Nevada Insurers Often Wrong About Pre-existing Conditions

 Any injured worker over the age of 30 with a serious work injury is likely to find some reference in  his or her medical records to degeneration of the body part being examined.  Degenerative disc disease, for example, is actually a normal  part of the aging process.  But insurers and their third-party administrators start to drool when they see those words in x-ray and MRI reports, because it gets them thinking about how they might reduce medical expenses or subtract from  the PPD award on the claim.  

Some insurers are very aggressive about denying claims for the reason that the injured worker has a pre-existing condition.  Most physicians, not knowing what Nevada law says about pre-existing conditions, don't help the situation.  Many doctors on the insurers' exclusive provider lists simply shrug their shoulders when their requests to perform surgery are denied.  They tell the patient that they will have to use their private insurance or pay out of pocket to have a surgery for a work injury that aggravates a pre-existing condition.  If the patient was probably going to need surgery at some future time anyway, these doctors think that the insurer is justified in limiting the scope of the claim.  However, under Nevada statutory law and Nevada case law, many of those types of injuries should be treated under the workers' comp claim.

 NRS 616C.175 actually shifts the burden of proof to the insurer to show that the work accident that aggravates, accelerates, or precipitates a pre-existing condition is not a substantial contributing cause of the resulting condition.  In other words, if the employee was working without complaints and didn't need a surgical repair of the rotator cuff of his shoulder until he wrenched his arm while working, sending him to the clinic on  the day of the work accident, the fact that he has degeneration in the shoulder joint should not preclude him from getting medical care.  It has been the law since 1999 that the employer must prove that the work accident was not a substantial contributing cause of the present need for medical  treatment.  Yet, insurers are still handling claims as if it is the employee who must prove that a work accident that aggravates an underlying pre-existing condition is a substantial contributing cause of the need for medical treatment.

Things get even more complicated where there are prior industrial injuries and successive employers.  Then, the insurer and hearings and appeals officer, must sort out whether the injured worker has had a recurrence of his first injury or is an aggravation that amounts to a new injury.  A recurrence would require reopening of the first claim, while an aggravation would be the responsibility of the second employer.  Which employer and insurer is responsible affects the injured worker because his average monthly wage  might be different with each employer.  See Grover DIls Medical Center v. Mendito, 112 P.3d 1093 (Nev. 2005) for a discussion by the court of what is a recurrence and what is an aggravation. See also, Mikohn Gaming v. Espinosa, 137 P.3d 1150 (Nev. 2006).on recurrences and aggravations. 

This is an area of the law that has many pitfalls for injured workers. It is dependent on the individual facts of each case, and is  heavily dependent on how doctors discuss injuries in their medical reporting.  If the doctor is asked about causation, the question should properly reflect the language and intent of NRS 616C.175.    Be aware that once the claim is accepted, that you will again revisit your pre-existing non-industrial condition when it is time for your impairment evaluation.  The issue then will be whether the rating doctor can  apportion the award (subtract from it) for the pre-existing condition.  See my posts on apportionmnet.  


--Written by Virginia Hunt, Hunt Law Office

Dr. Pirruccello Explains How to Rate Spinal Injuries

Virginia :  The primary purpose of my blog posts is to inform Nevada's injured workers about the law and the claims process.  However, I occasionally like to offer my readers from the workers' compensation industry a more detailed analysis of a current issue that requires a working familiarity with Nevada workers compensation claims.   The following is a guest blog post by a well-respected Nevada rating doctor on a difficult  rating issue.  (Chiropractors on the DIR's list of rating doctors  are  qualified to rate any injury to the musculoskeletal system.)

Under the 5th edition of the AMA Guides to Permanent Impairment, when a rating doctor is evaluating a cervical, thoracic, or lumbar spine injury, such as a herniated disc, the doctor must correctly  choose one of two rating methods in the book.  Whether the rating doctor uses the  range of motion method , or uses a DRE category can significantly change the percentage of impairment.   Ultimately, the  amount of money the injured worker receives as his PPD award, will be affected.  I asked Paul Pirruccello, D.C,  currently on the DIR's panel to review Nevada ratings for errors,  to explain when the Guides require that the rating doctor use the Range of Motion method of rating spinal injuries:


 When Should the Range of Motion (ROM) Method Be Used for Spinal Impairment?

When an adequate number of PPD ratings have come across your desk, you will inevitably come across spinal ratings where the ROM Method has been used because the rating doctor thinks there is "multilevel involvement."  The major concern in these cases lies in the rater's understanding of the AMA Guides definition of multilevel involvement.  The proper utilization of the ROM Method is best defined in Section 15.2a #4 on page 380 of the AMA Guides, as follows:  a. Fractures at more than one level in a spinal region. b. Radiculopathy bilaterally or at multiple levels in the same spinal region. c. multilevel motion segment alteration (such as multilevel fusion) in the same spinal region. d. Recurrent disk herniation or stenosis with radiculopathy at the same or a different level in the same spinal region.

The key findings that must be associated with multilevel involvement, when using the ROM Method are: fractures, radiculopathy or alteration of motion segment integrity (fusion).  Without one of these key findings the ROM Method should not be used.  
I have oftentimes seen PPD reports where raters have used the ROM Method for multilevel degenerative disc disease, multilevel disc bulges, multilevel strain/sprain injuries or multilevel disc herniations without multilevel radiculopathy.  None of these qualify for use of the ROM Method.  Always think multilevel fractures, radiculopathy or fusion when you think of the ROM Method and multilevel involvement.  Without these qualifiers, the DRE Method is used.
by Paul Pirruccello, D.C. Sept. 2014
Dr. Pirruccello has been a practicing chiropractor in Reno for 33 years and continues to treat workers compensation patients.  He has performed PPDs since 1998 in Reno and Las Vegas, and PPD reviews since 2002.  He is currently in his second stint on DIR's PPD Review Panel.  He can be reached for questions at

 --Written by Virginia Hunt, Hunt Law Office

Temporary Partial Disability Benefits under Nevada Law

Temporary partial disability benefits  (TPD) are benefits that may be payable under the following circumstances:

1. You are working a temporary light duty job at a lesser wage because your duties are different, or you are making the same wage but your employer has reduced your hours each week;

2. You have a permanent job that is within your restrictions, but you are not making your compensation rate, but hope to within the next two years ;

3. You have concurrent employers at the time of your injury, and can only return to work for one of those employers while recuperating from your injuries,

In each of the above examples, in order to determine whether any TPD is owed, we must first know what your average monthly wage is on your claim and your compensation rate.  The average monthly wage is that calculation your adjuster sends you which determines how much you will be paid when when and if you are entitled to lost time compensation benefits.  For example, if your gross monthly wages were $3000, your average monthly wage would be $3000 a month, and your compensation rate (what you would actually receive in benefits when taken off work by your doctor.  That would be 66 2/3 of your average monthly wage, or $2000.

Your compensation rate is also expressed in terms of a daily rate,  which is then multiplied by the usual 14 day period the insurer pays bi-weekly benefits to those claimants off work due to their injury.  Each consecutive day within a pay period is counted, including Saturdays and 'Sunday. 

You can tell whether any TPD is owed to you by taking your current paycheck stub from your employer from your reduced hours temporary light duty job, and subtracting your net (how much you made after taxes, SSI, medicare   If that amount is less than your compensation rate for that same period of time, then workers' compensation will owe you the difference between your compensation rate and what you netted on your paycheck. 

Click here for any easy worksheet you may use to determine whether TPD is owed for a particular pay period.  If so, you need to send a copy of your paycheck to your adjuster and ask that TPD be paid for that time period.  You will have to look at each paycheck you receive to determine whether you are owed TPD that time period.   

If you have a permanent light duty job and aren't making your compensation rate, TPD benefits are payable for up to tow years.  After two years you should be making your compensation rate. 

Remember, you must actively seek these benefits by promptly sending in paycheck stubs and by asking for these benefits. 

--Written by Virginia Hunt, Hunt Law Office

Does Your Employer Need to Keep You When You Have Permanent Work Restrictions?

 Let's assume that you have an accepted workers' compensation claim in Nevada, and that your treating doctor has just released you with permanent work restrictions that would  ordinarily prevent you from being hired or going back to your regular duties at the job you had when you were injured.   The question is whether your employer must take you back and find you work that takes into account that you have these permanent work restrictions. 

Under Nevada workers' compensation law, the answer to that question is:  No your employer is not required to modify your old job or find you a new job where you don't have to do any work that would exceed your permanent work restrictions.  Instead, your employer can simply tell your adjuster that they don't have work within your permanent work  restrictions and that the employer will not be making a permanent light duty job offer.  When that happens, the adjuster schedules you to meet with a vocational rehabilitation counselor to discuss the two options that are available to you under Nevada workers' comp law:  a retraining program, or a sum of money called a vocational rehabilitation lump sum buy-out.  How long a retraining program, or how much money your can get as a buy-out, will depend mostly on what your percentage of impairment is after your rating evaluation.

But what if you really wanted to remain with the same employer and don't want to be retrained or don't want to just accept a buy-out and then have to find work on your own?   Is there anything you 

 can do to require that your employer help you find work you can do with the same company?  The answer to  that question will depend on whether you can use anti-discrimination laws to protect people with disabilities.  The legal analysis will mostly be whether your employer must comply with federal Americans with Disabilities Act Amendments Act of 2008.  

I don't practice discrimination law, and would refer anyone who thinks the the ADAAA is applicable to them to an attorney who helps disabled people with those issues, but here a few points to help you determine whether you might qualify for help under the ADAAA:

  • Your employer has more than 15 employees in Nevada; 
  • Your have a "disability" -  If you have a PPD award and permanent restrictions you likely fall within the ADAAA definition of "disability;
  • You think you can do the essential functions of your old job, but need a few modifications because you now have permanent work restrictions;
  • You have asked  your employer to put you back to work in your old job with a few accommodations, and your employer refuses to discuss it with you. 

Again, I'm not an expert on the ADAAA, but what I glean from the cases that interpret the ADAAA is that both the employee and the employer need to be reasonable  when discussing whether it is possible to keep the injured worker employed with this same employer.   

An injured worker cannot automatically assume that if the employer had temporary light duty work available, the employer should have permanent light duty work for the injured worker.   Temporary light duty work  programs are designed to keep an injured worker employed and going to work  while they recuperate from a work injury.  These temporary jobs are not intended to be permanent jobs.  

An excellent disability discrimination attorney in Nevada is J.P. Kemp at Kemp & Kemp.  His phone number is (702) 258-1183.  


--Written by Virginia Hunt, Hunt Law Office

Quiz on Nevada Work Comp PPD Awards


Test your knowledge of permanent partial disability awards on Nevada workers' compensation claims with the following quiz.  I will post the answers next week with explanations. Have fun!

 Quiz Time-  How Much Do You Know About PPD’s in Nevada?

1.   1.  True  or  False?

         Even if an injured worker has a surgery for a hernia caused by work activity, he is not entitled to a permanent partial disability award.

2.   2.  True  or  False?

 A  persistent low back strain does not entitle an injured worker to a permanent partial disability award if the MRI does not show a herniated disc greater than 3mm.

3. True   or  False?

If the injured worker failed to contest the insurer’s average monthly wage determination used to pay compensation benefits when the injured worker was off work following surgery, it is probably too late to argue that the average monthly wage should be calculated higher when the permanent partial disability award is offered.  

4.     4.  True  or False?

A cervical fusion done for a work injury will always result in a ratable impairment even if the injured worker has no pain and work restrictions following the successful surgery.

5. True  or False?

 Iinsurers and their third-party administrators may have contractual arrangements with particular rating doctors to pay them less than the usual, state-approved fee for a rating in exchange for the physician or chiropractor remaining on their provider list.

 6.   6.  True  or  False?

If the rating doctors appointed by DIR to review rating evaluations find an error in the rating, the third-party administrator will be required to notify the injured worker of the mistake and offer the corrected PPD award if it is higher.  


--Written by Virginia Hunt, Hunt Law Office

Hearing Loss in Nevada FIre Fighters

 A recent article published in the Journal of Occupational & Environmental Medicine that studied 425 fire fighters from three states showed that more than 40% of the fire fighters had hearing loss in the noise-sensitive frequencies (4 and 6 kHz).  Fire fighters with longer years in fire services demonstrated significantly worse hearing.  The conclusion was that noise-induced hearing loss was prevalent and that the use of hearing protection devices had to be increased.  

Fire fighters and police officers are required to have a base line audiogram  when hired, and tests for hearing loss are supposed to be a part of the required annual  heart/lung physical exam.  While the employer may be good about accepting a hearing loss claim and paying for hearing aids, many public employers do not routinely schedule the claimant for a rating exam to determine a permanent partial disability award.

The AMA Guides to Evaluation of Permanent Impairment, 5th edition, is used by an assigned rating doctor to find a whole person percentage of impairment.  That percentage is then used along with the injured worker's age, and wages at the time the occupational hearing loss claim is filed to come up with a dollar settlement amount.

Not all hearing loss will result in a ratable impairment or a settlement.  If you would like me to submit your most recent audiogram to a rating doctor for his calculation of your impairment, I can have this done for a reduced fee from the doctor and a greatly reduced attorney fee if it turns out that you are entitled to a settlement.  If the reviewing doctor tells me that you do have a ratable impairment, I  would then have to ask the adjuster to schedule and pay for a formal rating. If the reviewing doctor tells me you don't have a ratable impairment, you would not owe me an attorney fee, and would only be out the cost of the review by the doctor.    

--Written by Virginia Hunt, Hunt Law Office

Child Support Deduction from Nevada Work Comp Benefits

Workers' compensation benefits, including final settlement awards, called permanent partial disability awards, are generally not subject to assignments or garnishments, and are not subject to attorneys liens or medical provider liens.  See NRS 616C.205.   The one major exception to that general rule is that the statute does allow for payment of past due child support obligations under NRS 31A.150 and 31A.330.    If a claimant is subject to a court order for the a payment of past due amounts, the adjuster must without an amount equal to 25% of the amount to be paid.  An adjuster who is served with an out-of-state child supp port judgment will honor an order.  

Most attorneys ask at the time you retain the attorney whether you have any outstanding child support judgments against  you, because the contingency attorney fee charged by the attorney will be based on what the award should have been without the child support payment.  

--Written by Virginia Hunt, Hunt Law Office

Rating Physician Richard Kudrewicz Dies

The workers' compensation community lost one of the most authoritative and fairest rating  physicians on November 30, 2013.  Richard Kudrewicz, M.D. , or Dr. K, as most of us called him, performed about ten times as many permanent partial disability evaluations on Nevada injured workers as most of the rating physicians on the DIR's rotating list.   Because adjusters and attorneys can agree on who to use for a rating physician, he was often agreed upon by both claimants' attorneys and defense attorneys to do a second or third  rating in contested cases.  He was extremely knowledgeable about the  AMA Guides, was always respectful to injured workers, and whether you agreed with his conclusions or not, you knew that you were getting his honest opinion regardless of who the parties were that were  involved.   In addition to his integrity, he had a great sense of humor.  My condolences to his wonderful family.  This is a  terrible loss for injured workers, too. 

--Written by Virginia Hunt, Hunt Law Office

What's My Nevada Claim Worth?

     I looked at a very interesting award calculator devised by a Maryland attorney based on his review of thousands of work comp awards in Maryland. It asks the injured worker to put a number from 1 though 10 on the level of pain and interference with activities for their injury,r the average weekly wage, and how long the injured worker was off work.  It does not ask for the injured worker's age. Byron Warnken, the author the website with this calculator, tells me that it is very good at roughly predicting what a client will receive for an award. The link to his website and calculator is

     When I plugged in information for a fictional injured worker with a low back injury making $500 a week with a moderate level of pain and disability (number 5 on the calculator), the award came back at $18,500. I then ran the numbers with a 5% impairment, using Nevada law statutes and regulations on calculating permanent partial disability awards. The probable award was much less, in the $7500 to $11,500 range, depending on the injured worker's age. However, it is an interesting tool, and Attorney Warnken does caution injured workers that their actual projected award could be much greater or much less depending on a number of other factors .

     There are some injuries that are very easy for me to predict the PPD award, once I know the average monthly wage, the chronological age of the injured worker, and the probable percentage of impairment. However, the PPD award for most serious injuries cannot be predicted with a high degree of accuracy without the attorney knowing what objective diagnostic tests show, the operations performed on the injured body parts, what additional diagnostic tests were done, and what residual problems the injured worker is having.   I usually need a lot  more information than Attorney Warnken's calculator to predict a probable award.

      Once you give a client a dollar figure at an initial consultation, the client invariably feels disappointed with the attorney if the client hires the attorney based on an expectation of getting that dollar figure and if  the actual rating results in a lower award. I don't mind discussing the range of percentage for similar injuries and some of the factors the AMA Guides want the rating doctor to take into account when calculating the whole person percentage. I like my clients to be educated about the process and encourage questions. If I can give a realistic percentage of impairment that I would expect at the end of the case, I will give that information to an injured worker during a free consultation with me.  Likewise, if I think it will be misleading to the client and create unrealistic expectations for a large settlement, I won't attempt to give a dollar figure.  

--Written by Virginia Hunt, Hunt Law Office

Maximum Compensation FY 2014

For those with accidents occurring after July 1, 2013 through July 1, 2014, the maximum state average monthly wage is $5,290.70.   That figure comes from the Nevada Department of Employment, Training and Rehabilitation, Employment Security Division.   That figure is the maximum amount that can be used as an injured worker's average monthly wage if the injury occurs between that fiscal year. 

The benefits on that average monthly wage of $5,290.70 is 66 2/3, which comes out to be $814.58 per week (count each of the 7 days).  The amount that would be in a monthly benefit is $3,527.13.

If you make less than the state maximum, your average monthly wage will be based on your actual earnings for a period of either 12 weeks before your injury, or one year.  The adjuster must use the time period of earnings that will result in the highest average monthly wage for you.  

Even if you are not our of work and not entitled to lost time compensation benefits, if you think you will have a permanent, ratable impairment, you will want to make sure that your average monthly wage calculation is correct and as high as possible.  The average monthly wage is one of the three factors that determines how much money you will receive for an impairment when your case closes. (The other two factors are the percentage of impairment, and how old you are when you are rated for impairment.) 

You can have your average monthly wage corrected at any time before you accept the final permanent partial disability award in a lump sum.  If you think your average monthly wage on your claim is too low, be sure to schedule a free consultation to have an attorney review it for you.

Cost of Rating Exams Up Again: Get It Right the First Time

     Effective February 1, 2013, the Nevada fee schedule that governs health care providers under the Nevada workers' compensation system, raised the PPD (permanent partial disability) reimbursement to $718.96.    If the rating physician is rating more than two body parts, he or she can charge an additional $240.11 for each additional body part.  For example, the fee schedule states that the cervical spine constitutes one body part, the thoracic spine another body part, and the lumbar spine constitutes a separate body part for rating and billing purposes.  If an injured worker has injuries to the neck, the low back, and to the right wrist, the rating physician's bill will be $959.07.

     Injured workers who disagree with the first rating or the percentage offered by the industrial insurer must pay these same rates when they obtain a second rating by following the procedure in NRS 616C. 100.  With these high costs, it is essential that the injured worker gets a fair and accurate rating the first time around when the insurer must pay for it.  Although the law allows a hearings or an appeals officer to order an insurer to reimburse an injured worker for a second rating if the second rating is found to be more accurate, there are no guarantees that a second rating will result in a higher percentage, or that a hearing or appeals officer will agree that the higher percentage is correct. 

     It is difficult for Injured workers to find an extra $718.96 to pay for a second exam,  even if they are likely to be reimbursed.  Also, it takes time to file appeals and contest the first rating, and the injured worker cannot accept the disputed first percentage in a lump sum while litigating the first percentage.

     Here are a few things I may do representing an injured worker do to get the first rating correct:

  • Ask the adjuster to agree with me on which of the 145 doctors on the DIR's rating list will evaluate the client.
  • Make sure that the rating physician is rating all accepted body parts. 
  • I go with the client to the rating with a copy of the medical records, so that if the doctor is missing an important record, like an operative report, I have a copy ready.
  • I know the AMA Guides and am prepared to discuss complex issues such as apportionment of pre-existing conditions or how a particular body part should be rated.
  • I obtain a copy of the rating evaluation as soon as it is done so that I can resolve any problems by writing to the rating doctor before the adjuster sends a determination letter.
  • I may have the rating report reviewed by a rating doctor at a cost less than the full cost of an exam to confirm a suspected error and then ask the rating doctor for an addendum.
  • I prepare a persuasive argument for the hearing officer after filing an appeal that the first rating is wrong under the AMA Guides, and ask that the insurer be required to pay for a second rating.
  • Finally, if I think the first rating is incorrect and that the second rating phsycian who is assigned by the DIR is likely to find a higher percentage, I file an appeal and schedule a second exam.


--Written by Virginia Hunt, Hunt Law Office

Less Hours and Less Pay for Light Duty?

Some employers have a nasty way of reducing  injured employees hours who are recovering from a work accident with temporary light duty work restrictions.  You may be entitled to workers' compensation  called temporary partial disability benefits if your take home pay is drastically reduced.  Here's how to know whether you are entitled to these benefits, and how to get them:

1. Find the letter from the adjuster that tells you what your average monthly wage is and what your daily compensation rate is when you are taken off work competely by your treating doctor.  If you haven't received an average monthly wage determination letter, you will have to ask the adjuster to send you one so that you both know whether you are entitled to TPD while working reduced hours on light duty

2. Muliply the daily compensation rate by the number of days in your employer's pay period.  If your employer pays you bi-weekly, you will multiply the daily rate by 14 to get your biweekly compensation rate. If your employer pays you weekly, mulitply the daily rate by 7.

3. Get your paycheck stub and note what your net wages are (meaning those after taxes and deductions).  Do this for each paycheck while you are working light duty.

4. If your net wages are less than your compensation rate for the same time period, then you are entitled to the difference.  (Subtract your net wages from your compensation rate to get the difference.)

5. Send a copy of each paycheck stub that is less than your compensation rate to the adjuster with a request that the adjuster pay TPD.  Allow two weeks before you bug the adjuster about not getting a check. 

6. Make sure that it is your employer that is reducing your hours; not that you are asking for less hours or calling in sick. 

--Written by

Will Accepting a PPD Award Affect My Job?

Question by an injured worker:  Will accepting a permanent partial disability (PPD)  award affect my job?   

Answer:  It shouldn't.  Having permanent work restrictions may affect your job, but your accepting a PPD award shouldn't.   Here's why.

 PPD awards for injured workers with Nevada workers' compensation claims are based on a combination of three factors : the age of the injured worker, the wages the worker was earning at the time of his injury, and the percentage of impairment determined by a rating doctor.

The rating doctor must use a book published by the American Medical Association called The Guides to Evaluation of Permanent Impairment.     Current Nevada law requires that rating doctors use the Fifth edition even though the AMA has published new editions. You may purchase the Guides and other books and newsletters about the Guides at

The Guides tell the rating doctor how to examine the injured worker, how to measure lost motion in joints, and how to calculate a percentage for anatomical, physical impairment. The factors used   to calculate the  percentage of whole body impairment  are not related to what the injured worker does for a living.  The plumber with partial amputation of his thumb will get the same percentage of impairment as the clerical assistant with a similar amputation.  However, the amount of money offered for the PPD award also depend on the claimant's wage at the time of injury as well as the injured worker's age.  

The word "impairment" often confuses people. Some employers  do not understand at first that an injured worker can be entitled to a PPD award under the Guides even though they might also have a full duty work release from the treating doctor.   Instead of the PPD report, the employer should rely on the treating physician's last progress report with the permanent work restrictions or the full duty work release.  

--Written by

Am I Entitled to a PPD Award If I'm Released Full Duty?

 Injured workers, employers, and even doctors on workers' comp provider lists in Nevada remain confused about whether an injured worker who is able to return to work full duty is entitled to a permanent partial disability award.  Depending on the injury, an injured worker may be entitled to a rating evaluation and an award,  even though the worker has been released to return to his pre=accident job without any permanent work restrictions.

The criteria for determining whether an injured worker has a ratable impairment is in the AMA Guide to Evaluation of Permanent Impairment 5th edition.  That criteria focuses on anatomic alteration or dysfunction , as opposed to an inability to perform particular job requirements.  For example,an inability to move an injured shoulder in one or more  of the measurable planes of motion may result in a whole person percentage of impairment even if the injured worker  has a sedentary job that requires very little use of the shoulder.

Another example of how this works would be an attorney and a piano player who both have a serious injury at each of their jobs resulting in the amputation of one of their pinkie fingers.  Even though the attorney may be able to return to her job full duty, learning how to type with nine fingers, she would receive the same percentage of impairment as the piano player for an amputation of the pinkie finger.  The piano player, if  unable to return to work playing piano, would also be entitled to a retraining program or a vocational rehabilitation lump sum settlement  in addition to a permanent partial disability award. 

If your treating doctor checks off the box "no ratable impairment" on your final progress report, your adjuster will send you a letter stating that your claim will be close without an impairment evaluation.  If you think that determination is in error and that  you do have a ratable impairment, take advantage of a free consultation with an experienced attorney before you go through the appeals process and before you pay $693.31 to obtain a rating yourself.   If your doctor tells you that you won't get a rating because you can return to work full duty, you should check with an attorney whether the doctor is  correct or not .  Make sure that you file an appeal within 70days of the insurer's determination letter closing your claim without a rating.   

--Written by

Terrible New Decision for Injured Workers on PPD Ratings

Just before Thanksgiving, the Nevada Supreme Court published a turkey of a decision that robs injured workers of disability award money.  In Public Agency Compensation Trust v. Blake, 127 Nev. Adv. Op. 77 (2011), the court invalidated a long-standing  DIR regulation that addressed how rating doctors are to account for a prior PPD award for a re injured body part where the prior rating was done under a different edition of the AMA Guides to Evaluation of Permanent Impairment.  

Nevada law currently requires that rating doctors use the 5th edition of the AMA Guides, even though the AMA has published a 6th edition.  This law was championed by advocates and lawyers for injured workers, as the 5th edition generally results in a higher rating for many spinal injuries than other editions of the AMA Guides.

Blake had four work injuries to his back in the 1980's and  1990's, and was awarded a 14% permanent partial disability award  (PPD) at his last prior rating in 1995 under the 2nd edition of AMA Guides. (The law in 1995 required rating doctors to use the 2nd edition.)   Blake had a fifth back injury at work in 2004.  He was rated again in 2004 when the 5th edition of the AMA Guides was required in Nevada. The rating doctor properly followed the DIR regulation that told the rating doctor  to subtract the earlier awarded 14%.   The employer appealed, arguing that the regulation wasn't fair to employers, because the current 5th edition of the AMA Guides would rate the old injury at a greater percentage.  The justices agreed, and held that Blake's total impairment should be reduced by what  the old injury would rate under the 5th edition.

This decision is wrong in my opinion,  because Blake had his award reduced by a percentage of impairment he never actually received.  He was paid in the past based on 14% impairment.  (The payment amount is determined by using the percentage of impairment, the injured worker's average monthly wage, and the injured worker's age when he is rated.)   The court said that instead of subtracting 14% from Blake's current total impairment of 40%, it would allow the insurer to subtract subtract a 23% for the old back injuries by re-rating the old injuries under the 5th edition.  The net result to Blake was that he lost 9% impairment under this decision.  As the court's decision does not tell us Blake's age and how much money he was earning when he was injured, we can only guess how much money the 9% was in his case.  For some injured workers, a 9% loss could mean a loss of up to $45,000.   

The  court reasoned that the law provides that  the employer  should  only pay for any impairment  related to the current injury.  The court had to invalidate a regulation that had been on Nevada's books for years, and used by DIR and rating doctors when faced with multiple ratings done under different editions of the AMA Guides. Blake, unfortunately, will never be compensated more for his old injury by this re-rating of his old injuries under the  current edition of the AMA Guides.   Only the employer and insurer can use a current edition of the AMA Guides by reducing an injured worker's net impairment percentage following a recent injury.  

The ink wasn't dry on this decision when DIR wrote in its Winter newsletter that it will no longer enforce the invalidated regulation when it reviews all impairment evaluations.  DIR only reviews about 10% of the approximately 450 impairment evaluations that are done each month on a statewide basis. This is a confidential review, and claimants should not rely on DIR to correct any rating errors.   Instead,  injured employees must appeal the insurer's offer based on the incorrect rating and obtain a second PPD evaluation with a physician assigned from the rotating list.  As the appeals process takes time, and a second rating costs $683 currently,  first ask an experienced workers' compensation attorney whether the first rating looks wrong.  Insurers are often quick  to apportion (subtract from) an injured worker's PPD if there has been a prior injury or rating.   You can be sure that  employers and insurers will slash many more PPD awards now that the Nevada Supreme Court has provided encouragement by this unfavorable decision.

Holiday Horrors: Late and Missing Checks


  • Does the following sound familiar?  You've checked the mailbox for the third time in an hour.  You finally see the postal carrier  drive down your street,   but  he does not  leave a compensation check in your mailbox.  You wave him down and angrily interrogate him  about whether your check could be lost or stolen.  Your briefly contemplate committing a  federal offense by taking the postman hostage until you get your miserable, but necessary check.  Instead, you stomp back into your house and call your  adjuster for the sixth time.  The adjuster never picks up the phone when you call, so you  leave another pleading message to overnight you a temporary total disability check so that you can pay your bills on time and buy groceries.  

What the heck is up with late and missing checks during the holidays?  It seems that for every  federal holiday without mail delivery, compensation checks are delayed by at least  three days. 

Here's what to do:

1. Look at the stub that was attached to your last TTD check.  Find what time period was covered by the last comp check, and then look at the date the check was issued.  This will help you determine whether your check is truly late, or whether you were just hoping it would come earlier than usual. Also, make sure that you sent in the request for compensation form or the physician's progress report that takes you off work, entitling you to another compensation check.

2. If your check is more than two days late, leave a polite phone message, and only one message, with your adjuster.   You want your adjuster to want to help you, and leaving threatening messages only moves your claim to the bottom of the adjuster's stack of things to do.  Understand that the adjuster may have correctly done her job to have your check processed on time, but that it may not have been mailed on time from a location in another state.

3. If your check is more than three days late, and you get a response from the adjuster that your check was sent on time, you have to decide whether to wait another day or two, or request a stop payment on the old check.  Usually, the check will show up in another day or two.  If you request stop payment and receive the old check before you receive the re-issued check, you may not cash the first check.   Whether you request a stop payment depends on whether you trust the adjuster that the check was in fact mailed on time.

4. Call your creditors to let them know that your compensation check is late, and that your payment will therefore be late.  Even if the creditor is not sympathetic, it is still better to let creditors know of your situation. 

5. Before the next federal holiday, you might send your adjuster a friendly reminder to please process your check a day or two early so that it does not arrive late.

6. If your adjuster is habitually late in sending your checks, keep the envelopes and copies of your check stubs, and attach them to a complaint letter to DIR.


Mileage Reimbursement Rates and Maximum Average Monthly Wage for Nevada Workers' Comp Claims

 There's good news and bad news.  The good news is that effective July 1, 2011, the mileage reimbursement rate for using your car to go to and from doctors and physical therapists visits increased from 51 cents per mile to 55.5 cents per mile.  Injured workers must have traveled more than 20 miles one way for medical care, or alternatively, have traveled a total of 40 miles or more during a week time period to qualify for reimbursement. (NAC 616C.150.) Use a mileage reimbursement form to send to your adjuster (or forward it to my office if you are already a client and we will take care of it for you). Don't wait until the end of your claim to turn in these forms. They must be sent in within 60 days of your qualifying trips.

The bad news for injured workers is that the state's maximum average monthly wage for injuries occuring after July 1, 2011 has been decreased slightly again for the second year in a row.   This is the figure that is used to calculate lost time compensation benefits and the permanent partial disabilit award.  The most an injured worker can collect for being disabled each month on new claims is $3,434.38. That means that if an injured worker is making high wages at the time of her accident after July 1, 2011,  she will get far less than 2/3 of her average monthly wage if she is off work and entitled to temporary total disability benefits.  Her final award for a permanent impairment will be less also. 

Tip  If you aren't receiving maximum compensation benefits, but think you should be, take advantage of a free consultation with an attorney to review the average monthly wage calculation on your claim.  You must do this before you accept a PPD award.