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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 you about the Nevada claims' process, why not read the blog posts I've written on almost every topic affecting Nevada workers workers' compensation claims? If you want to research the law yourself, in addition to reading the statues (NRS 616 and 61), 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 they 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.
Nevadans have been convinced over the years that there are many workers who try to take advantage of the system, either by filing false claims or by prolonging their time off work, or by collecting undeserved permanent partial disability awards. What the public in Nevada rarely hears or reads about however, are the employers caught committing workers' compensation fraud, or the insurers who intentionally fail to pay legitimate claims. This type of fraud may be far more prevalent than fraud by employees.
In October, 2011, a national, non-profit group of mostly claimants' attorneys, the Workers Injury Law and Advocacy Group (WILG), published a paper entitled "Employer and Insurer Fraud: Boosting Bottom Line profits at the Expense of Workers and Society". The premise of the report is that workers' comp insurers and their administrators have successfully misinformed the public and elected lawmakers that employee fraud costs the insurance industry more money than employer or insurer fraud in uncollected taxes and uncollected premiums. WILG states that the insurance industry writes or funds most of the reports on workers' comp fraud, and therefore wants the public to believe that injured worker fraud is rampant. Insurers are able to charge higher premiums and advocate for legislative changes to reduce compensation benefits to injured workers if the public is convinced that injured workers are defrauding the system.
WILG states that the actual statistics show that both employer and insurer fraud are a far greater problem, involving much larger sums of money, than fraud by injured workers . The statistics on the number of employers who are caught misclassifying employees to pay a lower premium or to avoid paying a premium at all are usually based on employer audits conducted by state agencies that oversee each state's workers' compensation system. Less than 2% of Nevada employers were audited in Nevada in 2010 according the WILG report.
In an effort to obtain unbiased information on whether employer or employee fraud is the greater problem in Nevada, I contacted Jennifer Lopez, Public Information Officer, of the Nevada Attorney General's Office. I asked Ms. Lopez for figures on injured workers who were prosecuted for fraud, and statistics on employers who were prosecuted for under-reporting premiums or misclassifying employees. The Nevada Attorney General's Office is statutorily responsible for prosecuting both injured worker fraud and employer fraud under the Nevada Industrial Insurance Act.
Ms. Lopez explained that in order to prove injured worker fraud, it is more difficult for a prosecutor to prove beyond a reasonable doubt that the employee criminally intended to cheat the insurer or self-insured employer of undeserved benefits. For fiscal year 2011 (7/1/10 through 6/30/11), only 19 of the 93 cases that were investigated were prosecuted. In contrast, during fiscal year 2011, the Nevada Attorney General's Office opened 246 employer cases for investigation, and prosecuted 142 of those employers.
Ms. Lopez noted that employer cases are usually misdemeanor offenses that involve less than $250 pertaining to employee misclassification or under-reporting of payroll. She emphasized that it is easier to prove employer fraud using the national insurance database information. Ms. Lopez did not elaborate on how many employer cases involved misdemeanors versus felonies.
Given the different standards of proof applicable to prosecuting employee fraud versus employer fraud, I'm not reaching any conclusions as to which type of fraud is the greater problem in Nevada based only on statistics from the Nevada A. G.'s Office on the the number of each cases prosecuted.
As I was gathering this information from the Nevada AG's Office and looking at various reports from both insurance industry groups and injured worker advocacy groups, I read a recent Fox News 5 article about the Nevada AG's prosecution of a Maryland woman for workers' compensation fraud in Nevada. Nevada Attorney General Catherine Cortez Masto was quoted as saying, "Workers' compensation fraud is insidious. It quietly drives up the cost of coverage, a bill that nearly every employer in every sector will have to foot, " said Attorney General Masto. "My office will continue to aggressively prosecute these cases."
I don't think the statistics from Attorney General Masto's office support her comment that workers' compensation fraud in Nevada, at least by injured workers, is insidious. Over 58,000 claims were filed in fiscal year 2009 according to Nevada's DIR Research and Analysis Supervisor, and the U.S. Bureau of Labor's website shows that 42,300 Nevada claims were filed in fiscal year 2010. If less than 100 cases of possible fraud by employees are referred to the Nevada Attorney General's Office each year, and less than 20% of those cases are prosecuted, I don't know what information Ms. Masto was relying upon.
It makes for more interesting reading in the media to hear about someone getting caught red-handed on surveillance video faking an injury than it is to read about an employer not paying premiums on undocumented workers, or employers claiming that workers are independent contractors when they are really employees. I think it is unfortunate that we don't have a true picture of the extent to which employee or employer fraud costs all Nevadans. Exaggerating what information we do have doesn't help.
I’m resolved this year to be so positive that those around me can’t help but to take some to use in their own battles with adversity and negativity. My clients come to me because they have overwhelming problems in dealing with their work injury- either medically, vocationally, emotionally, financially, or all of these things at once. My job is to be a problem solver and a source of information and inspiration for injured workers so that they may move beyond their injuries into a better life. That’s a tall order for me, and some days I do a better job than others. In order to help my clients with negativity, both internal and external, I’m resolved to set a better example in my own life. Here’s how I hope to do it:
1. Write it down.
I’m setting my alarm ½ hour earlier each day to handwrite three pages of whatever comes into my mind. This is time to complain, establish a wish list, vent anger, and just write freely. It’s cathartic. I can unload some unnecessary baggage to make myself lighter for the coming day.
2. Thank someone for something every day.
I don’t get around to sending a written note to someone every day, but I really have no excuse not to do that, as I have a staff to help me. As an injured worker, you will need a lot of help from a lot of people while you heal physically and financially. A simple handwritten thank you note to someone who has extended a kindness or good service to you says so much about you as a person, and produces wonderful surprises.
3. Clarify what I want and what I don’t want.
This may sound obvious, but it isn’t. It is incredibly difficult, for example, for many injured workers to tell me what they would like to do for a living if they could choose anything at all. For me, taking a few minutes to get away from external noise and all the busy things going on around me, helps me focus on what my goals are. When I am able to identify exactly what I would like to happen, it is more apt to happen.
4. Take more responsibility for my happiness.
Some days it takes almost a constant mantra of, “ I can choose to feel differently about this”, in order to stave off the negativity others are heaping on my head. In order to make room for the good that is ready to happen, we need to clear ourselves of the resentments we hang onto and the false focus on the unfairness of life. This attitude adjustment needs a lot of work, but I can resolve to keep trying to improve upon it daily.
5. Volunteer more
On days when absolutely nothing is going right, perhaps I simply need to give more time, attention, or money to someone else. I often recommend volunteer work to those clients who are unemployed. And if you don’t have time, energy, money, or attention to give away, then just extend some small act of kindness to another.
6. Be more patient and forgiving with myself
Best Wishes for a Safe and Happier New Year Everyone! Virginia
Simply wishing injured workers "Happy Holidays" isn't enough when I know that for most of you the holidays bring added stress financially. I'm therefore running two Holiday Specials. The first five injured workers who post a helpful tip or some positive words of encouragement to injured workers on my office Facebook wall page will receive a $50 gift card. You don't have to be a client of mine to qualify. Simply show my staff some documentation that you are a Nevada injured worker when you stop by to pick up your gift card. Please call ahead to verify that you won.
Secondly, I am offering reduced attorney fees to any new clients who sign with me between now and December 31, 2010. I will reduce my fee by 10% of what I would ordinarily charge you. For example, if you are a union member, and I would ordinarily charge you 25% of the permanent partial disability award at the conclusion of your claim, I will reduce my fee to 22.5% of the PPD. Or, for example, if I would ordinarily charge a fee of 33.33% of the PPD, I will instead agree to a contingency fee of 30%. I try to quote an attorney fee that reflects the amount of work I may need to do now, as well as in the future. An initial consultation with me is free, and you are welcome to openly discuss an agreeable fee with me after I know what your claim entails. My staff cannot give fee quotes over the phone.
I will be staying in Las Vegas over the holidays, riding my horse, and enjoying some time with my two sons who will be home from college. My office manager of sixteen years, Vanessa, hasn't told me yet when the office is closed for Christmas and New Years' Day, so I'm not sure of holiday office hours as I write this. However, I do check my emails and often work from home even when the office is officially closed. You can write to me at Virginia@HuntLawOffice.com. My hope for you this holiday season is that good health is restored to you quickly.
I got behind in my blogging while I made a quick trip to North Carolina for a week of helping to care for my father. He is undergoing radiation for throat cancer for seven weeks, and needs help with transportation to the oncology center, help with nutrition and self care, and coordination of other doctor appointments. Fortunately, his prognosis is good, and I have many siblings with wonderful spouses who can also spend a week helping to provide necessary unskilled care. I mention this very personal experience, because I just read in elder law attorney James M. O'Reilly's newsletter that more than 75% of Baby Boomers are providing unpaid care to an elderly parent. Several of my clients have mentioned the difficulty they are having providing financial and similar care for their parents as they struggle with their work injuries and reduced income. This blog post is to let you know that I found the resource section of Attorney O'Reilly's website to be helpful as I educate myself about Medicare, VA benefits, and options for care when a family member or friend cannot help.
With unemployment in Nevada at an all-time high, construction workers who are injured on the job are afraid to report and file workers’ compensation claims. However, those who delay and then discover that they have a serious injury that may require surgery will regret that they did not follow the steps below. The risk of your employer taking adverse action against you for reporting an injury and getting immediate medical attention is far less than the risk of having a claim denied when it is filed late. Employers know that they can be sued for wrongful termination if they fire an employee because the employee pursued a workers’ compensation claim. 
When in doubt, do the following:
· Report your injury on time and in writing.
Follow the employer’s policies on reporting job injuries. Nevada law requires that injured workers report work injuries to their employers within 7 days. However, many employers have policies that require immediate notification to a supervisor. Even if your supervisor makes a snide comment, ignore the comment, and stick to the procedure for reporting injuries immediately in writing.
· Submit to any drug testing your employer requires.
Employers often require that you immediately report your injury so that you can be drug and alcohol tested. If you test positive, in addition to your employer terminating you, your claim will probably be denied. However, there is a rebuttable presumption that the accident was caused by your being under the influence. Contact an experienced Nevada workers’ compensation attorney, particular if you test positive for marijuana, and the denial may be reversed through litigation.
· File a workers’ compensation claim when you get medical care.
If you chose not report your injury and use your private health insurance, it is very difficult to later file a claim and get it accepted. Many workers do not want to anger their employers by reporting a job injury, and they hope that their injury is not serious. However, if the injury turns out to be serious, you will probably have your late claim denied. You will then lose valuable benefits available to injured workers under Nevada law unless your attorney can successfully reverse the claim denial.
· Appeal claim denials.
Insurers love to deny claims where the insurer can show that the injured worker treated for the same condition or injury in the past. However, with good legal representation, most of these claims involving pre-existing conditions can be won for the injured worker.
· Investigate for third party liability.
If the accident was caused by someone who is not your co-worker or your employer, you may have a personal injury claim in addition to a workers’ compensation claim, and be entitled to recover additional money. Only an experienced attorney will be able to tell you whether the exclusive remedy doctrine applies to your particular facts, and advise you whether you may also pursue a personal injury claim.
Occasionally, one of my clients asks me to sign a lien agreement with a company offering to advance money to the client based on the client's potential permanent partial disability award at the end of his claim. I have never agreed to sign one of these agreements. These advance settlement firms have been around a long time in the personal injury world, but are now beginning to show up with greater frequency in the workers' compensation arena. The Las Vegas Review Journal has an article today on the state's efforts to regulate these litigation finance companies, focusing in particular on the company ownd by TV reality star Rick Harrison of "Pawn Stars".
There are many reasons I refuse to get involved in any manner with these financial settlement loan companies. I understand that many people are desparate for money, particularly when their claim is denied, and there is no income and no medical care. However, from what little information a couple of these companies have been willing to share with me, these companies have no understanding of how workers' compensation claims are settled in Nevada. They do not even know that legally, the only liens that are allowed on workers' compensation claims are child support judgments. I recommend that my clients not sign agreements with these types of companies with regard to permanent partial disability award settlements.
On February 6, 2010, my officer manager and legal assistant extraordinaire, Vanessa Cohen, will be with me 15 years. Vanessa is the most organized person I have ever met, and she is responsible for making our office run like a well-oiled machine, even on days when every client seems to call at the same time and needs immediate action. If you are one of our clients with a claim in litigation, you know her as our litigation support specialist who tracks appeal deadlines, court dates, and assists in preparing evidence for hearings. She also tracks when settlement checks are due, and is the patient, competent voice ready to address clients' problems early in the morning before Bianca takes over solving problems for clients who phone us.
Vanessa and I exchanged small gifts today to honor our 15-year anniversary of working together, and she wrote in her card to me, "I still love my job!". Vanessa has a very difficult job helping me represent people at a very low point in their lives after serious, unexpected, and often life-changing accidents. Her compassion for our clients has never wavered, and her love for her job still shows in her devotion to excellence in her work. Thank you so much, Vanessa. Much love, Virginia.
Unless lawmakers in Washington act by February 28, 2010, the jobs bill passed in December that extended long-term unemployment insurance benefits and that gave a COBRA extension will expire. With the unemployment in Nevada at an all-time high, this is terrible news for workers who have been unemployed for a long time. Read more about the AFL-CIO's jobs plan to address this problem and for information on how to contact legislators to urge them to act on legislation now.
The Workers' Compensation Section of the Division of Industrial Relations has asked us to spread the word that they are offering a free training session for employees on injured workers' legal rights, how to file a claim, what to do if the employer is uninsured, claims process deadlines, etc. on Wednesday, October 14, 1:30- 3:30 pm at the West Charleston Campus of the College of Southern Nevada, Room D-101. To make a reservation to attend, or to request special accommodations, please email Terry Simi at tsimi@business.nv.gov.
Some questions I receive from injured workers have nothing to do with workers’ compensation law, but are instead about how to make it through the difficult times following a work accident. Few people can pay all necessary bills for very long on workers’ comp benefits of only two-thirds of their average monthly wage. Most injured workers must dip into or deplete their savings if they have a serious work injury. Also, if medical insurance isn’t available any longer because the injured worker can’t return to his pre-accident employer, dependent family members then go without necessary medical care. It is even worse for the injured workers who must litigate denial of their claims in order to obtain any benefits at all after months of the appeals process. Yet, people do survive these tough times, and they find a new appreciation for those friends, co-workers, employers, and family members that can be counted on to provide support.
Recently, a client gave me a very interesting book entitled The Survivors Club by Ben Sherwood. This book is about survivors of various sorts of tragedies, including an airplane crash in the Andes, a failed suicide attempt from the Golden Gate Bridge, the brutal gang attack of the Central Park jogger, cancer, a mountain lion attack, etc. There isn’t a chapter on how to physically, emotionally, and financially survive a serious work injury, but I could match some of my clients’ experiences with those in the book. The book discusses common personality traits the survivors share. I see many of those traits in those clients who go on to lead happy, productive lives despite their life-changing work accident. What I really found useful for my clients, however, was its website. This website has excellent information on how to deal with a permanent injury, how to handle financial problems following a reduction in income, links to alcohol or substance abuse help, and divorce survival tactics.
Depression following a work injury is common. If it becomes severe, the injured worker should discuss it with whichever doctor is the authorized treating physician so that it is documented. Then, the injured worker can request that the adjuster authorize a consultation and treatment with a psychologist. While Nevada law does not allow an award for permanent psychological injuries that do not result from a physical injury to the brain, an injured worker may at least get treatment for psychological problems that result from the work injury.
If you need immediate help in the Southern Nevada area to deal with depression, please contact the So. Nevada Adult Mental Health Services at (702) 486-6000. You may also find other phone numbers and links for mental health services at www.mhds.state.nv.us. If you or someone you know is having suicidal thoughts, please call the suicide prevention hotline numbers at 1-800-273-8244 and 1.877-885-467.
I’ve asked several clients to help me post some good news about their accomplishments in vocational rehabilitation programs, and tips to help fellow injured workers get through the tough times. So, please stay tuned.
Virginia L. Hunt is a Nevada attorney with over fifteen years’ experience in workers’ compensation law. She began in thisMore...
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