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 doctor@pirruccello.us.
 

 --Written by Virginia Hunt, Hunt Law Office

What's An Apportionment of Your PPD Award?

Forgive me for not explaining the word apportionment sooner in my past blog posts about permanent partial disability awards on Nevada workers' compensation claims.   It's a bad word, and it means subtraction from the percentage of impairment.  It the rating doctor writes in his report that he found you have a 10% whole body impairment, but is apportioning the award by 50%, that means you will be offered a 5% whole body award, or half of the amount of money you would have been offered.

If your adjuster on your claim  has been talking or writing about preexisting medical conditions or has mentioned the  degeneration noted in x-rays or your MRI reports, you should be prepared for the adjuster wanting the rating doctor to apportion your impairment.. A good rating physician will always throw in a sentence or two that they considered apportionment even if they don't do any subtracting in coming up with the final percentage.  An adjuster who wants your award sliced in half or a good chunk deducted from it, may even write to the rating doctor after she gets his report and ask him to reconsider apportioning the award. 

Many rating doctors are falling victim to adjusters who are getting very aggressive about reducing injured workers' awards.  It is no secret among workers' compensation attorneys that many adjusters have a short list of their favorite rating doctors; ones that they will agree to do the rating rather than have one assigned by the DIR's rotating list.  In order to stay in the adjuster's good graces and on this short list, some rating doctors will apportion awards when they should not be making subtractions.

Nevada law requires a rating doctor to subtract any prior percentages you receive for a prior award involving the same injured body part.  For example, let's say you hurt your shoulder at work two years ago, had shoulder surgery, and were awarded  a 6% PPD based on your inability to move the shoulder completely.  Then, you hurt the same shoulder at work again, and you have surgery, and then get rated again.  If your shoulder has even less movement after this second accident and surgery, your impairment percentage should be higher.  If the rating doctor finds that you now have a 10% whole body impairment, he will be required to then subtract the 6% you received two years ago.  The result would be  a 4% whole person impairment on the second claim.  That is an example of a proper apportionment.

Now,let's assume that instead of having a surgery on the first shoulder  injury two years ago, the injury wasn't that bad.  You had six physical therapy visits, and were then released to return to work full duty.  The treating doctor back then did not say you had a likely ratable impairment, so your claim was closed without a rating evaluation.  However, after your second work accident, that does require a surgery, the rating doctor finds a 10% whole person impairment based on your inability to move your shoulder well.  If the rating doctor tries to subtract from the percentage of impairment because you had a prior shoulder injury, the apportionment probably is wrong.  While the rating doctor may apportion an award even if you never received a prior PPD award, there must be a documented basis for an apportionment.  In other words, ther rating doctor cannot just guess that some of your motion loss in your shoulder is probably due to the first injury.  There must be some medical record to support that you had a loss of range of motion before the second accident.

Most people who receive an apportioned award are upset that they are not offered the full percentage of impairment found by the rating doctor.  Just seeing the amount of money that you would have gotten cut in half prompts most people to ask a lawyer if that is correct. Most experienced workers' compensation attorneys will review your PPD report for free and  tell you whether it appears that the  apportionment is correct, or whether you should file an appeal and get legal help.

--Written by Virginia Hunt, Hunt Law Office

Can I Hire a Lawyer after I Get My PPD Offer on My Nevada Claim?

 

Can I Hire a Lawyer After I Get My PPD Rating?

 

Yes, you may.  Just make sure that you are getting experienced guidance and good value for paying an attorney fee at this late stage of the claim, and be aware that attorneys’ fees will differ from one attorney to the next on such cases. 

I often get phone calls from clients wanting to know whether the percentage offered by the insurer is fair after the rating exam, and whether the amount offered is correct.  I will review those rating evaluations free of charge to an injured worker in Nevada who faxes me a copy of the insurer’s offer with the rating report attached.  Just give me your contact phone number or email so that I may contact you after I review what you send me.   You may also tell me on the fax cover what you think may be wrong with the PPD.   If you don’t have any idea, but are just asking me to make sure, that’s fine, too.

Even without having your complete claims file and medical records, I can often spot obvious errors by the rating doctor, like those involving apportionment.  I can also tell you whether or not you should have me obtain your medical records to explore the rating in greater depth. Again, I don’t charge for this service, and the only cost involved will be the 60 cents per page that medical providers charge me for obtaining your medical records.  Be sure to contact me before the 70-day appeal time runs to contest the percentage in the PPD offer.

Deciding whether to contest a rating is a multi-step process that I can usually do rather quickly.  I may want to get the name of a second rating doctor from the Division of Industrial Relation’s rotating list before advising you whether I think it is worth your spending $718 to get a second rating.  Or, I may tell you that I think we can spend just $283 to have a rating doctor review the rating without another exam.  Or, I may think that the original rating doctor may revise his rating after I send a letter advising him of an error I’ve found.  The client remains in control each step, and is usually free to accept the amount offered by the insurer without risk of losing what was offered initially. 

If I think there is a good chance of my improving the percentage offered, I typically suggest an attorney fee that is a contingency percentage of the difference between what was offered by the insurer and what we ultimately obtain.   For example, if the injured worker is offered a 7% PPD, and I am able to increase that to a 10%, my fee would be a percentage of the difference between the 7% and 10%.  In other words, the fee would be a percentage of the extra 3% only.  If I am not successful in increasing the 7% PPD, no fee would be owed.   Whether we proceed with trying to obtain something greater than the 7% would of course involve my careful analysis of any risk of losing the original 7% offered.

What the contingency fee I charge on these types of cases varies depending on what work I think will be involved on my part.  Do you also  have issues pertaining to vocational rehabilitation that will need my help?  Are you likely to want to reopen your case for more medical care in the future, and need my help with that? Or, do we anticipate that your case will only be about the PPD award?   I think you will find that I charge fair and reasonable fees.  My business depends on satisfied clients who find my services to be valuable and worth the attorneys’ fees I charge for helping you. 

--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

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

More Money: Don't Miss These Benefits

 A few of the benefits that Nevada injured workers overlook include the following:

1. Prescription coverage

 Make sure that your pharmacy has your claim number, and the phone and fax number for your adjuster.  If the adjuster sends you a pharmacy card, be sure to use it.  If your pharmacy tells you they are waiting for authorization and you can't wait, pay for the medicine and send your adjuster the receipt. Don't confuse the issue by using your private insurance.     

2.  Mileage Reimbursement 

If you travel more than 40 miles a week, or 20 miles one way, to your doctors' appointments, and to therapy, right now the mileage reimbursement rate is fifty-five cents (55 cents) a mile.  A common mistake is to wait more than 60 days to turn in the request for reimbursement form.  Turn in the forms each month after making a copy for yourself.  

3.  Concurrent Wages           

 If you were working for two employers on the date you were injured, you need to make your adjuster aware of that by sending in paycheck stubs for that second employer.  Send paycheck stubs for three months before the date of your accident.

4.  Wrong Average Monthly Wage

When you receive the adjuster's letter advising you what your daily benefits will be, look carefully at the amount the adjuster says is your average monthly wage.  Ask for the wage verification form your employer gave the adjuster to check it against your old paycheck stubs.  There are various ways to calculate average monthly wage. If yours seems too low, get a free consultation with a knowledgeable lawyer.

5.  Low permanent impairment award

Unless you are familiar with the AMA Guides to Evaluation of Permanent Impairment, fifth edition, there is no way you will know whether the percentage found by the rating doctor is correct or not.  There is no excuse for accepting a low PPD award without first getting reliable information about whether the percentage and the way the lump  sum is calculated is correct.  Many workers' compensation attorneys will review your PPD award election papers for free.  

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BANG! Work-Related Hearing Loss

Permanent, work-related hearing loss can result when an employee is exposed to an unexpected loud noise, like an explosion at a manufacturing plant.  However, many cases of occupationally-related hearing loss are caused by excessive noise exposure over months, or years  in a work environment that is too loud.   Difficulty hearing or understanding spoken words happens to most of us as we age, so it isn't always easy to identify a progressive hearing loss problem as work-related. It is even more difficult finding good information about what to do if you suspect that your worsening hearing problem is caused by your job.  

Most employers whose employees are routinely  exposed to loud noises at work require a base line hearing test when the employee is  hired, and then an annual hearing test.  Police officers and fire fighters, for example, are required by law to undergo an annual hearing test, called an audio gram,  when the annual heart and lung medical exams are done. Police officers may wear protective hearing gear when re-certifying their weapons permits, but hearing protection obviously isn't  handy during a shoot out, or during a chase with sirens  wailing, or when on traffic patrol. 

Large employers  with loud equipment or very noisy work environments  must hire  occupational hygienists to  measure noise levels to ensure compliance with national health and safety standards and to satisfy their insurers' loss control programs.   A  contested hearing loss claim might involve experts who  disagree about what the noise  exposure really is  for an  employee  who is claiming hearing loss.    Most denied hearing loss claims however, are denied because the insurer says that the employee knew about his hearing loss  for weeks, months, or years  before he or she filed a compensation claim.  Those denials by the insurer are often upheld simply because the employee was confused about when to file a claim and what information to put on the claim form.

The same  C-4 Claim for Compensation form used for work injuries caused by accidents  is used for occupational illnesses, including occupational hearing loss.  The box on the form that asks when the accident happened isn't relevant to an occupational hearing loss that happens gradually over time.  Nonetheless, clinics  insist that the employee fill in a date on that box.  Sometimes the office personnel at the medical clinic will direct the employee to write in the date that the employee first noticed a hearing problem.   

Nevada law requires that employees report occupational illnesses within  7 days.  However, an employee rarely tells his employer about a hearing problem when the employee first notices that he or she is hard of hearing, unless the hearing loss results from a loud explosive-like noise.  Usually, the employee has  co-workers or family complain about having to repeat themselves before the employee takes the problem seriously. Ordinarily, there is a decrease in hearing ability long before most people are motivated to get their hearing tested.

 In order to avoid a denial of this important claim, however, the employee should complete a written Notice of Occupational Disease with the employer, and ask the employer where to go to complete a Claim for Compensation form  as soon as the employee suspects an occupational hearing loss.  The decision to wear amplification can always be made later, once the claim is accepted.

Hearing aids are expensive.  Hearing loss claims often require a reopening every couple of years to replace batteries or outdated equipment, particularly if the hearing loss is progressive.   Additionally, the employee may be entitled to a permanent partial disability award for the occupational  hearing loss.  Don't overlook your right to benefits under the Nevada Occupational Disease Act for a hearing loss that is caused by occupational noise exposure.

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DIR Complaints Are Insufficient Remedy

 In 1995, the Nevada legislature passed a law, NRS 616D.030,  that injured workers could no longer sue workers' compensation insurers or the third-party administrators who handle comp claims .Injured workers had been filing  lawsuits for money damages against  insurer's or TPA's for their  "bad faith" or negligence in denying or delaying medical care and compensation benefits, The large employers and their insurers were successful in convincing state legislators to  do away with  these lawsuits entirely.  The lawmakers replaced the injured workers' right to sue with a law that  only allows injured workers to file complaints with the DIR.

The Division of Industrial Relations is the state agency responsible for ensuring insurers, self-insured employers, and TPA's compliance with the laws and regulations governing work accidents and occupational diseases.   If an injured worker thinks that the adjuster handling her claim is not following the law in handling her claim, she may file a written complaint with the DIR.  The complaint does not have to be on any particular form, but this form can be used.

DIR is supposed to investigate any complaints for violations of the law.  If DIR finds a violation, it may then hit the insurer or TPA with an administrative fine and a benefit penalty to punish the insurer or TPA.  Administrative fines can range from $3,000 to $15,000 depending on whether this is a first, second or subsequent violation.    In addition, the DIR may also order the insurer or TPA to pay a sum of money, called a benefit penalty  (up to $50,000),  to an injured worker.  The benefit penalty amount depends on how much harm was caused to the injury worker by the adjuster's violation of the compensation laws. 

Attorneys who represent injured workers generally believe that this system of fines and penalties does not adequately compensate injured workers who are harmed by an adjuster's failure to handle claims according to the law.  Attorneys would prefer to bring a lawsuit against the insurer or TPA to recover money damages awarded by a jury.  Attorneys argue that the administrative fines and benefit penalties don't sufficiently deter insurers and TPA's from trying to shirk their duties under the law to pay legitimate claims on time and to provide appropriate medical care. 

DIR's Research and Analyst Supervisor kindly provided me statistical information regarding DIR Complaints.  She said that DIR receives about 1,400 complaints every year, including all written complaints, phone calls, and emails from injured workers.  Many informal complaints are quickly resolved with a single phone call by a DIR investigator.  

As I have filed many formal, written DIR complaints on behalf of my clients over the years, I was curious as to how many formal complaints were filed every year, and in how many cases were violations found.  I was told that DIR cannot determine from its current computer program how many formal complaints last year resulted in violations.  DIR could only tell me that in calendar year 2011, there were 31 benefit penalties issued . That tells me that injured workers are awarded money through the DIR complaint process for harm caused by insurers or TPA's in only  2% of the cases  involving alleged  DIR complaints of some sort.  

Unfortunately, the Nevada legislature said that filing a DIR complaint is the injured worker's exclusive remedy for harm by adjusters handling cases.  Is it a sufficient remedy if an injured worker goes without necessary medical care and suffers additional injury?   Is it a sufficient remedy if an injured worker loses her home because the adjuster can't manage to send compensation checks on time, and  to the right address, over and over again? I don't think so.  I think that a lawsuit is more apt to get the attention of the industrial insurer.  

While filing a  DIR complaint is not likely to result in an administrative fine or benefit penalty, it still helps to file a complaint.  Adjusters dislike having to respond to an investigator's request for information. Additionally,insurers and TPA's can have their licenses suspended or revoked if DIR finds repeated violations. 

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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.  
  •  
  • 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.
  •  
  • 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.

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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  www.amabookstore.com.

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.  

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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.   

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Should I Agree to the Insurer's Rating Doctor?

If your treating physician on your accepted workers' compensation claim in Nevada reports to your claims adjuster that you may have a ratable impairment, you should be scheduled for an impairment evaluation  30 days later.  This evaluation, also called a rating,  will be done by one of the 138 doctors and chiropractors who have been tested and authorized by the state agency, DIR, to perform ratings.  The purpose of the rating evaluation is to  determine your percentage of impairment so that a  permanent partial disability award can be offered.  (The additional two factors that determine a PPD award in Nevada are the injured worker's average monthly wage at the time of the injury, and the injured worker's age when he or she has the evaluation.)

As of  March 1, 2012, the Medical Unit at DIR has138 physicians  and chiropractors on a rotating list.  When a claims adjuster requests a rating,  the Medical Unit secretary must  assign the next one from the rotating list.  If the injury is to a muskuloskeletal part, such as the shoulder or neck, a chiropractor may be assigned to do the rating. Some of the chiropractors on the rotating list are excellent rating doctors-   fair, knowledgeable about the Guides and anatomy, and they correctly explain their findings and conclusions.

Nevada law allows adjusters to suggest and agree with injured workers on a particular rating doctor.  If the injured worker, or his attorney,  agree to a doctor suggested by the adjuster, the agreed-upon doctor can do it instead of the doctor assigned by DIR.  Some adjusters will send unrepresented injured workers a list with the names of about six doctors and ask whether the injured worker will send back an agreement to one.  If the agreement isn't returned, the adjuster must use a DIR-assigned doctor from the rotating list.  You don't lose your right to obtain a second rating if you disagree with the rating physician you agreed to rate you.

An injured worker asks me:  Should an injured worker agree to a rating doctor suggested by the insurer, or insist that the insurer schedule him with one of the 138 doctors on the rotating list? 

The answer depends on whether the injured worker has an experienced attorney.  Otherwise, it is likely that the injured worker will not be  knowledgeable about each of the doctors on the insurer's short list . If the injured worker, or his attorney,  doesn't  know anything about the doctors , he should NOT agree. The insurer will likely suggest doctors that find lower or average impairment percentages, or that are aggressive on apportionment and like to subtract percentage points for pre-existing conditions.   Despite the objective of the AMA Guides to Evaluation of Permanent Impairment to have rating methods that will easily duplicate results , there can be a  significant difference depending on which doctor is doing the exam.

If the injured worker has a lawyer , he should hope that his attorney is familiar with how each of the different rating doctors are likely to apply the Guides.  Sometimes attorneys for injured workers agree to a rating exam with a doctor suggested by the insurer.  Not all doctors suggested by insurers are necessarily a bad choice to rate a particular client.  The key is knowing how a particular rating doctor is likely to interpret the Guides.  That comes with experience.

There are injured workers, not knowing whether a suggested rating doctor is likely to be better than one assigned from the rotating list, will circle a name anyway and return the agreement    People who do that hope that the adjuster will act in the injured worker's best interests. The reality is that insurer's and their employees must act so that they can show a cost savings on claims to employers concerned with premiums.  Injured workers should understand that adjusters may be acting within the bounds of the law, but not be acting within the injured worker's best interests.  Therefore, my answer to the question is a resounding "NO".  Do not make agreements with insurers without knowing the consequences of what you are doing.

Expensive to Obtain a Second Rating

 Each year the WCS Medical Unit of the Division of Industrial Relations (DIR) updates the Medical Fee Schedule that determines the fees for medical services, including impairment evaluations.  Effective February 1, 2012, the current 138 authorized rating doctors may charge $693.31 for up to two body parts.  $231.54  is chargeable for each  additional body part.  For example, an injured worker with an injury to his neck, his low back, and to his left shoulder has  three injured body parts. A rating exam of all three injured body parts would cost $924.85.

An injured worker has the right to obtain a second rating if he disagrees with the percentage determined by the initial rating doctor.  However ,the cost of a second rating must be paid up front by the injured worker.  Whether it makes sense economically to pay for a second rating, or whether a less costly rating review based only on the medical records  is a better tactical move is a decision for experienced legal counsel.  Sometimes it is possible to convince a hearing officer to order the insurer to pay for a second rating exam without having a second rating evaluation.   An injured worker, or her attorney, must be very knowledgeable about how percentages are determined under the AMA Guides before paying for a second rating.  This office will review a rating report for free to help injured workers determine whether to accept the PPD offered, or to contest the percentage.

5 Huge Mistakes Injured Workers Make

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 yourself about the Nevada claims process, why not read the blog posts I've written on almost every topic concerning Nevada  workers' compensation claims?  If you want to research the law yourself, in addition to reading the statutes (NRS 616 and 617), 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 appeals officers, the district court judges, and Nevada Supreme Court justices 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. 

 

            

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.

Knee and Shoulder Injuries at Work

 Work-related traumatic injuries to knees and shoulders are common. These are two of the most complex joints in the body.  If an injured worker is not getting better with physical therapy, reduced activity, and drugs to reduce inflammation, the initial treating physician may then order a MRI to better diagnose injury to the ligaments, tendons, and cartilage. The clinic physician  may also refer the patient to an orthopedic physician.  An injured worker may ask for a specific orthopedic physician on the insurer's provider list. 

Nevada workers in occupations that require extensive kneeling, heavy lifting, squatting and climbing are at risk of  meniscal tears to the knees.  (The menisci are pads of cartilage that act as cushions between the femur and tibia bones, and they help distribute body weight and minimize friction within the knee joint.)  Most meniscal repairs can be done at an out-patient surgical center with an instrument called an arthroscope that creates only small scars.   Recovery time is usually quick, and  if a partial meniscectomy is done, a 1% whole person permanent partial disability award is given.  If you have had a knee surgery on your accepted workers compensation claim and the insurer tries to close your claim without a rating evaluation, you should consult with an attorney right away.

 

Painful and disabling shoulder injuries more typically result from direct trauma at work rather than overuse.  Tendinitis, impingement and rotator cuff tears are usually treated conservatively first with physical therapy and medication.  Again, the injured worker does have a right to request a transfer of care to an orthopedic doctor of his choice, so long as that doctor is on the insurer's provider list.   If you are uncomfortable with a particular surgeon and surgery is necessary, ask for a second opinion and transfer of care.   Most shoulder injuries that require surgical treatment result in some permanent loss of range of motion in the joint, and that will be the basis for an impairment award at the end of the claim.  If the shoulder surgery includes removal of a significant part of the distal clavicle bone, then the permanent partial disability award should also include an award for that procedure.  Many attorneys will review a permanent partial disability award on a shoulder claim for free to determine whether the award includes everything it should.