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.

 MAKING RAIN AT BIG FAT CONFERENCES

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.

GO AHEAD, JUST SEND THE CARD

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.

WHY DO I REPRESENT THEE? LET ME COUNT THE WAYS

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.

THE LEGAL BEAT

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.

BRINGING VALUE TO THE TABLE

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.

PLAYING NICE IN THE SANDBOX

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.

Free Legal Consultation- What to Expect

This is what I do for injured workers who would like a free legal consultation:

First, I,  or one of my experienced legal assistants, asks the injured workers a few pertinent questions to make sure that they have a Nevada claim, that they have already filed a claim, that they do not already have an attorney representing them, and that I can help answer their questions when they come in.  I don't have time to see everyone who calls me, and with some people, I know right away that I will not be able to assist them. 

Secondly, if I schedule a free consultation, I ask the injured or sick injured worker to bring whatever paperwork they have pertaining to the claim.   The more information I have when someone comes in to see me, the more accurate my recommendations are for their particular claim.

Consultations are scheduled for 45 minutes, but if the case is complex, we may take up to an hour to discuss the claim.   I encourage injured workers to bring their spouse or significant other so that I answer everyone's questions.

I listen to the injured worker tell me about how the accident happened, or how the occupational illness developed, and I read the paperwork available for my review.  I then give an overview of Nevada law and the various benefits available.  I talk about the roles of the insurance adjuster, and the employer,  and the treating physician.  I usually spend a lot of time discussing the medical care the injured worker is receiving as time limitations are very short for requesting change of doctors.

I identify potential problems the injured workers may not be aware of, and tell the injured worker what to expect, and what the options are if the claim doesn't proceed as expected.   Sometimes the injured worker hasn't faced the prospect of not returning to their pre-accident occupation, and we spend time talking about retraining possibilities.  I also explain how permanent partial disability awards are determined.  I answer questions about what I do as an attorney for the injured worker, and whether legal representation is even necessary.  I explain that I assist clients in obtaining the best possible medical care, that I make sure that benefits are maximized and calculated correctly, and that the client is aware of all benefits that are available.  I personally go to clients' rating evaluations, and I represent my clients should they ever need to reopen their claim for more medical care in the future.  I also stay involved in the vocational retraining process, and I do not charge an attorney fee on a vocational rehabilitation lump sum buy-out unless that sum of money is part of a settlement of litigated issues.  

All consultations are confidential regardless of whether the person ever hires me or not.  No one is pressured to sign a representation agreement with me, as the consultation is truly free.  If the person decides that they do need or want representation immediately, and I consent to be their attorney, we can have all necessary paperwork to hire me completed in about five minutes.   I personally explain the representation agreement to every client.  I propose fees based on what work I think I will have to do on the claim presently and in the future. 

I do not mind if a person is shopping for an attorney and wants to have consultations with other attorneys before deciding to hire me.  Who to hire for legal representation is an important decision.  It is very difficult to change attorneys later, because attorneys generally do not get paid until the end of the claim.   There are differences in what attorneys charge in Las Vegas, and there are differences in what attorneys personally do for clients. 

Finally, I give all people who see me for a consultation, and any others who request it, a copy of the guide I wrote for injured workers on Nevada workers' compensation law.

It's NOT About the Money

A local personal injury attorney has a TV ad in which he says that a personal injury claim is all about the money.  While that may be true for that attorney's clients, my clients want more than money.  Here is what on most injured workers' minds who visit my website, read my blog posts, or meet with me for a free consultation:  

  •  Poor medical care.  Most injured workers hire attorneys  because they are unhappy with the medical care from doctors their employers and adjusters assign to them..  Insurers do not want injured workers knowing  about their rights to change doctors.   Experienced workers' compensation attorneys know which doctors on the provider lists are competent and care more about their patients than  the insurance companies who pay them.  
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  • Not getting compensation benefits on time.  There is no excuse for an adjuster's failure to pay temporary total disability checks on time.  Nor is there any excuse to repeatedly send checks to the wrong address,  Yet,  many adjusters aren't careful to process checks correctly or on time unless  an attorney is breathing down their neck, ready to file appeals or complaints.
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  • Worry about the future.   When a terrible accident occurs unexpectedly, claimants  must guess whether co-workers, their  employers, and  adjusters are giving them good information about the claims process. It's difficult to know who to trust.  Many well-intentioned people do not deliberately give bad advice. They simply do not correctly understand Nevada law. It's foolish not to get answers from an experienced  workers' compensation attorney when those answers are free and when your health and economic security are at stake.   
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  • Unfair decisions by the adjuster .Again, most injured workers don't know  much about Nevada workers' compensation law.  Some know when something doesn't seem right or fair on their claim, but it isn't always obvious when the adjuster isn't following the law.   The time limit to appeal an adverse determination by the adjuster is a short 70 days.  An injured worker can lose valuable rights by not getting immediate help. 
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  • Wanting to educate themselves.   Injured workers know that  they are at a disadvantage because they don't know the law.  The smart ones take advantage of a free consultation with a lawyer to get correct information .   

If the only service you want on your comp  claim is for an attorney to get you money, then you are probably shortchanging yourself.  It's really not just  about the money.

--Written by

Free Consultation: New Evening and Saturday Hours

Most injured workers are able to keep working while they get medical care for their work injury.  That makes it difficult for some to find time during usual business hours to see an attorney for a free initial consultation regarding their workers' compensation claim.  I am therefore experimenting with keeping the office open one night a week into the evening and one Saturday afternoon each month as a way to allow more injured workers access to information.  It is very important when you have a serious injury that could result in permanent impairment  that you get reliable information about your Riggs and the claims process as soon as possible.  Appeal times on the decisions made by adjusters on claims on very short- only 70 days, and you could lose thousands of dollars in benefits now and in the future by not knowing your rights.   If you cannot get away for an initial consultation during normal business hours, be sure to mention that to my legal assistant and we will make every effort to accommodate you.  In the meantime, call us at 699-5336  for a free guide written for injured workers by Virginia Hunt, Esq.

--Written by

Attorney Profile Update for Virginia Hunt

 

Attorney Virginia  Hunt was recently invited to join the experienced workers' compensation attorneys from the various states that comprise the Larson's National Workers' Compensation Advisory  Board for LexisNexis, the world's largest legal publisher.  She contributes regularly on Nevada law with her award-winning blog to the LexisNexis national blog on workers' compensation issues.
 
Ms. Hunt was also appointed to serve as a mentor for newly admitted Nevada attorneys as a part of the mandatory Transitioning into Practice program recently established by the State Bar of Nevada under the direction of the Nevada Supreme Court. She is no longer a Committee Member of the State Bar's Continuing Legal Education program, but recently authored and hosted a seminar for the State Bar's  continuing legal education program.  The seminar addressed  permanent partial disability awards and more difficult rating issues.

 

Be Careful What You Read

The problem with the Internet articles I see on many sites that look like they provide good information for injured workers is that the content is not specific to Nevada workers' compensation law.  Each state has its own laws that determine work comp benefits. If information is not specific to Nevada law, then injured workers in Nevada will be misinformed.  Injured workers may think that they are getting state-specific information just because they click on a particular state.  However, despite the professional appearance of these websites, they rarely provide timely information on Nevada laws and claims practices.  

When you are surfing the web,  check whether the article or blog post is authored by a Nevada lawyer.  Many companies that market search engine optimization for law firms sell  canned articles that lawyers can post as their own on their websites, blogs, or twitter accounts.  The ethics of an attorney doing this is questioned by Kevin O'Keefe, founder of the Lexblog company that provides a publishing platform for my law blog.  Lexblog  has never tried to sell me blog posts written by their company marketing agents. What Internet marketing agent  is going to know more about Nevada workers' compensation law than I do?  Be careful that what you are reading on the Internet is from a reputable Nevada attorney .

Free Gift Cards and Reduced Attorney Fees

It's that time of year when I'm feeling festive.  I am again offering five $50 gift cards to the first five people who post a positive message or helpful tip for other injured workers on myFacebook wall page.  You don't have to be a client to qualify.  Simply show my staff some documentation that you are a Nevada injured worker when you pick up your gift card from my office.  Please call ahead to verify that you have won.  If you aren't among the first five to write a post, but I think your post is particularly encouraging or helpful to other injured workers, you might get a gift card, too.

Secondly, I am again offering reduced attorney fees for any new clients who sign with me between now and the new year.  I will reduce my fee by 10% of what I would ordinarily charge on your particular case.  For example, if you are a union member and hire me now, I will reduce my already reduced 25% contingency fee to 22.5% of any permanent partial disability award.   As always, an initial consultation with me is free, and I will give you (as well as anyone else who would like one), my guide to Nevada workers compensation law for injured workers.

I will be staying in town over the holidays, riding my horse, writing blog posts, working on client files, and meeting new clients.  I am also looking forward to spending time with my two boys who will be home from SDSU and Brown.  I will check emails frequently even though we will have days when the office is officially closed.  Happy Holidays.   Virginia, Vanessa, Norma and Sue.

Work-Related Car Accidents: Do You Need a Personal Injury Lawyer, A Workers Comp Lawyer, or Both?

Work-Related Car Accidents: Do You Need A Personal Injury Lawyer or  A Work Comp Attorney?

Many people have jobs that require that they drive while working, and that means they are at risk for job-related car accidents.   If the accident and injury is caused by the fault of someone who is not your employer or not a co-worker, then in addition to a workers' compensation claim, you may also have a third-party liability claim.  (The term "third-party" refers to someone who is not a co-employee or not your employer.  Remember that you may not sue your employer or a co-worker for any job-related accident and injury to you.)

If you are injured in a car accident while you are working, you need to follow the ordinary steps for establishing a workers' compensation claim.  You must notify your employer in writing of your accident and injuries, and most importantly, you must go where your employer directs you to go for initial care and to  complete the Claim for Compensation C-4 form.  It is the C-4 form that starts the workers' compensation claim process.   You will want to do this even though the person who hit your vehicle was at fault for the accident so that you have immediate medical and compensation benefits available to you under a workers' compensation claim.

A liability claim involving the insurance company of the person who hit you may take months or years to be resolved.  Liability insurers do not pay on a claim until you are done treating and  you know the full extent of your injuries so that you can  demand for a total settlement.  Additionally, you may not have accurate information about the amount of liability insurance available to pay you, the workers' comp insurer,  and any other people who were injured in the accident.

Many attorneys who take only personal injury cases are unfamiliar with the workers' compensation system in Nevada.  Personal injury cases are tried before experienced arbitrators, district court judges, or juries in Nevada, depending on how serious the injuries are and how much money is involved.  Disputed workers' compensation cases are decided by appointed hearings officers and appeals officers employed by the Department of Administration in min-sized courtrooms on S. Rancho Blvd.

Ideally, any attorney you hire to represent you on your personal injury claim against the person who is at fault for the accident should also  be knowledgeable about Nevada workers' compensation law.  Too many injured workers  unnecessarily pay for medical bills from the settlement monies they receive from the third party insurance company when these bills could have been paid by the workers' compensation insurer.  Be sure to ask your personal injury attorney whether you should be going to a doctor who on your workers' compensation provider list so that the medical bills are not deducted from your personal injury  settlement.

The other big advantage to having a workers' compensation claim established instead of  just a personal injury claim, is to get paid compensation benefits to support you and your family if you are unable to work.  If you don't also  have a work comp claim, then you will have to borrow money for your living expenses until you settle or go to court on your personal injury lawsuit.

It is true that if you have a work comp claim also, the work comp carrier is legally entitled to share any  money you receive from the liability insurer .  This is called a subrogation lien.  However, even though the work comp insurer will have a lien, it is still usually better for the injured worker to have both a workers' comp claim and a personal injury claim.  If you like a particular personal injury attorney, but he or she tells you that they will not be handling the workers'  compensation portion of your claim, ask for a recommendation of a lawyer who is experienced in workers' comp law.  Get reliable information quickly on the workers' comp aspect of your claim, as time limits run quickly . It is not unusual for injured workers to have different kinds of attorneys representing injured workers who have work-related car accidents.

 

 

 

Las Vegans Headed Back to Work? Let's Hope So!

The recent edition of "In Business"  magazine reports that the world's largest solar eneregy project located near Primm is providing 480 laborer  psotions on site, and that 10 to 15% of the workers come from Clark County.    In addition to union labor, who must come from'San Berardino County first,,there will also be  about 220 executive  and other positions.  At  its peak, the  project will employ about 1,400 construction workers such as carpenters, desertt biologists, engineers, and others. 

That same magazine discussed current  projections that over the next five years, McCarran International Airport will be among the nations' fastest -growing airports. Components to attract growth include stratgies to attract international travel from and to Canada, Mexico, and Latin America.

45% of of those respnding to a poll done the last week in August 2011 statted that they expdected thier business to make a profit this year.  11% weren't sure, and 43% didn't know whether they would be profitable in 2011. 

 

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Lawsuit Loans on Nevada Workers' Comp Claims

The January 16, 2011 on line edition of the NY Times reports on the unregulated business of loaning money to plaintiffs in personal injury lawsuits, often with devastating financial consequences for the injured borrower who ends up paying  astronomical interest rates.  Unlike injured workers with accepted workers compensation claims, plaintiffs with personal injury claims must wait until their claims settle or  until the defendant is defeated in court before the plaintiff receives any compensation for lost wages or reimbursement for medical expenses.

Personal injury plaintiffs who are out of work due to an accident become desperate for money during the months and years it takes to obtain money on their claim or lawsuit.  They  turn to lawsuit lenders  when they are unable to borrow from friends and family.   These lawsuit lenders  ordinarily do not advertise their  prices, and they are largely unregulated by most states.

I am frequently asked by my clients, injured workers with work-related injuries or occupational diseases, whether I will sign my name as their attorney to an agreement between a lawsuit lender and the client.  I will not do that for several reasons.  First, those lenders I have spoken to have little or no understanding of when or how an injured worker may receive a lump sum settlement under Nevada law.  Secondly,Nevada law prohibits liens on  workers' compensation settlements.  The notable exception to that law is a judgment for a child support obligation.   Additionally, it is the responsibility of the client alone to repay any loans he or she obtains. My job is to provide the best possible representation on the workers' compensation claim; not to become involved in loaning the client money.

 

Is Filing a Claim the Same As Suing My Employer?

Q:   If I file a workers' compensation claim, does that mean that I am suing my employer? 

A:  No.  When you go to a doctor for your work injury, the doctor should give you a C-4 (Claim for Compensation form) when you tell the doctor that you were hurt at work.  Your completion of the upper part of the form, and the doctor's completion of the lower part of that form is absolutely necessary to start the claims process.  The doctor's office is responsible for sending the C-4 form to the third party administrator for your employer's industrial insurer.   Your employer expects you to follow your employer's rules for reporting injuries,  and your employer is required by law to tell you where you should go for medical care where you file the C-4 claim. Filing a claim is not  suing your employer.  In fact, you cannot legally sue your employer for injuries that arise out of the course and scope of your employment.  You are limited to the benefits the Nevada legislature makes available to injured workers under the Nevada Industrial Insurance Act.  Your exclusive remedy for obtaining compensation for your injury from your employer is strictly through Nevada workers' compensation laws.  That is true even if you can show that your injury was caused by your employer's negligence or your employer's failure to follow safety regulations.

Q:  Am I suing my employer if I hire an attorney to represent me?

A:  No, an experienced workers compensation attorney will instead obtain all available benefits for you under the Nevada Industrial Insurance Act, or the Nevada Occupational Disease Act.  Most decisions regarding medical treatment and compensation on your claim are made by the adjuster assigned to your claim.  If your attorney disagrees with something the adjuster does or does not do, your attorney will file an appeal  with the hearings division of the Department of Administration.  Most disputes that involve appeals on workers compensation claims are between  the injured worker and the third party administrator for your employer's insurer.  Sometimes the employer takes a position on a particular issue and is involved in a hearing, but you are still not suing your employer by filing appeals.  Most injured workers like their employers and hope to return to the same job after they recover from their injuries. An experienced  workers' comp lawyer will not want to do anything that disrupts your good relationship with your employer.

Worth Paying Attorneys' Fees? You Judge.

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

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

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

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

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

True or False: The longer a Nevada workers' comp claimant is out of work, the greater the settlement award?

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

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

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

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

The Worst Time to Hire a Workers' Compensation Attorney

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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Injured Workers Are Stuck with Their Attorneys' Negligence

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.  

5 Reasons Not to Hire a Work Comp Lawyer

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.