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Should Injured Workers Bring an Attorney to their Medical Exams?

After being injured at work it’s important to follow the steps for filing a workers’ compensation claim. Ideally an employer’s workers’ comp insurer will pick up the costs of the employee’s medical care from the first visit to a doctor until the injury has healed. In reality, though, insurers work hard to limit their exposure to costs related to covered injuries. One way they try to do this is by arguing that the injury is not as significant as the employee claims. This risk can be mitigated by having an attorney present during medical exams.

After receiving a claim for benefits an insurer has the right to require the injured worker to submit to an independent medical examination, or IME. The formal purpose of the IME is to ensure that the insurer is basing its coverage decisions on a reliable and supposedly neutral diagnosis by a physician other than one with which the patient may already have a relationship. In reality insurers often request an IME because they disagree with an initial diagnosis, or have doubts about whether an injury is related to the worker’s job.

The state maintains an official list of physicians who are authorized to perform examinations of work-related injuries. Insurers are very familiar with the doctors on this list. They know who has a history of providing insurer-favorable diagnoses and will steer unwary patients to those doctors whenever possible. When a worker is told to attend an IME, the insurer may provide a limited list of doctors to choose from for the examination. The worker is required to attend the IME, but has the right to request a second opinion from another state-approved doctor if the outcome of that initial exam is not satisfactory.

The IME is potentially one of many “independent” examinations that the patient will undergo over the course of a workers’ comp claim. For example, if the injury results in a permanent partial disability the extent of the disability will need to be evaluated by a physician who is specifically trained in how to do this.

The extent to which a patient needs to have an attorney present at a medical exam will depend on the nature of the injury and the extent to which facts about the injury are in dispute. An attorney can help the patient decide whether having an attorney or other witness on-hand is advisable, but as a general rule it is better to have a witness along than to go alone. The witness can take notes about the examination and may provide important testimony in the event that the results of the exam need to be disputed in a later proceeding. Note that some physicians may claim to have a rule prohibiting others from attending these exams. This should raise concerns that the exam may not be fair, and should be disputed.

For more than 45 years the law firm of Greenman Goldberg Raby Martinez has helped injured workers get the coverage they deserve. If you have been injured at work, our experienced injury attorneys are standing by to offer advice about your case. Call us today for a free attorney consultation at 702-388-4476 or reach us through our contact page.

Can Workers Sue Employers for Especially Dangerous Conditions at Work?

Some jobs are inherently dangerous. Firefighting, heavy construction, and police work are just a few examples of high-risk professions. Employers in these professions take steps to mitigate the dangers their employees face. Beyond the clear importance of protecting their valued employees from harm, employers also want to avoid the expense of an injured employee (in terms of lost time, insurance, disability accommodations, and so on) and the potential regulatory and media attention that can come from serious accidents. But at what point can employees sue employers for dangerous conditions at work?

State and federal safety laws and regulations provide broad guidelines for workplace safety. Enforced by the federal and state Occupational Safety and Health Administrations (OSHA), these rules cover most types of high-risk conditions at work. Specific rules address things like workplace air quality, use of ladders, design and use of heavy equipment, and electrical work. In addition to specific rules, state and federal laws also feature what is called the “general duty clause.” This clause requires employers to provide workplaces that are “free from recognized hazards that are causing or likely to cause death or serious physical harm.” 29 U.S.C. § 654(a)(1), NRS 618.375(1).

The primary means of addressing workplace safety concerns is to submit a complaint to the Nevada Department of Business and Industry. If the agency determines that a complaint has merit it will arrange for an inspection of the workplace. Findings from the inspection will be reported to the employer, which has a certain amount of time to resolve the dangerous conditions. If the employer fails to adequately address the problem the agency may take enforcement action against the employer to ensure that noncompliant conditions are resolved.

It’s important to note that employees can’t sue to enforce OSHA rules on their own. Instead, workers who file OSHA complaints or who refuse to work in unreasonably dangerous conditions are protected against retaliation by their employers. If an employer fires an employee under such circumstances it may be liable in a lawsuit for wrongful termination. An employee considering these steps should consult with an attorney to craft a sound strategy.

What about workers who are injured at work by unaddressed safety conditions? Even in these situations a worker’s ability to sue the employer may be limited. Workplace injuries are covered by Nevada’s workers’ compensation system, which has two critical features for this analysis. First, workers’ compensation is a no-fault system, meaning that the worker’s injuries are covered without consideration for who or what is responsible for the injury. Second, an employer that purchases workers’ compensation insurance ordinarily cannot be sued for personal injury unless the employer deliberately caused the injury or doesn’t carry enough insurance to cover the kinds of risks that its employees face.

For more than 45 years the law firm of Greenman Goldberg Raby Martinez has helped clients in the Las Vegas area with workplace injuries. If you are concerned about dangerous conditions at your job and you’d like to understand how your legal rights may be affected by taking action to resolve them, call us today for a free attorney consultation. We can be reached at 702-388-4476, or ask us to call you through our contact page.

Asking Employers for Evidence of a Workplace Injury

Nevada law provides that workers’ compensation insurance covers injuries and diseases that arise out of and in the course of employment. The worker making a claim bears responsibility for proving that the injury was work-related. In some cases this burden is relatively easy to meet, but in others it can present challenges. Quite often the employer has important evidence that the worker will need to establish and defend a claim.

One source of challenge for injured workers is the financial incentives of employers and insurers to deny claims or limit their scope. Their efforts to do this get much easier if the worker does not have adequate evidence that the injury or disease arose out of and in the course of employment. If an injury’s relationship to the job is clear from the basic facts, the evidence involved may be relatively straightforward. For example, a warehouse employee who is on the clock and injured when a palette falls off a forklift may face few questions about the work-relatedness of the injury.

But other circumstances have given injured workers more difficulty. Here are a few examples:

  • Workers who are injured during breaks.
  • Injuries suffered while traveling, especially if the travel involves an element of personal time.
  • Diseases that are slow to develop, like cancer or hearing loss.

Cases that involve “unconventional” facts require an especially careful approach to evidence. The employer can be a critically important source of vital details that support a claim. A workers’ compensation attorney helps clients get all the relevant information from employers, preferably as soon as possible following the injury to ensure that facts are still fresh. If the employer isn’t forthcoming with details, an attorney can help the client take more aggressive steps to force the issue. And if the employer has deliberately hidden or destroyed vital evidence, the attorney can ensure that such bad faith efforts do not succeed.

Each case involves unique evidence requirements. Here are a few examples of the kind of evidence an employer may have that the worker will need:

  • Evidence of the cause of the injury, to show that the injury happened at work. (Note that because workers’ compensation is a no-fault system, evidence of responsibility for the injury is not relevant.)
  • Testimony from other employees or managers attesting to the facts of the injury.
  • Documentation related to the injury, especially in cases involving diseases where the employer has conducted some analysis that may serve to show the underlying cause.

For over 45 years the law firm of Greenman Goldberg Raby Martinez has helped clients in Las Vegas pursue their workers’ compensation claims. We can help you work with your employer to get the facts you need to ensure that your claim is accepted. Call us today for a free attorney consultation. We can be reached at 702-388-4476 or send us a request through our site.

How an Attorney Can Help Your Workers’ Comp Case

People often make workers’ compensation claims without talking to an attorney about their rights. This can be the right approach for relatively minor injuries that can be resolved with one or two visits to a doctor and don’t raise disability or other long-term issues. But in many cases proceeding without an attorney’s help can be a serious mistake. An attorney can help a workers’ compensation claim in a number of important ways:

  • Gathering all the facts. Someone who doesn’t handle workers’ compensation claims all the time may not know what information can be important over the lifetime of a claim. An attorney works with the client to gather all the important facts of the injury or disease, with special focus on documenting information in such a way that it can be used in any future appeals process. Evidence is always important but can be especially critical if there are potential grounds for denying the claim, such as questions about whether or not the injury was truly work related.
  • Managing the insurer relationship. Workers’ compensation insurers would much rather deny every claim if they could. Their adjusters are hired to find every excuse to discourage, discredit, or deny claims. Having an attorney on the case does more than just help keep an eye on the insurer. It also can discourage the insurer from using wrongful methods that an attorney will catch. For example, insurers sometimes don’t provide clear notice of deadlines or required next steps. An attorney can ensure that such errors don’t leave the client without options or give the insurer an inappropriate opportunity to make the claims process more difficult.
  • Keeping an eye on the medical examination process. Someone who has been seriously injured at work will need to submit to one or more medical evaluations by a physician selected by the insurer. The doctors who make these evaluations often have conflicting interests: to win repeat business from the insurer, an evaluator may have an incentive to scale back an initial diagnosis to something that will cost the insurer less. Patients can request that their attorney be present for most types of evaluation exams. The attorney’s job in these cases is to verify that the doctor is following prescribed procedures, and to ensure that the client can protect his or her interests during the exam.

These are just a few of the reasons for working with an experienced workers’ compensation attorney to resolve your claim. For over 45 years the law firm of Greenman Goldberg Raby Martinez has helped clients get the most from their workers’ compensation claims. If you would like to speak to an attorney about your case, please call us today for a free, confidential consultation at 702-388-4476 or ask us to reach out to you through our contact page.

Seeking Workers’ Compensation Coverage from Former Employers

Someone who has suffered a work-related injury or disease ideally gets covered by an existing employer’s insurance. But injuries and diseases are not always immediately obvious, even if their cause is clearly work-related. Sometimes the need for insurance coverage only comes up after leaving the job where the problem arose. In such cases, the individual’s current employer (assuming the individual is still working) may not be responsible for providing workers’ compensation coverage for the problem.

Instead, the injured person may need to seek compensation under a former employer’s insurance. Such cases involve a number of challenges that are best addressed with the help of a workers’ compensation attorney. Here are a few examples of the kinds of challenges the injured worker can expect to face:

  • The problem of proof. Someone who discovers an injury or disease after leaving a job will need to prove that it was related to a specific job and not some other cause. Insurers are likely to deny claims for injuries that are not clearly tied to a work-related incident. Proof can be especially challenging in cases of slowly developing disease, like cancer. Even if the sick person was exposed to a carcinogen at work, the insurer likely will argue that the cancer could have been caused by something else and therefore isn’t covered.
  • Lack of cooperation from the former employer. Related to the issue of proof is the former employer’s potential lack of interest in the case, or worse the employer’s unavailability due to no longer being in business. Quite often the details of a work-related injury need to come from the employer itself. If the employer no longer is in business, or key witnesses are no longer working there, gathering all the necessary background information may be more difficult.
  • Technical errors. The workers’ compensation system is highly regimented with tight deadlines and specific procedures that must be followed to receive benefits. Insurers seize on technical violations to deny claims. Seeking coverage for an illness or injury after deadlines have passed may give an insurer the excuse they need to deny the claim. Although a technical fault may not mean the end of the claims process, it may mean starting a dispute with the insurer.

Given the added complexity of submitting workers’ compensation claims against former employees, people who find themselves in this situation should seek professional assistance with the process. For more than 40 years the law firm of Greenman Goldberg Raby Martinez has helped people in the Las Vegas area resolve their workers’ compensation claims disputes. For a free attorney consultation about your case, please give us a call today at 702-388-4476. We can also be reached through our contacts page.

Seeking Workers’ Compensation Coverage from Former Employers

Someone who has suffered a work-related injury or disease ideally gets covered by an existing employer’s insurance. But injuries and diseases are not always immediately obvious, even if their cause is clearly work-related. Sometimes the need for insurance coverage only comes up after leaving the job where the problem arose. In such cases, the individual’s current employer (assuming the individual is still working) may not be responsible for providing workers’ compensation coverage for the problem.

Instead, the injured person may need to seek compensation under a former employer’s insurance. Such cases involve a number of challenges that are best addressed with the help of a workers’ compensation attorney. Here are a few examples of the kinds of challenges the injured worker can expect to face:

  • The problem of proof. Someone who discovers an injury or disease after leaving a job will need to prove that it was related to a specific job and not some other cause. Insurers are likely to deny claims for injuries that are not clearly tied to a work-related incident. Proof can be especially challenging in cases of slowly developing disease, like cancer. Even if the sick person was exposed to a carcinogen at work, the insurer likely will argue that the cancer could have been caused by something else and therefore isn’t covered.
  • Lack of cooperation from the former employer. Related to the issue of proof is the former employer’s potential lack of interest in the case, or worse the employer’s unavailability due to no longer being in business. Quite often the details of a work-related injury need to come from the employer itself. If the employer no longer is in business, or key witnesses are no longer working there, gathering all the necessary background information may be more difficult.
  • Technical errors. The workers’ compensation system is highly regimented with tight deadlines and specific procedures that must be followed to receive benefits. Insurers seize on technical violations to deny claims. Seeking coverage for an illness or injury after deadlines have passed may give an insurer the excuse they need to deny the claim. Although a technical fault may not mean the end of the claims process, it may mean starting a dispute with the insurer.

Given the added complexity of submitting workers’ compensation claims against former employees, people who find themselves in this situation should seek professional assistance with the process. For more than 40 years the law firm of Greenman Goldberg Raby Martinez has helped people in the Las Vegas area resolve their workers’ compensation claims disputes. For a free attorney consultation about your case, please give us a call today at 702-388-4476. We can also be reached through our contacts page.

Suing an Employer for Intentional Infliction of Emotional Distress

Employers can have powerful influence over their employees’ mental health. Job-related stress, whether from management pressure or other factors, is a common problem. Personality conflicts, disagreements over job responsibilities, and unreasonable demands are an ordinary part of work. But sometimes an employer’s behavior edges into abuse. In extreme cases, the employee may be able to sue the employer for intentional infliction of emotional distress.

When thinking about wrongful behavior by an employer it’s worthwhile to keep in mind that “the employer” is not just the owner of the company or the employee’s direct manager, but can mean any agent of the business. An employer can be held responsible for actions taken by any of its employees during working hours provided that the employer is aware of the employee’s wrongful behavior.

Nevada law requires plaintiffs who sue for intentional infliction of emotional distress to prove four things:

  1. The defendant’s conduct must have been extreme and outrageous. The sort of behavior that meets this standard can be the focus of court arguments. Whether the employer’s behavior was “extreme and outrageous” is determined according to the context of the behavior and the social norms surrounding it. Proving that the behavior happened can be a critical factor—having coworkers available to corroborate the plaintiff’s story can be very helpful.
  2. The defendant intended to cause the plaintiff’s emotional distress, or recklessly disregarded the harm being done to the plaintiff. It isn’t enough that a manager is harsh or rude in general. There are two paths to recovery: either the manager must have wanted the employee to suffer, or the manager ignored signs that the employee was suffering and continued a bad behavior.
  3. The plaintiff actually suffered extreme or severe emotional distress. Proving actual injury is a basic requirement for recovering damages in litigation. There are numerous ways to prove emotional harm, including testimony from psychiatric professionals, family and friends who have observed the plaintiff’s suffering, or testimony from coworkers as to how the employer’s actions affected the plaintiff.
  4. The defendant’s conduct caused the plaintiff’s distress. A common tactic used by defendants is to look for alternative causes of the plaintiff’s emotional injury. For example, if the plaintiff has a mental health condition such as clinical depression that is unrelated to work, it may be difficult to show that the employer’s actions were solely responsible for the plaintiff’s injury.

Miller v. Jones, 114 Nev. 1291, 1299-1300 (1998).

Generally speaking, the more outrageous the employer’s behavior, the more likely the plaintiff will be able to recover damages. Bad behavior can be systematic and repetitive: for example, a manager who mocks an employee’s appearance day after day and doesn’t stop after the bullying visibly affects the employee. A single incident can also be outrageous. For example, an HR manager who announces embarrassing details of an employee’s criminal background check at a work lunch may be engaging in bad behavior that meets the standard, provided the other elements are present.

For more than 45 years the law firm of Greenman Goldberg Raby Martinez has represented injured clients in the Las Vegas area. If you have endured severe emotional harassment at work, call us today for a free attorney consultation at 702-388-4476 or reach us through our contact page.

A Lawyer’s Role in Mediation Proceedings

A Lawyer’s Role in Mediation Proceedings

Mediation has become a popular preliminary step in legal disputes where the adverse parties may be able to resolve their differences through moderated dialogue. Many types of contracts and some statutory procedures require or encourage mediation as a first step in any dispute process. At its most successful, mediation can resolve problems quickly, at low cost, and in a way that leaves both sides in a dispute feeling satisfied with the outcome. Despite its friendly ideals, parties in mediation still need the assistance of lawyers to protect their interests.

What is mediation?

In mediation people or organizations that have a legal dispute meet with a mediator to discuss their problem in hopes of resolving it without resorting to more expensive and time-consuming legal solutions (typically, litigation). Mediators receive specialized training in providing neutral assistance to both parties, with the goal of helping each party identify their core issues, goals, and areas of potential compromise. Mediation usually is a confidential process, meaning that the parties can make statements without concern that they will be made public or later be used in litigation.

The mediation process

An attorney’s role in mediation begins long before the mediation meetings begin and can carry on until the process reaches a formal end, either in an agreement or, if the mediation didn’t successfully resolve the dispute, in further legal action. The process can be broken into three easily understood phases:

  • Before mediation begins. At the preparatory stage an attorney helps the client gather information, make necessary disclosures to the other side, and craft a strategy. Attorneys also coach clients on how to handle difficult questions, understand the role of the mediator, and get clear about what mediation can and can’t accomplish.
  • During mediation. The attorney’s assistance to the client during the mediation process differs significantly from his or her role in litigation. The largest difference is that the attorney is there to give advice to the client. Mediation is a discussion, not an argument, so the attorney does not speak directly with the mediator or the other side on the client’s behalf. The attorney’s role is primarily to help clients evaluate the merits of different proposals, weigh different strategies (such as whether to make or accept an offer), and frame arguments. Attorneys can also draft materials to assist the process and can help the client navigate procedural matters like scheduling.
  • As mediation concludes. In some situations a successful mediation process needs to be followed up with an agreement between the parties that reduces their compromise to a document that can be legally enforced. The mediator may continue to play a role in crafting this kind of agreement, but the clients’ attorneys likely will play a key role in making sure that the agreement properly reflects the clients’ agreement. Once again the attorney’s goal at this stage is not to impose the attorney’s opinion about what the agreement should be, but rather is to ensure that the client’s preferences are met.

If the mediation was not successful the attorney’s role changes. Ensuring that the mediation is concluded correctly, with respect for the parties’ confidentiality, is just the first step. The attorney also discusses next steps with the client and potentially prepares for pursuing further actions, either in arbitration (where arbitration is required) or litigation. At this stage the attorney takes the wheel, in the sense that the other party no longer communicates directly with the client but instead works through the attorney.

GGRM is a Las Vegas personal injury and workers’ compensation law firm

For more than 45 years the law firm of Greenman Goldberg Raby Martinez has helped clients in the Las Vegas area protect their legal rights and recover compensation. We assist clients at all phases of their disputes and are happy to help clients pursue resolution of conflicts through mediation. For a confidential, no-cost attorney consultation, call us today at 702-388-4476, or ask us to call you through our contact page.

Volunteers and Workers’ Compensation in Nevada

Volunteers and Workers’ Compensation in Nevada

Organizations that rely on volunteers to do some of their work should carry adequate insurance to cover the possibility that a volunteer is injured on the job. But volunteers who suffer injuries while helping out causes they care about can be surprised to discover that the organization’s insurance program doesn’t cover them. That is in part because employers are not required to provide workers’ compensation coverage for most types of volunteers. And when they do, the unsalaried nature of a volunteer position can raise questions about the scope of benefits the injured worker should receive.

Volunteers are not necessarily covered by workers’ comp

Nevada law provides that “employees” must be covered by an employer’s workers’ compensation plan. Independent contractors, subcontractors, and their employees can fall within the scope of mandatory coverage as well. In general, because volunteers are not employees the organizations for which they work are not required to give them workers’ compensation benefits. There are a number of exceptions to this general rule: volunteer firefighters and volunteer health practitioners are two examples of volunteers who receive benefits.

One of the reasons an organization that relies upon volunteers might seek workers’ compensation coverage for them is to avoid facing expensive personal injury litigation in the event a volunteer is hurt. Once a person is covered by workers’ compensation insurance it becomes his or her sole remedy as a matter of law, except in rare cases of intentional injury. A volunteer who isn’t covered by workers’ comp benefits may be placed in the difficult position of needing to file a personal injury lawsuit against the organization they support.

Calculating a volunteer’s benefits

A volunteer who is fortunate enough to be covered by workers’ compensation benefits should have medical expenses taken care of. One of the key questions in these cases is how to calculate the volunteer’s lost wages in the event the volunteer must take time off from a regular job. Because the volunteer work isn’t compensated, there isn’t a clear measure against which to calculate lost wages with respect to the volunteer work. And what about lost wages from the regular job?

The Nevada Supreme Court recently examined this question in Felton v. Douglas County, No. 70497 (Nev. Feb. 15, 2018). In a nutshell, the Felton case held that an injured volunteer’s “deemed wage” benefits should be calculated taking into account all of the worker’s concurrent employment. In other words, an organization’s workers’ compensation coverage should provide lost wages benefits that are calculated according to a volunteer’s full employment picture, not just the volunteer work itself.

For over 45 years the attorneys at Greenman Goldberg Raby Martinez have represented clients in the Las Vegas area in personal injury and workers’ compensation cases. If you have been injured while volunteering and have questions about how to resolve your situation, we may be able to help. Call us today for a free attorney consultation at 702-388-4476 or request a call through our website.

Filing Complaints with the Nevada Division of Insurance

Filing Complaints with the Nevada Division of Insurance

From a certain point of view, insurers are in the business of denying claims. Finding a way to limit the scope of benefits a claimant can receive is how insurance adjusters make their living. Naturally, an insurer is legally permitted to aggressively defend itself against the possibility of fraud or inflated damages claims. But an insurer’s aggressive posture can and often does cross the line into the realm of bad faith or, even worse, fraud on the part of the insurer. When an insurance dispute arises the insured has the option of submitting a complaint to the Nevada Division of Insurance.

What does the Nevada Division of Insurance do?

The Division of Insurance has a number of important functions, with consumer protection being among time. The Division has staff dedicated to helping resolve disputes between consumers and insurers. They will investigate cases and offer mediation services to bring the dispute to amicable resolution without involving the relatively slow and expensive court system. The Division oversees state licensing of insurance professionals, which means that it has the authority to revoke the license of a professional or even a business if it has committed serious violations.

The complaint process begins by submitting a form online, or alternatively by mail. A consumer must provide all the information the Division needs to evaluate the claim, including a signed release form to permit the Division to seek medical information from the claimant’s doctors, if necessary. The Division considers cases involving potentially improper denials of claims, improper cancellations of policies, and disputes related to the necessity or efficacy of medical treatments. Once the Division receives the complaint and provides a notice to the insurer, the insurer has a short time to respond to the complaint.

The Division of Insurance has limited power to resolve disputes

Although the Division can help a consumer in a number of important ways, its authority in disputes is limited to a mediator role. Among other things, it cannot handle complaints brought by consumers who are represented by an attorney. Essentially, the Division offers no-cost assistance to consumers who otherwise cannot find or afford the help of an attorney. The Division also cannot order an insurer to provide coverage or alter a decision.

A consumer who feels that an insurance company is acting in bad faith or unethically may find that pursuing recourse through litigation offers a greater chance of a favorable outcome. This is especially true when a case involves complicated issues that make it difficult to compile a comprehensive complaint without an attorney’s help. Speaking to an attorney needn’t foreclose submitting a complaint to the Division of Insurance. The consumer can’t be represented by an attorney in a matter that is submitted to the Division, but an attorney may be able to help the consumer determine whether it makes sense to pursue a remedy through the Division complaint process or through litigation.

GGRM is a Las Vegas personal injury law firm

For more than 45 years the law firm of Greenman Goldberg Raby Martinez has represented injured clients in cases involving personal injury, workers’ compensation, and insurance disputes. If you aren’t sure whether filing a complaint with the Division of Insurance is the right move for you, call us today for a free attorney consultation at 702-388-4476 or reach us through our contact page.