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

Buzzwhack.com 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.

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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.

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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.

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 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

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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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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.

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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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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.

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