Common Issues In Workers' Compensation Claims
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This page explains common issues in workers' compensation benefits claims, and the elements of proof for each. It does not cover every issue that may arise.
There are other issues that you should
If there is a decision against you by an insurer, an employer, or a Managed Care Organization (MCO) file an appeal. File an appeal yourself from any determination that you don't agree with as soon as you receive it. Each appeal you file is dealt with as a separate claim and goes to a hearing on the merits.
If you receive a decision against you from an MCO, you have the right to appeal directly to the Appeals Office and to request free legal services from NAIW. You can bypass the Hearing Officer level.
Claim Denial: This is when the workers' compensation insurer, a self-insured employer, or an MCO writes you a letter saying that your initial request for acceptance of you workers' compensation claim is denied. It can also refer to a situation where you asked for acceptance of a claim and the claim was accepted in part.
You have 70 days to appeal the denial of your claim letter to the Hearings Division. If the appeal is not received by the Hearing Division within the 70 days you may lose your right to appeal.
There are two (2) documents you must send to the Hearings Division:
1) A copy of the denial letter itself.
2) The Hearing Request Form, fill it out, date it and sign it.
You can get the form to request a hearing by clicking here -> Hearing Request Form.
Put the letter and the completed form together and either mail or hand deliver them to the Hearings Division. Make a copy for yourself.
Temporary Total Disability (TTD): This benefit is based on a medical provider certifying that your injury or disease has temporarally prevented you from returning to your pre-injury job duties. TTD benefits compensate the injured worker for lost wages due to work injury.
How to Qualify:
To be eligible for Temporary Total Disability benefits;
- Your authorized medical provider must write that you could not work for five (5) days after your injury or for five (5) days within a period of 20 consecutive days, (NRS 616C.400) and;
- Your employer has not offered you "light-duty" work. A light-duty position is a job modified to fit the temporary restrictions set by your physician or chiropractor, which pays net wages at your TTD rate. (NAC 616 C.589)
TTD Compensation is paid at 66 and 2/3 percent of your average monthly wage
Compensation is based upon your wage history in the 12 weeks before your injury. If the 12 weeks before your injury does not provide an accurate representation of your earnings you can ask that the calculation be made using your earnings for the 12 months prior to the injury.
If you work more than one job, ask that all income be added together to calculate your average monthly wage.
If you elected to declare tips for income tax and workers’ compensation, your tips should be added into your average monthly wage base.
If your average monthly wage is calculated incorrectly appeal it. You may ask for a recalculation.
Wages Lost Because of Medical Treatment:
If you have qualified for TTD, and then return to work, it is often the case that you will need to go to medical visits during the day and miss some work. If you have to travel more than 50 miles to get to treatment you can get compensation for the work time you missed.
Temporary Total Disability will not be paid to you or your dependents during time you are incarcerated, or if you were terminated by your employer for your gross misconduct.
Permanent Partial Disability (PPD): This benefit is based on a determination by a rating physician that because of your industrial injury or disease, you have a ratable permanent impairment after you have concluded treatment for that injury or disease.
The procedures for rating Permanent Partial Disability are the same whether it is a new claim or a reopening. Ratings must be done by a doctor on the Nevada rating panel rotating list set by the Division of Industrial Relations (DIR). A medical provider must write that you are in "stable and ratable" condition. This means that despite treatment, you are at maximum medical improvement and the injury or disease is medically stable. PPD Ratings are usually described as a percentage of the "whole man". For example, a rating provider might write that an injured workers is 12% or 20% impaired. This is based on the idea that a whole person is rated at 100%.
(NRS 616C.490) (NAC 616C.103)
Note: The rating should take into account all your physical impairments and all the body parts that were hurt because of your work injury. PPD is paid for physical impairment due to work injury or disease, or psychological impairment caused by specified conditions.
Get a Second Opinion:
If you disagree with the impairment evaluation, you may ask the DIR for another rater. DIR will then give the name of the next rater on the rotating list. The injured worker must pay for the second comparison rating but may be entitled to reimbursement.
Lump Sum Benefit Amount:
The insurer may offer you a lump sum award for your permanent disability. The percentage of disability rating, your average monthly wage, your age, and whether you recieved Temporary Total Disabiility payments, are used in calculating your award. If one element is incorrect then your award amount could be incorrect. A lump sum payment will always be less that an award paid to you in installments over time. Consider this fact when deciding whether to accept a lump sum award for PPD.
One at a Time:
You cannot be paid more than one benefit for the same claim, in the time period, whether Temporary Total Disability, Permanent Partial Disability, Temporary Partial Disability, Permanent Total Disability, or Rehabilitation Maintenance.
PPD and Claim Closure:
If the insurer plans to close your claim they must first send you notice. Included with that notice, the insurer must either provide you with a date for a PPD evaluation, or explain why it finds you have no possibility of permanent impairment. You may dispute claim closure.
- If you wish to appeal the percentage of physical impairment, or which body parts or conditions are covered, or any other pending issue on your claim, Do NOT Take a lump sum settlement, because that ends litigation of most issues.
Claim Reopening: This issue comes up after a claim has been closed. If a work injury or industrial disease condition changes, the worker may request that the workers' compensation insurer reopen the claim for further medical treatment and benefits.
If your job-related medical condition changed after your claim was closed and you need treatment, or vocational rehabilitation, you must:
1) Provide your doctor’s written statement of your need,
2) Ask your claims representative in writing to reopen your claim. Make sure your doctor’s letter gets to the adjustor. Keep copies of any documents you provide to the adjustor.
The Doctor's Letter:
Your Doctor must write a letter which states:
1) Your condition has changed since claim closure.
2) You need treatment.
3) A description of the treatment.
4) That there is a direct relationship between your worsened condition at the time you ask for reopening and your original injury.
5) Your work injury is the primary cause for your need to reopen your claim.
6) Any specified time period you are not to work at your job (the one you were injured doing or the one you were retrained to do).
Effect of Retirement:
If you retired or voluntarily left the workforce for reasons unrelated to your injury before you file for reopening, you are entitled only to medical benefits; not lost wages.
One Year Wait:
When your claim is closed or your reopening request is denied, you cannot make another request to reopen until one (1) year has passed, absent unusual circumstances.
Request Within One Year:
If you originally had no lost time and no Permanent Partial Disability, you must request reopening
within 1 year of the date your claim was closed.
If your claim was closed because your medical treatment cost less than $300 in the first 12 months, you probably cannot reopen.
Reopening for PPD:
You may be able to reopen for Permanent Partial Disability if you were entitled to it and your case was closed without the insurer granting you PPD benefits.
Vocational Rehabilitation: This benefit is based on a recognition that you will not be able to return to your pre-injury job. Benefits may be available to help you train for a new kind of job.
You may be entitled to Vocational Rehabilitation (Job Training) benefits if:
- A doctor says you have physical restrictions that prevent you from returning to your pre-injury job or the job you were retrained to do;
- Your employer at the time you were injured has not offered you a permanent “light-duty” job you can do with your restrictions;
- You are unable to return to work at 80 percent of the wage you were receiving at the time of your injury.
- You cannot find a job on your own in your area within your physical restrictions. (Your marketable skills will be considered.)
Effect of Permanent Impairment:
The length and type of program you may qualify for depends upon the percentage of your permanent impairment (see the section on Permanent Partial Disability) and your abilities and interests.
You may be eligible for a second program if your first program did not retrain you to a job you can perform within your restrictions.
50 Mile Rule:
Services may be available to eligible workers who live outside Nevada within 50 miles of the border, or who live in-state but need benefits out-of-state within 50 miles of the border. You may get services in a state bordering Nevada if you show that such services are more cost-effective than in-state.
Vocational Rehabilitation Buyout
Contact NAIW for information if you are offered a buyout, before you agree to one.
You cannot appeal failure to offer a buyout or the amount of the sum offered but you can negociate with the insurance company about the amount of the buyout.
The minimum lump sum amount you are entitled to varies with your Permanent Partial Disability evaluation but the insurer is not allowed to offer less than 40% of the value of the vocational rehabilitation maintenance benefits you are entitled to.
Out-of State Workers:
If you live out-of-state (greater than 50 miles from the Nevada border), generally a buyout is your only rehabilitation benefit.
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(NRS 616C.315). You can get the form to request a hearing by clicking here -> Hearing Request Form.
When a managed care organization (MCO) which has contracted with a workers' compensation insurer makes a decision that the injured worker does not agree with, the decision must be appealed through the MCO's system for review within 14 days or the right to do so will be lost. This appeal must follow the procedure established by the MCO. (NRS 616C.305). The MCO must resolve the dispute within 14 days after it is submitted. If the injured worker is still dissatisfied with the determination, or if the MCO fails to make a final determination in 14 days, an appeal may be made directly to the Hearings Division Appeals Officer as provided for in (NRS 616C.345) and must be made within 70 days after the review or the right to do so will be lost. This means that you can bypass the Hearing Officer level and go directly to the Appeals Officer level. You can get the form to request a hearing before the Appeals Officer by clicking here -> Appeal Request Form. Note that the form also provides a space were you can request free legal representation by an NAIW attorney.