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 you about the Nevada claims' process, why not read the blog posts I've written on almost every topic affecting Nevada workers workers' compensation claims? If you want to research the law yourself, in addition to reading the statues (NRS 616 and 61), and the regulations (NAC 616-617), you must be familiar with Nevada Supreme Court decisions interpreting the law. You must also know about the actual practice of the hearings and appeals officers to have some idea of what they are likely to do in your case. Take advantage of a free consultation with a reputable attorney.
3. Accepting a PPD award when you want more medical treatment
Even if you don't elect to receive your permanent partial disability (PPD) award in a lump sum, and the insurer is paying your PPD award in installments, you must appeal claim closure if you want more medical treatment. First ask the adjuster whether he or she will allow you to return to the last treating doctor for more treatment. If not, then go to any rating exam the insurer schedules so that your benefits aren't suspended. Also, you must file an appeal. You will have to get a report from your private physician to show the hearings officer that you need treatment. Don't wait, thinking that you can easily reopen your claim later. It's hard to reopen claims.
4. Waiting to add other injured body parts
Remember that you can't reopen a claim to get treatment for an injured body part if it was never accepted before the claim was closed. If your claim acceptance letter only references some of your injuries, notify the adjuster in writing. Ask the adjuster to at least allow your doctor to examine your other injuries before the adjuster outright denies these injuries to other body parts. File an appeal on time (within 70 days) of any letter the adjuster sends denying injuries to other body parts. You may also need to go to your own doctor using your health insurance if other injured body parts are denied.
5. Not planning for your vocational future
Be realistic and honest with yourself and your doctor when discussing whether you are going to be able to return to your job at a later date. If you know or think you might not be able to return to your usual occupation, try to find out now whether your employer is likely to offer you a permanent modified job or not. If you or a family member is dependent on the health insurance your employer provides, then you must start being creative and persistent now in persuading your employer to keep you despite any permanent physical work restrictions. Your employer does not have to find you permanent light duty work. Alternatively, start thinking about retraining programs and start visiting schools that have 9 to 18-month vocational programs.
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.
