Reopening Rights Expanded by Nevada Supreme Court

 The Nevada Supreme Court published a decision that is favorable for injured workers this month in Williams v. United Parcel Services, 129 Nev. Adv.Op. 41 (6/6/13).  Two years after his back injury claim was closed, Williams, a UPS employee, asked to reopen his claim for more medical care.  His reopening request was denied because he hadn't been given a PPD award , and he hadn't been off work long enough to get temporary total disability benefits.  (Injured workers aren't entitled to TTD benefits unless they are taken off work by the treating doctor for 5 days in a row, or  5 days in a 20-day period )

A section of the  reopening statute, NRS 616C.390(5) , states that an injured worker who is not off work as a result of the work injury,  or who is not awarded a permanent partial disability (PPD) award when his claim is closed, cannot reopen his claim more than a year after the claim is closed. The actual language of the reopening statute says only that the injured worker must be off work as a result of the injury.  However, this section of the law had always been interpreted by insurers, hearing officers and appeals officers to require that the injured worker show that he had had been off work long enough to receive benefits if the reopening request was made more than a year after claim closure.  

Justice Nancy Saitta wrote in this recent published decision that there was nothing ambiguous about how the reopening law was written by the legislature.  The plain meaning of the words "off work" meant that Williams only had to show that his doctor had taken him off work for the remainder of his shift due to his accident. 

 This decision will help more injured workers who seek to have their claims reopened more than a year after their claims are closed. 

 --Written by Virginia Hunt, Hunt Law Office

Warning: Get Your Reopening Request Right

Injured workers should be aware that if their insurer denies their request to reopen their claim, they may not request reopening again for at least a year.  For example, if you send a letter to the insurer asking to reopen your claim, but you do not attach any supporting medical reports, your request will be denied.  If you don't appeal that denial, then you must wait a year after the date of the insurer's denial to ask for reopening again. If you appeal the denial, but your lose your appeal,  you must wait a year after the final decision on your appeal before you may ask to reopen again.

You want to make sure that you first understand what your reopening rights are on your particular claim underNRS 616C.390.  Then, you want to make sure that you attach a medical report that is likely to get your claim reopened.  Finally, if your request is denied, you should pursue the appeals process to get your claim reopened if you don't want to have to wait a year to request reopening again. 

If you had a lawyer represent you previously on your claim, your lawyer should be willing to help you reopen your claim.  If you decide not to bother with your lawyer, then it may be very difficult for your lawyer to help you later if your request is denied because you didn't follow the proper reopening procedure.   Please read my blog posts about the reopening process before  you attempt to reopen.

 

 

Crazy Interpretation of the Law on Reopening

I have a client who recently reopened his workers' compensation claim with Employers Insurance of Nevada so that he could have a back surgery for his worsened spinal  injury.  I sent over the physician progress report from  his surgeon, taking him off work from the date of the surgical procedure until the day of the next follow up office visit with the doctor. Employers wrote back that his request for payment of  temporary total disability benefits was denied.  The reason was that my client had been laid off and was out of work at the time he requested reopening of his claim.

The adjuster for Employers told me that she was relying on NRS 616C.390 to support the denial.  That law says that if a claim is reopened, an injured worker is not entitled to TTD benefits if, before his claim was reopened, he ..."retired, or otherwise voluntarily removed himself from the work force for reasons unrelated to the in jury."  I asked the adjuster whether she was joking, or whether Employers actually considered the 14% of Nevada workers who are unemployed to be happily enjoying  their "voluntary retirement".  She replied that an appeals officer in the northern part of the state had interpreted the law to preclude laid off injured workers from receiving TTD benefits, and that Employers was going to  point to that decision and deny benefits until told not to do that.

I've filed an appeal on behalf of my client to get a decision from a hearings officer, and then probably an appeals officer, in Las Vegas.  The decisions from one appeals officers are not binding, or precedent, on other appeals officers.   For those of you who are currently laid off from work, do you consider yourself "voluntarily retired?"  Le me hear from you on this issue.

Reopening Revisited

So many of the phone calls and emails I receive are about how to reopen a closed claim that  I am providing useful links to the articles and blogs I've written about reopening.   Please read these articles, as they do take you step by step through the process to first determine whether you can reopen your claim, and then how to go about reopening your old claim.

 http://www.huntlawoffice.com/reopen-claim.php

http://www.nevadaworkerscompensationlaw.com/2010/06/articles/reopening-rights/what-to-do-after-your-claim-is-reopened/

http://www.nevadaworkerscompensationlaw.com/2009/12/articles/reopening-rights/reopening-a-nevada-work-comp-claim-5-questions/

It will be difficult for most of you wanting to reopen your claim to get a private attorney to help you,  particularly if you have already received the maximum amount payable for a permanent impairment.  That is because private attorneys get paid for helping injured workers by charging a percentage of the permanent impairment award.  If there is no possible additional award after the claim is reopened, the attorney will not be paid a fee for helping to get the claim reopened.   That is why you want to make sure that when you first hire an attorney to represent you, that the attorney will  agree to also help you reopen your claim if that is ever necessary in the future.   If your old attorney doesn't seem to remember you or want to help you, and a new attorney is not interested in helping you because he or she needs to be paid, there is the Nevada Attorney for Injured Workers.  The NAIW will assist you if your reopening request is denied, and you need representation at the appeals level.

 

What to Do After Your Claim Is Reopened

If you manage to jump through the hoops to finally get your claim reopened for more treatment, what's next?  (If you are still having trouble reopening your claim, please click here for help in reopening your claim.)

1. Send the insurer the bill for the doctor's exam and report that was used to reopen your claim.  As with all communications to the insurer, make sure that you keep a copy of the bill and the letter you send requesting reimbursement.

2. Request treatment with a doctor on the insurer's provider list.   If the doctor you used to reopen your claim is not on the insurer's provider list, then you will need to select one who is on the provider list to treat you.

3. Benefits are paid retroactively to the date the claim is reopened.  If you are unable to work, you must ask your doctor for an off- work slip in order to obtain compensation benefits.  The insurer will not pay you for any time you were unable to work before you requested reopening of your claim.

4. If you were receiving a PPD installment check, those installments will stop if you are entitled to receive TTD checks now that your claim is reopened.  The law does not allow you to receive a TTD check and PPD simultaneously.  If you received a lump sum PPD check, a small amount of money will be deducted from your current TTD check as an offset.

5. You may be entitled to another rating evaluation when you are done with treatment again.   If your treating doctor states that you have a ratable impairment when you conclude treatment after your claim has been reopened, you may be rated again.  If you have a percentage of impairment that is greater than what you have already received, you will be awarded the difference.

Reopening a Nevada Work Comp Claim- 5 Questions

I receive many phone calls and emails each week asking my help in reopening a closed claim. If you are shopping for an attorney, ask whether the attorney’s fee includes help in reopening your claim. If you need more medical treatment after your claim is closed and your attorney has been paid, you need to know whether you can count on that attorney to help you.  It is difficult to get a new attorney to help you reopen your claim if the new attorney has no way to get paid for helping you.  

 The following questions should help you better understand the reopening process.

1.    Are you sure that you have reopening rights on your claim?

Only injured workers who receive temporary total disability benefits or a permanent partial disability award before their claims are closed have lifetime reopening rights. If your injury costs the insurer less than $300 in medical expenses, and the insurer gives proper notice of claim closure rules, you may not reopen your claim. If you had medical expenses over $300, but you did not receive TTD benefits, or did not receive a PPD award, you may only reopen your claim within a year of its closure.  

2.    Have you gotten a medical report to attach to a reopening request letter?

You must either use your private medical insurance or pay cash  to get a written report from a doctor that states that your injury has worsened from the time your claim was closed.   The insurer will not reopen a claim without this medical report. Attach this report to a letter requesting reopening of your old claim, and reference your claim number.  After the claim is reopened, send the insurer the receipt for your expenses in getting this medical report. If you cannot afford to get a medical report, do not ask to reopen your claim until you can pay for a report to attach to your request. The insurer will not pay for you to get this report- no exceptions!

3.    Does the medical report identify an objective worsening of your injury?

The medical report must clearly state that your injury has worsened. If the report only says that the doctor wants another MRI because you are complaining of more pain, the insurer will not reopen your claim until after you pay for a MRI, and the MRI must show that your injury has worsened.  Your doctor should discuss in what way your injury has gotten worse.   Medical reports that only state that you have increased symptoms are not enough.  If the doctor is only prescribing more pain medication or a few more visits of physical therapy to make you feel better, then your reopening request will be denied.

4.    Does the medical report recommend additional treatment?

Again, If your doctor only states in his report that he wants more x-rays or a MRI before he knows what treatment you need, don’t ask for reopening until after you get more x-rays or a MRI so that your doctor can state what you need.   Give your doctor a copy of your rating evaluation that was used for your permanent partial disability award so that your doctor knows what treatment you have already tried in the past.   Your condition may have worsened, but if no additional treatment is recommended, the insurer will deny your reopening request.

5.    Are you asking for treatment to a body part that was accepted?

An insurer will not reopen a claim for treatment to a body part that was never accepted and treated before the claim was closed.  If you try to reopen your claim to get treatment for some other body part, it can be very difficult to convince the insurer or a hearings officer that you did not know that this other body part was injured in the original accident and  that it now requires medical attention months or years later.  If you aren’t sure what body parts were accepted, review the rating evaluation report that was used for your permanent partial disability award. It discusses what body parts were injured and treated.

 

It is important that you have all the information necessary to successfully reopen your claim before you send your reopening request to the insurer.   If the insurer denies your request because you did not have complete information, and you do not appeal, or you lose your appeal, you cannot request reopening again for another year. 

For more information about reopening a closed claim, see “How Do I Reopen My Claim?”