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

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

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

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

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

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

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

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

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

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

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Three people who met with me for a free consultation last week all told me that they thought the best time to hire a workers compensation lawyer to help them with their claim was right before they were scheduled for a permanent partial disability evaluation.   Two told me that they had had  free consultations with other attorneys in the past, and those attorneys were not interested in representing them while they were still actively  treating for their injuries.  Those other lawyers told them to come back when they  were finished getting treatment and were ready for  a settlement. The third person had relied on advice from a co-worker who thought that a lawyer was only necessary to obtain the best settlement.  Unfortunately, those three people were given  bad information  on when to hire a lawyer.  The best time to hire a lawyer, after meeting with one you like, is at the beginning of your claim.  Here's why:

1. Get More Legal Service for the Fee You Pay

Most attorneys charge a contingency fee from the permanent partial disability award at the end of the claim.  That fee  is  usually the same regardless of whether you hire the lawyer at the beginning of your claim, or right before you have the evaluation to determine your settlement.  If you hire a lawyer who actually provides a valuable service in assisting you on your claim each step of the way, you get more legal service for the attorney fee by hiring the attorney at the beginning of your claim.   If an attorney is only interested in representing you at the end of your claim, that is a red flag, and should alert you that the attorney is only wanting a quick fee for providing very little help. 

2. A Work Comp Attorney Should Guide You Each Step on Your Claim

If you hire a lawyer who is committed to helping you on your claim, and is not solely interested in getting his fee from the settlement, you have someone who is experienced in selecting the best doctors for your care.  You also have someone to make sure that your benefit checks are the correct and highest amount, and that they are paid on time.  An experienced work comp lawyer will also guide you through any employment issues while you are treating, and will get a jump start on the retraining process if it appears that the client will not be able to return to her old job. 

3. The Most Important Decisions Are Made at the Beginning of the Claim

The most important service I provide as a workers compensation lawyer is making sure that my clients get the best possible medical care as quickly as possible.  My clients are normal, honest, hard-working people who like their jobs.  They just want to get their injuries fixed and to get back to work and their regular lives. It  is at the beginning of the claim that injured workers decide whether they need a specialist, whether they want to change doctors, whether to have surgery, whether to have a second opinion, and what other treatment options are available.   The beginning of the claim is when insurers deny additional body parts on the claim and deny treatment or surgeries that your doctor requests.  Insurers will  try to usurp control over what happens to the injured worker's body at the beginning of the claim.

4. The Best Lawyers Practice Preventative Law

It is always easier to prevent a problem from happening on a claim than it is to try to fix a problem that has happened.  By the time most injured workers consult with a lawyer on their claim, they have spent many frustrating  months  trying to handle problems by themselves. Injured workers are at a terrible disadvantage when dealing with adjusters, because injured workers do not know what their rights are and whether the adjuster is acting properly on their claim.    A lot can go wrong very quickly, and the time to file an appeal on any determination made by the insurer is only 70 days.

5. What to Do If You Have Waited Until the End of Your Claim

If you have tried to go it alone on your claim, are fed up, and want to hire a lawyer now because you are concerned about the settlement process, get a free consultation with an attorney. You might be able to negotiate a lower attorney fee if you are just about to get a rating evaluation , and  you don't have ongoing problems or potential future problems with your claim. . Be sure to ask whether the attorney will be attending the rating with you.  Also ask whether the attorney will be helping you with any vocational rehabilitation issues, and whether the attorney will be available in the future to help you reopen your claim for more medical care.  Find out whether an actual attorney is handling your claim, particularly if you hire a celebrity attorney law firm.  You might also ask whether the attorney is able to predict  what your percentage of impairment should be.  Those attorneys who are honest and who care about their reputations among injured workers will give you a straight answer.  Finally, there is a ton of information about the rating process in my blogs and on my website.  

Get Well Again Soon!

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My office receives at least one phone call a week from an injured worker who is unhappy with how their attorney handled their contested case at a hearing.  Unfortunately, it is usually too late for me to help those callers.  A recent decision from the Nevada Supreme Court illustrates one reason why it is too late for me to help. 

Kathy Garcia, an employee of Scolari's Food & Drug in northern Nevada, filed an occupational disease claim, asking for medical care for pain in her arms and shoulder that she thought was aggravated by her work duties.  Her claim was denied.  Garcia's lawyer decided not to use medical reports at the appeals hearing that might have helped Garcia win her appeal, and Garcia lost her case.  Garcia then asked a  district court to send her case back for another appeals hearing so that she could use the medical reports while acting as her own attorney. 

The Nevada Supreme Court decided against Garcia, with a majority of the justices ruling that any negligence of Garcia's attorney in not putting the reports into evidence did not amount to a "good reason" to remand the case for another hearing.  Two dissenting justices disagreed and wrote that an injured worker should get their day in court with all relevant evidence if they can show that their attorney was negligent.  Garcia v. Scolari's Food & Drug, 125 Nev. Adv. Op. 6 (1/29/09).  The moral of this story is that an injured worker needs to be careful when  selecting an attorney.  

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1. You aren’t the type to hire a lawyer

Let’s say you are concerned that you might not be getting all benefits that are or could be owed to you under your claim. Most lawyers offer free consultations, and you can even have consultations with several different attorneys to compare information given by each. Whatever you say is confidential, even if you don’t hire the lawyer. If you then decide that you do need a lawyer to help you on your claim, look for a lawyer who doesn’t seem like the stereotypical attorney type. Can you see yourself in public with this person, having a cup of coffee? Is this someone you can talk freely to, and someone you feel you can trust? Does the attorney speak in simple terms that all people can understand? Trust your gut instincts. If the attorney seems like he or she is not the type to be an attorney, but seems more like a down-to-earth, genuine person, then that may be the attorney for you if you need one. .

2. You don’t want to sue your employer

Good, because you can’t sue your employer for a work injury under Nevada law unless you can prove that your employer intentionally injured you. A work comp attorney is instead assuring that you are given all benefits under the law. If not, the attorney may involve the insurer for your employer in contested appeals, but the employer is not sued.

3. You don’t want to get fired

An employer in Nevada is not likely to subject themself to a lawsuit by firing the injured worker just for hiring an attorney to represent them on the work comp claim. In fact, in over 15 years of representing injured workers, I’ve never seen it happen. Instead, the injured worker is less likely to get fired because he or she has an attorney advising them regarding employment situations during the time the claim is open, and the employer in turn is more careful in how it deals with the employee.

4. Your adjuster seems nice

Many adjusters are nice people, and many are underpaid and overworked with too many claims to handle properly. Your adjuster works for the third-party administrator (TPA) hired by the insurer for your employer. TPA’s get business by showing insurers that they save money processing claims. Your adjuster is simply not going to be advising you when you should be asking for more benefits or looking out for your best interests. It’s not their job.

5. You don’t think you need one

Maybe you don’t need one, but it wouldn’t hurt to take advantage of a free consultation to have an attorney look at the letters sent from the adjuster and advise you whether it appears that you are getting all benefits you are entitled to. At least obtain whatever free information is offered so that you can better inform yourself about the law and your rights.
 

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