't reopen a claim to get treatment for an injured body part if it was never accepted before the claim was closed.   If your claim acceptance letter only references some of your injuries, notify the adjuster in writing.  Ask  the adjuster to at least allow your doctor to examine your other injuries before the adjuster outright denies these  injuries to other body parts. File an appeal on time (within 70 days) of any letter the adjuster sends denying injuries to other body parts. You may also need to go to your own doctor using your health insurance if other injured body parts are denied.

5. Not planning for your vocational future

Be realistic and honest with yourself and your doctor when discussing whether you are going to be able to return to your job at a later date.  If you know or think you might not be able to return to your usual occupation, try to find out now whether your employer is likely to offer you a permanent modified job or not.  If you or a family member is dependent on the  health insurance your employer provides, then you must start being creative and persistent now in persuading your employer to keep you despite any permanent physical work restrictions.  Your employer does not have to find you permanent light duty work.  Alternatively, start thinking about retraining programs and start visiting schools that have 9 to 18-month vocational programs. 



Uninsured Employers

The penalties for employers who fail to purchase workers' compensation insurance are high if they get caught, but as the economy continues to tank, more employers are going bare.  If  you are injured on the job and then discover that your employer doesn't have a workers' compensation policy in effect, do the following:

1.  Complete a Claim for Compensation form (C-4 form) the same way you would for an insured work-related injury at a medical clinic or emergency room if necessary.

2. If you do not have a private attorney to help you, go to the Division of Industrial Relations to complete the forms to elect to receive workers compensation benefits under the Uninsured Employers' Claim Account.   The DIR will contact your employer and decide whether or not  you were in fact an employee that should have been insured.  That is the only issue DIR decides.  If DIR decides that you satisfy the legal definition of employee,  then DIR will assign the claim to a third-party administrator to handle the claim.   If you were paid cash only and there is no documentary proof that you were an employee on the day you were injured, you may have difficulty showing that you were an employee.  The address for the DIR in Las Vegas is 1301 N. Green Valley Parkway, Ste. 200.  Phone is (702) 486-9080.

3. The third-party administrator who will be handling uninsured claims for the next three years until June 2013 is Sierra Nevada Administrators, Inc.   That company will handle the assigned claim as if it were an insured claim, first making a determination whether it should be accepted or denied.  If it is accepted, then the benefits payable will be the same as if  the employer had insurance.  Because the claim must first go to DIR to decide whether or not you are an employee, it takes much longer to get a claim accepted.  The injured worker should therefore get the paperwork done quickly at DIR so that benefit checks and medical care aren't delayed. 


Signing Off on a Claim

Many injured workers who call me for information about how to reopen their Nevada workers' compensation claim tell me that they regret "signing off on their claim", and that they wish they had kept their claim open for medical care.  It is true that when an injured worker signs the paperwork to receive a permanent partial disability award (the PPD award) in a lump sum, the injured worker agrees with the closing of the claim, except for any vocational rehabilitation benefits. However, it is a mistake to think that by not signing for a PPD award in a lump sum, the injured worker can prevent the claim from closing medically. 

In order to prevent the claim from closing for medical care, the injured worker must file a request for hearing when the insurer sends a determination letter stating that the claim is closed.  Then after filing this appeal on time (70 days after the insurer's letter closing the claim), the injured worker must get a doctor to write that additional medical care is necessary.  The insurer would not have closed the claim if the treating physician had not reported that more case isn't necessary.

A hearing officer will not order the insurer to keep the claim  open  unless the injured worker is able to convince the hearing officer that, contrary to what the treating doctor said, more medical is in fact required. Most hearings officers are not likely to simply take the injured worker's word that more care is necessary.  That means that the injured worker will probably have to use private insurance or pay  to get a differing medical opinion from another doctor. 

The injured worker should come to the hearing prepared, with a copy of the new medical report for the hearings officer and one for the insurer.  If the new report is persuasive, the hearings officer may then order the insurer to keep the claim while the insurer schedules a visit to a doctor on the insurer's provider list.


More Probable Than Not

Under Nevada workers' comp law, the burden of proof is on the injured worker to show that it is more probable than not that the injury or claimed occupational disease is work-related.  This makes it very difficult to get a claim accepted if your doctor isn't certain that your  injury or illness should be treated under a comp claim.  Your doctor may think that you should instead be getting treatment using your health insurance, assuming you still  have health insurance.

Remember, it is the initial treating doctor at the first clinic that fills out the bottom half of the C-4 Claim for Compensation form.  The doctor must check a box "yes" or "no" that the injury is directly work-related. If the doctor checks the "no" box, or puts a question mark, the insurer or its third-party administrator (TPA) is sure to deny the claim.

You may be sure that your work activity over time is causing your need for medical care, but a hearings or appeals officer will not order your claim accepted based only on your testimony about how you feel.  If your job involves repetitive motions, such as dealing cards, heavy cleaning, constant lifting, bending, or other strenuous physical work, you may be right that you have a compensable claim under existing Nevada statutes and case law. However, you still may have difficulty convincing your doctor that you are entitled to benefits on a  workers' compensation claim, and you need a supporting medical opinion.

When doctors consider whether your injury or illness is work related, they focus on whether you have pre-existing problems, whether there are other equally likely causes of your condition, and whether your need for care might be related to the normal aging process. The doctor must then decide whether your claim should be supported, and  most  doctors form their opinion without the benefit of information about Nevada law.

The law in Nevada is confusing regarding work activities that involve an aggravation of a pre-existing condition.   Keep in mind that doctors aren't experienced workers' compensation lawyers. You will at least want to get a second medical opinion if your initial treating doctor doesn't report that it is more probable than not that your injury or illness is work related. 


Surveillance Investigations of Injured Workers

It is not unusual for an insurer or self-insured employer to hire investigators to videotape injured workers for the purpose of showing that the worker is not as injured as he or she claims to be.  Investigators typically park in front of an injured worker’s home to get a few minutes of the worker going to the mailbox, entering their vehicle, or doing household tasks.  These investigators are not violating the law so long as they are not trespassing, and they may videotape the injured worker in public places as well.  

The real problem with these investigations is that an adjuster will then forward edited DVD’s and investigation summaries to the injured worker’s treating doctor without the knowledge of the patient.  It is only when the injured employee receives a letter that benefits have been abruptly terminated that the employee discovers that their doctor has been influenced by a DVD or an investigator’s conclusions.  The employee is often released by the doctor and has no opportunity to discuss the contents of the DVD with the doctor.  Additionally, unless the employee has an attorney, the employee usually has a very difficult time even obtaining a copy of the DVD.

I have seen DVD's where the person videotaped is not the injured worker, and I have found that many times the doctor will not bother to watch the actual DVD.  It takes time to watch these DVD‘s, as the investigator usually has to catch a minute here and there over several days to compile a DVD.  On the other hand, I have seen cases where the injured worker has claimed severe disability, but is then caught doing very strenuous physical activity that is completely inconsistent.

My complaint is not so much that adjusters and employers hire investigators to sit outside injured workers’ homes. Again, there is nothing illegal with that activity.  Instead, my concern is that it is unfair to the injured worker not to provide her and her attorney with a copy of whatever the adjuster sends to the treating physician.  An injured worker should not be discovering weeks later when benefits are denied or terminated that their physician viewed a surveillance video.  The injured worker and his attorney should have an opportunity when the DVD or investigation report is sent to the doctor to view a copy of whatever is sent to the doctor.

I wrote to the Division of Industrial Relations recently and asked whether DIR has reviewed this issue to formulate a policy.  I was told that DIR has not taken a broad position on the manner in which surveillance videos are sent to doctors, but only investigates particular complaints on a case by case basis if a complaint is filed by an injured worker.  I will be continuing my discussions with DIR on this issue, as I interpret existing law (NRS 616D.330NRS 616B.528) as requiring that the insurer send a copy of a DVD and any investigation reports to the injured worker and his attorney when they are sent to the doctor.   As an attorney, I have always succeeded in ultimately obtaining a copy of whatever is sent to the doctor, but not all injured workers have attorneys or the ability and energy to fight for themselves. 




©01/30/11  Virginia Hunt, Esq.

Occupational Illnesses: When to File a Claim

The Nevada Supreme Court just published a decision favorable to Nevada employees who have illnesses that are caused from their employment.  In City of Las Vegas v. Lawson,  a City of Las Vegas fire fighter filed a workers' compensation claim after her breast cancer recurred, several years after she was initially diagnosed and treated for cancer. The city denied the claim as being untimely,  because it wasn't filed when Lawson was first treated and off work due to breast cancer.  The court found that the claim was timely, stating that an employee must first have knowledge of her disability and its relationship to her employment before being required to give notice and file a claim. In Lawson's case, her doctor did not know or tell her until after her recurrence of cancer, that her exposure to known carcinogens when fighting fires was related to breast cancer. 

Nevada law requires an employee to provide written notice of an occupational disease within  7 days after the employee has knowledge of the disability and its relationship to the employee's employment.   In addition, the employee must file a claim for compensation ( the C-4 Claim for Compensation form),  within 90 days after the employee has knowledge of the disability and its relationship to his or her employment.  NRS 617.342(1), and NRS 617.344(1).  In Lawson's case, the appeals officer believed her when she testified that she did not know of the relationship between her breast cancer and her work as a fire fighter when she was first diagnosed and first off work. 

Please note that the laws pertaining to occupational diseases, including cancer, lung disease, and heart disease are  different,  depending on whether the employee is a fire fighter or police officer, or employed in some other occupation.  Nevada employees in other occupations can rarely  establish a  Nevada workers' compensation claim for cancer. While this case discusses laws applicable only to fire fighters, it has useful application  to all Nevada employees regarding the time limits  for  filing a written notice of injury or /illness and when to  fiile a claim. 

Is Your Staircase Injury Work-Related?

Good news for injured workers.   The Nevada Supreme Court recently issued a new decision clarifying when an injured worker's accident while walking down stairs at work is considered work-related and compensable.  In Rio All Suite Hotel & Casino v. Phillips, the Court held that a poker dealer's ankle injury was compensable.  The dealer was walking down the stairs that lead to the employee's break room when she twisted her ankle. There was no debris on the stairs and the stairs were not dangerous.  The court noted that the dealer was required to use this particular set of stairs six times per shift,, and because she was exposed to a significantly greater risk of falling on these stairs than the gneral public, her inexplicable ankle injury on the stairs was job-related.

Under an  "increased-risk test" adopted by the court, an employee has a workers' comp claim if he is subjected to a risk greater than that to which the general public is exposed.   Examples of an increased risk would be when the employee is exposed to a common risk more frequently than the general public, or when steps are an unusual height, or when the manner in which in employee is required to descend steps increases the risk of falling.   Whether a fall is explained or unexplained is irrelevant.   A prior decision from the court in Mitchell v. Clark County Sch. Dist.,, 121 Nev. 179 (2005) held that an employee who fell on a flat surface at work while walking toward a staircase and then inexplicably rolled down the stairs did not have a compensable claim. 

If you are injured while ascending or descending stairs at work, and your claim is denied, you should consult with an experienced workers' compensation attorney right away.  Ever since the court decided the Mitchell case in 2005, adjusters have been denying all accidents involving staircases at work.  While we can expect adjusters to continue to deny legitimate claims, an injured worker can now argue that the Nevada Supreme Court never intended for every staircase claim to be denied.   The facts of each claim are very important.  Make sure that you bring a copy of all documents concerning your claim when you go for a free consultation with an attorney on your denied claim.  


5 Secrets to Overcoming the Drag Factor has coined the term drag factor for a person, issue, or process that delays a key decision.   More injured workers cite the drag factor and their frustration caused by unnecessary or excessive delay in getting action on their claim as the primary reason for hiring an attorney to help them.  Here are my 5 secrets for overcoming the drag factor and getting the adjuster to act :

1.       Be reasonable in what you request the adjuster to do.

        For example, when you  request a change of physicians, be aware that the adjuster cannot authorize you to treat with a doctor who is not on the insurer’s provider list. So, don’t bother asking to treat with a doctor who isn’t on their list. Similarly, don’t ask the adjuster to pay you benefits if your doctor hasn't  taken you off work. Know what your rights  are before you make your request to the adjuster.

2.       Know how long the adjuster has to respond to your request.

Most of the time, the adjuster has 30 days to make decisions on your claim, and to respond to a request. However, the law provides that the adjuster must respond to a physician’s request for authorization for a medical procedure, or diagnostic testing, within 5 working days. Allow at least a week for the adjuster to review and act on your request before you call the adjuster. Bombarding  the adjuster with daily phone calls, faxes or emails simply annoys the adjuster and is less likely to get a quick response.

3.       Ask in writing, and keep a copy of your request.

 Because appeal times are triggered by written denials or a failure by the adjuster to respond to a written request, you must follow up any phone conversation with the adjuster with a written request.   You want to document that you made a request for action by the adjuster, and that it was denied, or that here was no response by the adjuster.

4.       File an appeal if there is no response

You can file a request for hearing form with the Department of Administration if the adjuster fails to respond to your written request after 30 days. Attach a copy of the written request you made to the appeal form.  Don't file an appeal until you have first given the adjuster 30 days to respond.

5.       File a written complaint with the DIR.

If the adjuster is continually ignoring your requests for action on your claim, write a letter complaining about what is happening on your claim to the DIR. Make sure that you copy the adjuster on this letter. Often just writing such a letter is enough to prompt the adjuster to take appropriate action on   your claim.


Trabajo Ligero: La Ley De Compensacion Laboral en Nevada

Hay dos tipos de trabajo ligero para trabajadores heridos en Nevada:  El trabajo ligero temporario, y trabajo ligero permanente.  Las reglas son diferentes para cada tipo de trabajo ligero.

Trabajo ligero temporario es trabajo ligero ofrecido por el empleador mientras el trabajador herido todavía está bajo tratamiento con un médico.   Trabajo permanente ligero es un trabajo ofrecido por el empleador después de que el médico que esté a cargo del tratamiento le da de alta al trabajador herido con restricciones de trabajo permanentes al final del caso.

Cada vez el empleado visita al médico que está a cargo de su tratamiento, debe recibir un reporte sobre su progreso  médico (PPR). El médico escribe si el trabajador tiene  restricciones temporarias de trabajo están en la parte de debajo de el reporte de su progreso ósea el PPR. El trabajador herido es responsable de tomar una copia del PPR a su empleador y preguntar si el empleador ofrecerá  trabajo ligero que acomoda esas restricciones. Si no le ofrecen trabajo ligero, el trabajador herido recibe beneficios totales temporarios de incapacidad (TTD) del asegurador.

El empleador puede o no puede querer ofrecerle trabajo temporario o permanente ligero.  Si el trabajo ligero temporario es ofrecido, el empleador debe enviar una confirmación escrita al empleado dentro de 10 días, pero la mayoría de los empleadores no hacen esto. Si el trabajo ligero temporario consiste en el trabajo dentro de la misma clasificación como el empleo antes del accidente, el sueldo por hora del empleado debe ser el mismo. Si el trabajo ligero del trabajo está en una clasificación diferente de trabajo, el empleador puede pagar sólo 80% del sueldo que ganaba antes del accidente.

Las reglas con respecto al trabajo permanente ligero son mucho más estrictas. Una oferta permanente de empleo ligero del deber debe ser por escrito, debe permitir al trabajador herido 7 días para responder, y la intención del empleador debe de ser  ofrecer una posición que sea permanente. El trabajo no debe ser humillante ni debe ser degradante, y debe ser aprobado por el médico a cargo de su  tratamiento. Si el empleador no ofrece un  trabajo permanente ligero dentro de 30 días de recibir una copia del reporte sobre su progreso  médico (PPR) cual describe restricciones permanentes de trabajo para el trabajador, el empleado es referido para rehabilitación vocacional.

Health Insurance v. Workers' Comp Claim

An injured worker asks,  "Is it wrong for my employer to urge me  to use my  health insurance to get medical treatment for my  back that was hurt at work instead of me filing a workers' comp claim?"

Yes, it is absolutely wrong for the employer to try to persuade you from using your health insurance instead of filing a worker's compensation claim and completing a Notice of Injury report with the employer.  NRS 616D.120 (1)(a) states that if the Nevada state agency that oversees the workers' compensation system determines that an employer has induced a claimant to fail to report an accidental injury, the employer shall be fined $1,500 for an initial violation, and $15,000 for a second or subsequent violation.  Even if the employer questions whether the injury happened on the job, the employer must assist the employee with the claims process. The employer can then file an appeal if the insurer accepts the claim if the employer wants to challenge it.

In California, a large grocery chain was recently fined a huge amount of money when store managers were caught trying to discourage injured workers from filing proper workers' compensation claims for their injuries by telling them they could instead just use their health insurance.   If an injured worker in Nevada forgoes filing a claim and uses health insurance, a claim that is filed later when it turns out that the injury is serious will almost always be denied by the industrial insurer. The unfortunate injured worker then loses lost time compensation benefits, a potential disability award, and perhaps retraining benefits. Do not be pressured into not filing a claim if you are hurt on the job.


More about light duty work

 There are two types of light duty for injured workers in Nevada:  temporary light duty, and permanent light duty. The rules are different for each type of light duty. 

Temporary light duty is light duty work offered by the employer while the injured worker is still undergoing treatment with a doctor. Permanent light duty is a job offered by the employer after the treating physician gives the injured worker final work restrictions.

Each time the employee visits the treating doctor, he should receive a physician progress report (PPR).   The doctor writes what the temporary work restrictions are at the bottom of that PPR. The injured worker is responsible for taking a copy of the PPR to his employer and asking whether the employer will be offering light duty work that accommodates those restrictions. If not, the injured worker receives temporary total disability benefits from the insurer.

The employer may or may not want to offer temporary or permanent light duty work. If temporary light duty work is offered, the employer should send a written confirmation to the employee within 10 days, but most employers don’t do this. If the temporary light duty work consists of work within the same classification as the pre-accident employment, the employee’s hourly wage should remain the same.  If the light duty work is in a different job classification, the employer may pay only 80% of the injured worker’s pre-accident gross wages.

The rules regarding permanent light duty are much stricter. A permanent light duty job offer must be in writing, it must allow the injured worker 7 days to respond, and the employer must intend for the job to be a permanent position. The work must not be demeaning or degrading, and it must be approved by the treating doctor. If the employer does not offer a permanent light duty job within 30 days of receiving a copy of the injured worker’s permanent work restrictions, the employee is referred

Light Duty Question About Temporary Work

What should I do when my employer gives me work that is not within my temporary work restrictions?

1.  Make sure that your supervisor has a copy of your current work restrictions that are written on your most recent physician progress report. Your employer is entitled to rely on what the doctor has written as your restrictions.  If your employer contends that the work is not outside the particular restrictions as written, then you may need to return to see your doctor as soon as possible to have more restrictions added. Ask your doctor to be very specific in writing your restrictions.  Meanwhile, you must try to do the job assigned until you get new restrictions.

2. If it is clear that the work you are asked to do is outside the restrictions written on the physician progress report, talk to your supervisor first.  Then, go up the chain of command, or to your human resource person to further discuss the problem.

3. If the employer persists in asking you to do work beyond what the doctor has written you can do, then contact your workers' comp adjuster.  In addition to calling the adjuster,  fax or mail a note to the adjuster telling him  that your employer is not cooperating with your work restrictions.  Attach a copy of the physician progress report with your restrictions, state what the employer was insisting that you do, and state when you discussed the problem with your supervisor.  Mail or fax  a copy of this letter to your employer.

4. After you have gone through the above 3 steps, give the employer a reasonable period of time to correct the problem.    If the employer persists in asking you to do work that your doctor does not want you to do, then give your employer written notice that you will not report to work until the employer gives you suitable light duty work. Do not quit your job.  Simply state that you cannot return to work until temporary light duty work is provided that falls within the written work restrictions..  At the same time,  request in writing  that the adjuster pay you temporary total disability benefits.  If the adjuster denies benefits, file an appeal.

The above steps should document that you handled the situation correctly, and that you are entitled to payment of temporary total disability benefits if the employer never does offer appropriate temporary light duty work.

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What To Do If a Body Part Is Not Accepted on Your Nevada Claim

Many times  an injured worker does not realize that other parts of the body have been  injured when he or she is first getting medical care for the most obvious injury and when completing the C-4 claim form.  Directly above the signature line on the C-4 Claim for Compensation form is a boxed area for the injured worker to write what parts of the body were injured.  When the claims adjuster receives the C-4 form, the adjuster notes what the employee says was injured with  what the doctor writes as the diagnosed and treated  injury on the lower portion of the C-4 form. 

The adjuster then  uses the information on the C-4 form, as well as any  available medical records, when sending the  Notice of Claim Acceptance letter.  Most adjusters will state exactly what body parts are accepted on that Notice of Claim Acceptance.  At the bottom of that letter, the adjuster will also tell the injured worker that he or she has 70 days to request a hearing if there is something he or she disagrees with in the letter.  The majority of injured workers who receive a Notice of Claim Acceptance do not carefully read that letter, and do not take any action to make sure that the adjuster sends another letter including any body parts that are not mentioned in the Notice of Claim Acceptance.

Problems arise when the injured worker tries to get medical treatment for a body part that is not specifically mentioned in the Notice of Claim Acceptance.   Adjusters often deny requests for necessary treatment to an additional or different body part weeks or months after the claim is accepted when diagnostic testing reveals an injury to an additional body part.  

Fortunately, the last legislature recognized that injured workers are being denied necessary medical treatment by adjusters taking advantage of injured workers who do not file appeals from a Notice of Claim Acceptance letter that lists accepted body parts.  A recent amendment to NRS 616C.065, effective October 1, 2009,  states that the failure of the insurer to indicate the acceptance or denial of a claim for a part of the body or condition does not constitute a denial or acceptance thereof.   That means that if an injured worker specifically requests that an additional or different body part be included on the claim, the insurer  must make a new determination and give appeal rights again.  The insurer cannot simply state that  a Notice of Claim Acceptance letter was sent and the appeal time to contest the listed body parts has run.

 Even with the recent amendment to NRS 616C.065, an injured worker should immediately request that a Notice of Claim Acceptance letter be corrected if all affected body parts are not listed.  If the injured worker does not realize that additional body parts were injured until much later, then the injured worker should request in writing that the adjuster include the body part.  If the adjuster fails to take action, the injured worker may file an appeal after 30 days from sending his written request to the adjuster.  If the adjuster denies the request to include another body part, the injured worker should promptly file an appeal on the form provided with the denial letter.



Why Report an Injury?

The Las Vegas Sun ran an editorial on 11/18/09 on the under reporting of work place injuries, urging that OSHA do a better job in accurately counting the number of work injuries and illnesses.  The editorial stated that workers often don't report an industrial injury because they are frightened that they will be fired, disciplined, or will lose wages from time off if they report an injury.  In these difficult economic times when many Nevadans are lucky to have any work at all, the incidence of under reporting and late reporting is even greater.  However, the reasons for reporting a work place injury are more important than ever.  If you have recently suffered a work place injury, please consider the following:

1. Most injured workers know their bodies well, and can tell within 72 hours whether they have a serious injury that requires medical attention.  Nevada law requires that an employee make a written accident report to his employer within 7 days of the accident.  Most Nevada employers additionally require that employees immediately notify their supervisor of a work-related injury or illness.  Employers and claims adjusters are quick to deny claims when the employee takes a "wait and see" approach to reporting and filing a claim, particularly if the employee first gets medical care using private insurance instead of going to the designated clinic for work injuries.  Many employers will also see a delay in reporting as a deliberate attempt to avoid a post-accident drug and alcohol test.  

2. The risk of having a legitimate claim denied because  the employee was late in reporting the injury far outweighs the risk of an employer trying to take adverse action against the employee for reporting an injury.  In over 15 years practicing workers' compensation law in Nevada, I have only seen two employers stupid enough to fire employees for the reason that the employees reporting an injury and filed a claim, and both of those employers paid additional money to those clients on the advice of their attorneys to avoid lawsuits against them.  Since 1984, the Nevada Supreme Court has held that an employee may sue his employer directly for wrongful discharge f the employer fires her for filing a workers compensation claim. 

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About Workers' Comp Adjusters

The adjuster employed by the third-party administrator (TPA)  is the person who controls most of what happens on your claim.  Many injured workers mistakenly  think that it is the employer that makes claims decisions.   While the employer may have considerable influence with the claims adjuster, the adjuster may also make decisions your employer does not like.  You therefore need to know the name of your adjuster, his or her phone number, and ideally, their email address.  The clinic where you initially obtained medical care should be able to tell you the name and phone number of the adjuster if you cannot get that information from your employer before you get a letter from the adjuster either accepting or denying your claim.

Try to communicate with your adjuster in a way that provides you with a record of the communication so that you can file an appeal if the adjuster fails to act on your request within 30 days.  Keep a copy of any letter that you send, and print any emails.  Make a note of the date and time of phone conversations. Be sure to have your claim number ready when calling the adjuster, and put the claim number of all written or electronic communications.

Make it easy for the claims adjuster to agree to whatever it is that you are requesting.  For example, if you are requesting a benefit check, make sure that you have provided the adjuster with a copy of the physician progress report that takes you off work, or that gives you work restrictions that your employer cannot accommodate. Or, if you are requesting a consultation with another physician, obtain the last report from your current physician, as the adjuster will want to review that before acting on your request to see a different doctor.

Be pleasant when speaking with the adjuster, and give the adjuster a reasonable period of time to act on your requests.  Ask the adjuster when you can expect an answer, and do not call repeatedly or daily.  Most adjusters are reasonable and try to do the right thing.  Most also have too many files to handle properly.  Think of ways you can make the adjuster's job a bit easier so that your requests are acted on quickly.