Reopening a Workers’ Compensation Claim

Reopening a Workers’ Compensation Claim with Jason D. Mills, Esq.

Tues, 8/3 10:00AM • 51:32

 

SUMMARY KEYWORDS

reopen, claim, injury, permanent partial disability, injured worker, doctor, person, rules, Nevada, understand, physician, knee, impairment, insurer, condition, chiropractor, employer, compensation, injured, claimant

 

SPEAKERS

Kevin Johnson, Jason D. Mills, Esq.

 

Jason D. Mills, Esq.  00:47

Anytime you’re thinking about reopening here in Nevada, you have to think about three things.  One, is my claim even reopenable? Two, If it is, is it reopenable for a period of only one year, and finally if it is reopenable, can it be reopened beyond that one year and for a period of your entire lifetime?  So, there are basically three different types of analysis or thought processes you have to look at to determine whether or not which application applies.

 

Kevin Johnson   01:23

Can you give me an example of each one of those?

 

Jason D. Mills, Esq.   01:25

Sure, for example, a claim that is not reopenable.  There are specific things in the statutes that say that if you don’t have more than $800 of medical expenditure on your claim, and you’ve never received a permanent partial disability award, and you have not been incapacitated from earning full wages for a period of more than five days, and an insurer sends out a specific notice, under the statute that this claim meets all of those requirements, then the claim cannot be reopened.

 

Kevin Johnson   02:06

So, if I’m understanding this correctly, if someone were to come in to see us and want to reopen a claim, we would determine based on this criteria, whether or not it’s a viable claim, because we just don’t want to reopen for any reason at all. Is that correct?

 

Jason D. Mills, Esq.   02:21

That’s right, that’s a good way to thinking about it. The legislature sets forth all of the rules for workers’ compensation. So, they also make the rules, of course for reopening, they’ve set a threshold for some cases that can never be opened. And the thought process is this. If it’s a claim of very little value, for example, you cut the end of your finger, and you went and saw the doctor, and he or she gave you a little bandage and said “Yeah, you’re going to be fine, you don’t miss any time from work, you’re not incapacitated from work” other than going to that visit, they put a Band-Aid on there, it costs less than $800. You don’t have a permanent disability award. And the insurer follows certain guidelines by giving you the correct notices to close your claim entirely under the non-reopenable statute, then that claim just wouldn’t be reopened. So very small claims is the way to think about it.  But there are other points to that, though. Specifically, insurers often don’t provide the correct notice. That would allow a claim not to be reopened. So, it’s important to look at the closing paperwork when a potential client comes in to see if the insurer actually did what they were supposed to do to ensure that a claim wasn’t reopened. So, the reality is, is most claims typically will fall under whether or not they’re reopenable for one year, or for life since this non-reopenable claim has so many steps in it that it’s quite easy to point out there was an error made, and thereby subjecting the claim to reopening rights for a period of one year.

 

Kevin Johnson     04:15

Tell me a bit about the lifetime what does that really mean? I mean, my lifetime I can reopen. But what are the criteria there?

 

Jason D. Mills, Esq.     04:24

The way to think about it is whether or not the claim is required to be reopened within a period of one year, or if that provision doesn’t apply.  So, if that provision doesn’t apply, then the claim is, in fact, reopenable for life.  So, for example, if you had a permanent partial disability award, and that’s in a workers’ compensation claim, the impairment that you received at the end of the claim for whatever injury or occupational disease that happened to you. So, if you had a 1%, whole body impairment, or total, whole-body impairment, your claims reopenable for life. If you didn’t have a permanent partial disability evaluation that resulted in 1% or more and a whole person or whole person impairment, then there’s one other way that you can make your claim subjectable to reopening rights for life.  And that is if you were incapacitated, from earning full wages for a period of five or more days when your claim was originally open. That’s a mouthful. And you got to kind of break it down and think about that one a little bit more. It used to be the rules that allowed for you to reopen a claim if you missed any time from work was based on a Supreme Court case, but the legislature in 2015 changed those rules. And they basically set forth the rules that stand for the idea that you have to be incapacitated from earning these full wages for a period of five or more days.  What does that mean? Well, typically, we think it to mean this. One, that you’ve been off of work for a period of more than five days, or you’ve been placed on light duty for a period of five or more days, and that during that time period, you did not earn your full wages. If those factors are true, even if he didn’t get a compensation award or PPD award, then your claim is reopenable for life for the remainder of your natural life. If your condition worsens and is primarily due to the old industrial accident,

 

Kevin Johnson     07:02

Can we just briefly go over a PPD? In other words, you know, we’re talking about assigning a certain value and a certain percentage. And in some cases, even though someone’s been through the process, and this is a reopening, for someone listening to this, they might be a little confused on what that means. And is there a way to kind of briefly discuss that?

 

Jason D. Mills, Esq.   07:22  

Yes, we can do that. So, in a workers’ compensation claim, you are not given damages that you would receive in a personal injury claim. I think most people out in the public understand the concept of a personal injury automobile accident, where they’re, they’re hit by an at-fault driver, and it causes some amount of damage to them, their body, their vehicle, and then they have a right to go against the person that harmed them that injured them that hurt their property and sue them or proceed against them for damages that that person wrongfully inflicted upon them, right. These damages consist of things like pain and suffering and medical treatment and future medical treatment. And such things like these, I think most people understand that concept.  It doesn’t exist like that in workers’ compensation, and workers’ compensation, you’re not entitled to damages you’re entitled to well, compensation and compensation exist effectively of one medical treatment, to vocational rehabilitation training. If your injury was so significant, you can’t go back to your old job, and then indemnity or monetary payments for missed work while you were injured. And then at the end of your claim, if that injury is permanent in nature, even if it was a small injury or a big injury, if it was permanent in nature, then an injured worker would be entitled to a permanent partial disability evaluation. And that evaluation is effectively performed by a doctor or chiropractor and assigned by the state, about 200 doctors that do this in Nevada, and they would then examine the injured worker for what condition they’re suffering from on a permanent basis. After their claim is all done, they’ve received all the treatment that they were entitled to under the statutes, and now they’re trying to figure out, well, does this person have a permanent impairment a permanent injury, and off to this rating physician or chiropractor you go to ascertain, there’s a guidebook that’s utilized the AMA guides to impairment fifth edition, and it’s utilized in this state, by law, and it quantifies all kinds of injuries that you can think of right? Injured knees, your backs, burns, you name it, anything that can happen to a human body is basically in that text. And in that text, it quantifies it, like a range of different types of injuries that can happen to someone, for example, you know, you’ve hurt your back a little bit to being paralyzed, and there’s a sliding scale in between, right? And they quantify this injury.  And in that quantification, you’re given a whole person impairment award. It’s often called a percentage of whole person impairment. So, you might have heard someone say, I got a 5% PPD, I got a 10% PPD, I got a 1% PPD. That’s what they’re talking about.

 

Kevin Johnson   10:38  

Okay. And those percentages also have to do with the value of what you’re awarded. Is that correct?

 

Jason D. Mills, Esq.  10:46  

Well, yes, the percentage is the concept of the percentage, the whole person impairment is what damages has this injury done to you on a permanent basis, the award that you received is predicated upon three factors.  And that is, how old you are. The younger a worker is, the higher value their claim has. Because they’re calculating the number of years working years and they figure by statute working years aren’t till you turn 70, it doesn’t mean you can’t work beyond 70, but that’s the way the calculation range, okay.  And then it takes your average monthly wage, how much money you’re earning before the accident, up to a state max cap that is changed every year.  And then the disability rating that was given to you by the chiropractor or physician, they take those three factors age wage and disability rating, and put it into a statutory regulatory formula. And at the bottom comes a compensation award.

 

Kevin Johnson   11:54 

And this rating, or this meeting that you go to for this, it’s the injured worker, their representation or their attorney, the doctor or chiropractor. And then is there anyone else there that makes kind of works that this determination?

 

Jason D. Mills, Esq.  12:11   

Yes. So typically, by law, obviously, the rating evaluator, the physician, or the chiropractor has to be there, of course, and the injured worker has to be there, and the injured worker has the right to request that their representative from on their behalf is also in attendance. The insurance employer can request that that’s such attendance by someone on their behalf is there. Ultimately though, the doctor decides whether or not they can exclude these people from the examination room. So in theory, a doctor can exclude anyone from the examination room, except, of course, the injured worker, that’s not common. Most physicians and chiropractors welcome representatives of the injured worker, and or the employer to be present and it’s a very common practice here in Nevada.

 

Kevin Johnson  13:05   

And during that process is their conversation. In other words, if the doctor says, hey, I’m giving this a 5%, but if we see something or if their representation, sees something and says, you know, maybe you’re not seeing this a certain way, is there a way to kind of have a conversation about that?

 

Jason D. Mills, Esq.  13:23   

Well, that’s one of the values of having representation that understands the fifth edition guidebook. So, you can point out things that are in the guidebook that perhaps the evaluator is missing, if you have a knee injury, and that knee injury also involved what we call direct trauma, or often it’s called a direct strike. And it results in you know, when you ever seen or heard someone, they move their knee and it clickety-clack, yes, we call that crepitus, and it kind of pops and moves around a little bit. And if they also have pain in their knee, those three things together, indicate that there’s an additional under the guidebook, an additional 2% whole person impairment attached to this knee injury, separate and distinct from the other injuries that the physician or chiropractor may have been examining, such as surgical implementation, a range of motion, neurological deficits, any type of hardware that may have been utilized or placed permanently into the body there. But this direct trauma or like I said, what we call direct strike scenario is a situation where if the medical records, it’s showing that it’s in there, and that’s examined upon the examination there of the climate, then that is a perfect scenario in which, you know, a skilled representative would point out doctor, you know, pursuant to this particular table on this particular chart of the guides, would a direct trauma, additional percentage apply here, okay. And of course, ultimately, the rating physician or chiropractor is in control in that particular room. So, he or she can take that under advisement or not, but it’s important that when you have skilled legal counsel, and skilled representation, that truly understand that fifth edition guide book that is required to use be used here in Nevada, by law, it’s of tremendous value to the injured worker to have someone in the room that understands that

 

Kevin Johnson  15:44  

And the reason I asked that question is that it seems that if I were to go into this and not be represented, it’s up to the doctor and not that the doctor doesn’t do their job. Of course, they’re there to do their job, but they may miss something. And there are so many parts of the human body.

 

Jason D. Mills, Esq.  15:59   

Sure, that’s right. Ultimately, like I said that the doctor controls what he or she finds and sees, and puts in, in their report. But you’re absolutely right, in indicating that if someone goes in there, and they’re not versed with this particular guidebook, I mean, it’s hundreds and hundreds of pages of long and it has 1000s of examples of different types of injuries and what they quantify to in a whole person impairment and having in-depth knowledge and understanding. And a true working knowledge of this guidebook is absolutely critical to any injured worker in the state and if you go to a permanent partial disability evaluation rating, and someone is not on your side there or hasn’t spoken with you or prepared you for that particular examination, that understands this guidebook to a great amount of detail and depth, you will be shortchanged. And that’s, and I don’t, I don’t want to say that that’s that the doctors or chiropractors are doing anything nefarious, or wrongful, it’s just such a complex text, that it’s easy to overlook things when you’re doing these ratings 2, 3, 4,  50 times a month as a physician or chiropractor., and you may or may not have noticed in this particular claimant a particular entitlement from some particular subchapter or sub chart or category that a skilled advocate would pick up on and just point out, for example, that the direct trauma, “Hey doc is, is that applicable here?”.

 

Kevin Johnson  17:55  

Right. Okay.

 

Jason D. Mills, Esq.  17:56  

So, I believe it is. And then right there, the doctor might say “Yes, yes, of course. Yes, of course, let me do the examination and the crepitus is there that the pain is there”, there’s evidence in the record and from the claimant that it was direct trauma to the knee, and when I say that, that obviously means, you know, you bashed it into something, as opposed to just twisting it.

 

Kevin Johnson  18:16 

The reason also, I bring this up, and it has nothing to do with the reopening, which what we’re talking about now, but we have people that come in to see us, they come in with an injury, and sometimes they have an injury, then the questions are, what else is hurting? It’s not always the direct injury, but there are indirect pieces of the body that can be affected by that, that even though that doesn’t hurt as much as your main source, that you’re coming in for that that actually has something to do with it.

 

Jason D. Mills, Esq.  18:48   

That’s actually an excellent segue about the reopening issue because

 

Kevin Johnson  18:49     

okay

 

Jason D. Mills, Esq. 18:52 

because the rule when you seek reopening indicates that you have to have a certification by a physician or chiropractor. When I say you, of course, I mean, the claimant, you have to have a certification by a physician or chiropractor that indicates that your condition is worse, that it requires additional rearrangement of compensation is how the statute reads, but what that effectively means is a rearrangement of compensation means, of course, medical care, or an increase in the payment of your permanent partial disability evaluation or both. And what also has to be supplied is not only this, this evidence or this doctor’s opinion, of your condition being worsened. But it has to be based upon the primary need to reopen the claim has to be based upon the conditions for which your claim was originally accepted.

 

Kevin Johnson  19:51   

Okay

 

Jason D. Mills, Esq.   19:51    

So that’s hitting back to the point that you just brought up “What if I had these other problems”?  Interesting question. So, if there are additional problems that weren’t originally accepted into the claim, you can’t reopen the claim on its face for that condition. However, if you were able to reopen the claim for an accepted condition there is nothing in the statute that precludes you to seek expansion of the scope of the claim once the claim has in fact been reopened.  So, you can’t seek the reopening for that condition, which isn’t in the claim originally. But you can if you obtain a reopening seek to expand the scope of the claim which then circles back to your point earlier of you know, if this person was unrepresented, one of the key things that we do when we represent someone, not just from a reopening standpoint, is to make sure that the scope of the claim was correct so that when the claim closes, their ability to reopen in the future contemplates all of the injuries that they were suffering from this industrial accident. I think sometimes a layperson will think, how did they not know their knee was problematic. And when they had this back claim, human injury is a strange thing. So for example, you fall off of a, you know, scaffolding from 20 or 30 feet, and you have a horrific low back injury, burst fractures of your vertebrae, and maybe you’ve damaged your pelvis or fractured severely, and they take you to the ER and they are scanning you and they’re checking you out. And they’re looking to see what is life-threatening, what is the big problem here, and if they’re seeing burst fractures on your vertebrae or shattered pelvis is they might not necessarily pick up that you’re you know, you have a partial meniscal tear on your right knee, you might not even be complaining of it. Because of the absolute agony, you’re in from the injury to your hip or your low back. Our minds don’t work that way. You’re homing in on Oh my god, there’s this life-threatening thing that’s happening to me. And that’s where the pain you’re feeling. Doctors stabilize in three minutes and get you squared away and fixed up and away you go. And then, you know, a few months later, six months later, you’re like, oh, my God, you know, my knee still isn’t right, since that 26-foot fall? And then everyone says, well, why don’t you bring up your knees like, well, you know, they were trying to save my life six months ago from that fall, and everyone’s focusing on my vertebrae, or my hips, or, or some other body part, I’m just making examples,

 

Kevin Johnson  22:27     

Right. And most people don’t come in knowing the scope of these things. So, what we see a lot is, I’m here for something, and I’ve got some other stuff that’s bothering me, but that’s really not why I’m here. Although there are other body parts that might be bothering them is a result of that injury in some cases.

 

Jason D. Mills, Esq.   22:47      

Right, very common too, you know, Nevada, north and south and the rurals is very, a lot of our industries in this state are very labor-intensive. So whether in casinos or mines or constructions, industries, which are, you know, big driver ranching, big drivers of our economy, in this state, are physically intense jobs. And I mean, these are tough men and women that are new in these jobs, right? It’s typically not the type of person that we see in these in these tough physical type of jobs, where they’re just going to come in and complain, oh, well, you know, my shoulders, also achy from that 26-foot fall, because they’re just, you know, trying to hone in on why their back is shattered, or their hip, or why their ankles shattered, not my wrist hasn’t been right ever since. But they quote-unquote, walk it off or, or just focus on what matters very, very, very common.

 

Kevin Johnson   23:48     

We’ve had people come in to pick up a check from a claim and just during the discussion, it’s like, oh, you know, my, my shoulder is bothering me, it’s been bugging me. I’m taking Tylenol, you know, and it’s like, okay, let’s go back and look at what happened to you. Oh, and is that a result? Is this new? And again, you know, unless we can kind of educate them into Yes, you were hurt, yes, we’re here to help you, but we’re also knowledgeable enough to know that there’s an entire scope of injuries that can happen from one.

 

Jason D. Mills, Esq.  24:26      

That’s right, one of the things that we’ll do is obviously really, when we’re speaking with a client is what is going on with you and just, let’s walk through it from head to toe. And you know, what, we’ll find out things that have nothing to do with the industrial accident, you know, I got this bad elbow on my left side from when I played football in high school, or, you know, I hurt my ankle in 1989, when I first started on the police force, or, you know, things along with these types of things. But it’s always important to know what’s going on, so that we can make sure that if a body part or condition should be in the claim that we do our jobs to make sure the client, the claimant is getting the adequate and correct scope of claim acceptance notices from the insurer, because if you don’t, then it’s not in the claim.

 

Kevin Johnson  25:32      

What are the conditions for reopening? In other words, what’s required? What do I need to bring with me to make this happen?

 

Jason D. Mills, Esq.  25:40  

Sure, like one of the things we were talking about earlier, is that whether a claim is reopenable, for a period of one year or for life. And one of the things that we’re trying to ascertain when someone brings in those documents especially if it’s someone we haven’t represented on the original claim, because we won’t have their underlying documents if we didn’t represent them originally, is that we need to see their old permanent partial disability evaluation report. That’s very helpful because that’s the snapshot of what was going on with the claimant at the time of claim closure whether last month, or five years ago, or 20 years ago. And with that report, we can get an idea of what the scope of the claim was, what the scope of the injury was, what the evaluation was, etc., etc. We also will learn a valuable point on if this person had a rating and they have more than 1% whole body impairment, then that subjects them to reopening for life, as opposed to a claim that’s only reopened for one year after closure.

 

Kevin Johnson  26:57 

If I’m re-injured, should I immediately seek treatment, get surgery using my own health insurance? Is that something that I should do? Or do I need to reach out before any of that happens?

 

Jason D. Mills, Esq.  27:10   

Well, first and foremost, obviously, if someone’s injured, I mean, do whatever is medically necessary, right? I mean, you certainly want to, you know, take care of whatever you can medically, then the discussion starts to revolve around, okay, I’m, I’m injured, I’m stable. So, I can should I be doing these procedures, with or without an authorization? Should I just be doing them on my own? Should I wait to reopen my claim? And really, that’s dependent upon what you and the physician are finding?

 

Kevin Johnson  27:46 

Okay.

 

Jason D. Mills, Esq.  27:47   

Right. The physician is indicating Okay, well, this isn’t emergent in nature. I, you know, you’re not going to die today if we don’t do this or stabilize you. But potentially if we have this physician indicating that it’s urgent in nature, there may be scenarios where it’s useful to have the procedure done outside of workers’ compensation, but that’s not our usual advice. Yeah, I think it’s pretty important to explain the differences in the claims that have to be reopened within one year.

 

Kevin Johnson  28:20

Okay.

 

Jason D. Mills, Esq.  28:21  

And claims that are reopenable for life.  There are different statutes, different rules, different burdens. And you have to understand these differences so that you make the correct legal, and in fact strategic decision when you are deciding whether and how to reopen a claim.  So, for example, if you never had a permanent partial disability of PPD of 1%, or more on your original claim that you’re seeking to reopen now. And you never had five or more days of incapacity from earning full wages in your original claim, then you must seek your reopening within one year of closure. That is that case cannot be reopened for life if those variables are met, and it must be reopened inside of that year. If you wait until after one year from closure and attempt to reopen a claim that falls in that mandatory one-year requirement, you will not be able to do so you are barred at law.

 

Kevin Johnson  29:35  

Why is that?

 

Jason D. Mills, Esq.  29:36  

This is a public policy call by the Nevada Legislature. As we talked about a little bit earlier, the Nevada Legislature sets these rules up. They’re the ones that make the policy considerations for our state. They the men and women that we elect to office to the Nevada Assembly and the Nevada senate are tasked with creating and amending the Nevada Industrial Insurance Act. And one of those rules is if you don’t have a claim with a PPD with 1% or more or you don’t have a claim, with five or more days of incapacity from earning full wages, then as a matter of law, your claim can only be reopened for one year. That was a policy call and made by the legislature and that is the rule. We can talk about whether we like it or don’t like it or whether it should be changed. But that is the rule. It’s also important to understand that there are different burdens on reopening cases. Now, what does that mean? You know, what does he mean by burden? Well, whenever you try to do something in the law, and you are acting, the law typically will set a burden on you a hurdle that you have to get over in order for you to receive what you’re asking for. So if your claim is only reopenable for one year, then you must attempt to do so inside that one year from claim closure, number one, and then your certification from a physician has to be based upon subjective evidence that he or she sees or understands on your claim, based on their medical opinion, that your condition has effectively worsened and the primary cause for you to have this reopening is based upon conditions upon which the claim was originally accepted.  And this burden when I’m speaking about it, subjective burden. It doesn’t it doesn’t need to be supported by an MRI or anything like that. It’s literally the doctor’s opinion from what he or she is seeing in the examination room, on the reporting on the scans that if they do have them, but they’re not required. And the legal burden that they must, that we must overcome is that it’s by a preponderance of the evidence. And what that effectively means is more likely than not. Now, there’s a different set of burdens for claims that reopen during your lifetime. And those are effectively this if you seek to reopen a claim inside of one year that can be reopened for life, contrasted with what I spoke about earlier claims that have to be reopened during that first year. In fact, claims that can be reopened for life. If you attempt reopening in that first year, the burden is higher, much higher. You have to have objective medical evidence. That’s typically you know, a doctor can look at an MRI or a CT scan and X-ray, a range of motion test that is clearly different than when the claim had closed inside that one-year period. And you have to prove by clear and convincing evidence that these primary need to reopen the claim is due to the originally accepted conditions. And clear and convincing evidence is the highest legal burden you can have in a civil setting. It’s not merely preponderance, it’s not merely tipping the scales, it’s not merely more likely than not, it’s significantly higher than that. It must be clear and convincing evidence. Now, if you wait for 12 months in one day, and then the remainder of your life, the burden is the same that I talked about earlier. Okay, on claims that are reopenable for one year, the Doctor subjectively thinks it’s worse. And it’s primarily due to the condition for which the claim was originally accepted. it warrants that rearrangement of compensation needs more treatment, and away you go. So, understanding these different distinctions on which claims can be reopened, what burdens you’re being subjected to, therefore, when you should bring these claims, or when must you bring these claims, you need to have detailed, intimate knowledge and understanding of these rules? Or else, unfortunately, you’re just going to mess it up.

 

Kevin Johnson  34:23  

Most workers or people don’t really know all of these things. So, I’m still a little unclear on the these are the ones that I can open within a year and these are the ones that are lifetime, I’m still unclear exactly on what those are.

 

Jason D. Mills, Esq.  34:37  

Sure. And that’s the magic, right? I mean, whether a person’s a worker, layperson, heck, they can be a rocket scientist, if you don’t practice Nevada industrial insurance, i.e. workers’ compensation, and do it regularly, and do it as your primary focus, you probably won’t understand how to do this, or you will be getting maneuvered by the insurer or the TPA third party administrator and won’t even know it.

 

Kevin Johnson  35:08  

So the best thing for me to do when I don’t know but I have re-injured myself, or I disagree with something that happened in the past, for example, I didn’t get the PPD that I wanted, we close the claim out. And now I want to go back and try to do something about that all of these different circumstances where I don’t really know the answer. I don’t even know if I have a claim or if I can even reopen. I need to go and discuss this with somebody.

 

Jason D. Mills, Esq.  35:35  

That’s an excellent point. The reality is, you need to bring whatever you have and sit down with a competent attorney that practices in this field to explain to you whether you do or don’t have a claim, whether you do have a right to reopen or not. If you don’t, what, what can you do? What can you not do? What should you do? When should you attempt to do so these are all very complex, yet important decisions that need to be met and understood by you before proceeding, because if you try to proceed and don’t understand these rules, you’re going to its just not going to work out the way you’re hoping. And the great thing here about what we do at GGRM is, you know, our consultations here are free of charge, you reach out to our office, you’ve got questions, and you want to sit down and have a consultation with us to discuss whether you have a claim whether you have a reopening claim and what your rights are or what they aren’t, you can sit down with, with a with our intake staff and our intake attorney team. And we can go over these questions and answer them for you. Is there anything that we can do? Or is there anything you can do? Or is there anything that needs to be done? This is something we do literally, every day of the week,

 

Kevin Johnson. 37:05  

we’ve had somebody that’s come in and they’ve injured themselves while employed with one company, and then have a subsequent injury while working with a new employer. And how does that work?

 

Jason D. Mills, Esq.  37:16 

Well, that’s an interesting question. And you can imagine, that happens quite a bit. Thankfully, we have a rule here in Nevada. But it’s called the last injurious exposure rule. And what that basically does, it says that if you have injured yourself in a subsequent work injury, to the same body part, or same body condition that was injured or diseased in the past, same body part or condition, and you’re now either at the same employer or a different employer, what ends up happening is that new exposure has a test applied to it. And the question is this well, is this any amount of aggravation? Or acceleration any worsening of that preexisting prior industrial or occupational condition? And if so, then it’s its own brand-new claim, and it’s entirely responsible for the entire resulting condition. And, you know, some people might hear that and go, wow, wait a minute, how is that fair? What if I had this really bad injury at one job? And then six months later, I had kind of a medium injury to the same body part. Why is the new company liable for that, you know, the Nevada Supreme Court struggled with that, and they basically thought about it from a policy standpoint, and they were thinking, well, what comes around goes around. So sometimes an employer might benefit from this bright-line rule. And sometimes an employer might pay into this bright-line rule. Sometimes you’re on the receiving end, sometimes you’re on the giving end, it’s just when all said and done, they just said that this is better to have a bright-line policy like that. And we call these bright-line rules where they just draw them in the sand and say, This is what the rule is. A new employer can become entirely liable for an old injury if a new injury to the same body partner or disease condition got aggravated as a new industrial injury, and then that would take over for everything from the prior injury. Even if you were still in treatment for the old injury, even if you weren’t even stable yet. And if it’s a mere reoccurrence, then the original injury or disease condition remains the responsible or paying party or injury if you follow what I’m saying there.

 

Kevin Johnson  39:36  

My question is if I go to work for another employer,

 

Jason D. Mills, Esq.  39:40  

sure.

 

Kevin Johnson  39:40   

And I’ve had this, let’s say I blew my knee out in the previous employer, I reinjure that knee on his new job?

 

Jason D. Mills, Esq.  39:48   

Yes.

 

Kevin Johnson  39:49   

We’ve discussed that. But is it does it ever happen where the new employer can say that happened at the old job? We’re not responsible for this, even though they’re not really responsible? It’s the insurance that is responsible. Do you ever have companies try to fight that?

 

Jason D. Mills, Esq.  40:05   

Well, we see companies fight that all the time. That what they’re trying to do a lot of the times is classify it as that Oh, that’s mere reoccurrence. And that may be the case but ultimately, it’s a medical factual analysis that comes down like what do the physicians or chiropractors think,

 

Kevin Johnson  40:24   

Okay

 

Jason D. Mills, Esq.  40:25  

What is their opinion? Is this just mere progression of the old problem a mere reoccurrence or is this actually a new injury a new distinct injury or distinct a new distinct disease process that essentially is an aggravation of the old one and it and there’s no waiting test. It’s not substantially aggravated or partially aggravated, it’s any amount of aggravation. So, we like to say this word in the law. And I imagine folks will roll their eyes What the heck is that “a scintilla”. It’s just any amount, just a tiny little amount a scintilla of evidence to show that there’s a worsening and aggravation by this new industrial event. And that will become the responsible injury, insurer, and employer notwithstanding that prior and in the employers that don’t want to cover that will win or lose, frankly, on this medical question of is it merely occurrence or is an aggravation? And you can’t contract away that right? So, you can’t when you get hired, you can’t sign something that says, Oh, well, I had an old injury and they’ll stay responsible, even if I come to work here sign. JOHN q employee,

 

Kevin Johnson  41:41  

I don’t

 

Jason D. Mills, Esq.  41:41  

at company acme

 

Kevin Johnson  41:42  

I would I can’t imagine that you would even legally be able to ask a prospective employee if you’ve been hurt on the job previously? Or

 

Jason D. Mills, Esq.  41:52 

Kevin, your insight is exactly correct.

 

Kevin Johnson  41:54

Okay.

 

Jason D. Mills, Esq.  41:55  

There is literally a statute on the books by our Nevada Legislature signed by our governor into law that says, you can’t do that. It’s not allowed. And by the way, if you try and you present this document, well, we’re not going to enforce that document.

 

Kevin Johnson. 42:13 

Got it.

 

Jason D. Mills, Esq.  42:14  

Or the extent to which that document is attempting to change one’s liabilities and obligations under the Act. The Act sometimes is void, as a matter of law can’t be done. People companies, lawyers sometimes argue that it can, it cannot be done.

 

Kevin Johnson  42:37 

What happens if we go through the process, and I’m denied my reopening?

 

Jason D. Mills, Esq.  42:42  

If you are denied your reopening, and your appeals are either over or you don’t wish to continue to appeal. If the parties are not satisfied with those results, they can appeal from the executive branch out of the appeals office over to the district court and a petition for judicial review. If the parties aren’t satisfied there, they can appeal to the Nevada Supreme Court, where they will either keep the case or push it down to the court of appeals Not to be confused with the appeals officer.

 

Kevin Johnson  43:11  

MMM hmm

 

Jason D. Mills, Esq.  43:12  

If you either don’t continue your appeal, or the other party doesn’t continue their appeal, or you extinguish all of your appeals. That would be all the way up obviously to the highest court, Supreme Court. If you extinguish those then you cannot seek to reopen until one year after that decision has been made. Even if you went to the doctor the very next week and got all the proof you needed to prove it up and everybody admits even the insurer and the insurer’s Council and everybody’s saying wow, that’s the most fantastic document on Earth, we will reopen that case, we’d love to do, they can’t, that you cannot seek to reopen for a period of one year. And of course, I’m talking about claims that are reopened for life right under claims that are not reopenable or claims that were only reopenable for one year. But once a ruling has come down adverse to your reopening, right, that puts a bright-line rule for you to reopen at one year from the date of your loss. Now, you still have reopening rights for life, you just can’t bring it again until 12 months in a day has passed. And again, then you’re you’ll be submitted to the exact same burdens that I brought up earlier.

 

Kevin Johnson  44:22  

And this doesn’t matter if I’m working or not. So, for example, if I left my job voluntarily unrelated to the injury before I can still reopen, because that’s my right doesn’t mean I’m I can be retired and still reopen a claim.

 

Jason D. Mills, Esq.  44:39 

Yes, you can. But there are some distinctions there, right. So if you withdraw yourself from the workforce, you retire, and it’s not solely due to this injury, and you’re not working anywhere, and you’re receiving some sort of government benefit or private pension, you know, social security, disability, or regular Social Security or your union retirement pay, then you can still reopen your claim but your benefits are limited to medical benefits only not monetary benefits. Now, if you’re working one day a week at the local Mega Mart, and it’s you’re a greeter there, you’re not retired. Even if you’re working four hours a week, you might be receiving a retirement, maybe we got a pension from that from a great employer used to have or maybe have a pension from a prior disability or a private pension or government pension that you’re that you are receiving. But you know you’re working at the local library. You’re working at the local mall at the local Mega Mart. You know, if you are not retired and voluntarily removed from the workforce, then you can when you seek to reopen, you not only would get medical benefits, but the monetary aspect of it also would still apply,

 

Kevin Johnson  

understood  46:00 

 

Jason D. Mills, Esq. 46:01   

Now your benefits are tied to when your claim was originally accepted. So your wage calculation is fixed in time from the wage calculation that you received back when the claim was open originally.

 

Kevin Johnson  46:16  

So, does that change, even though that’s frozen in time, they take into consideration your new age of wherever you’re at?

 

Jason D. Mills, Esq.  46:24  

Yeah, so let’s say you reopen a claim 10 years later, and you’re 10 years older, and you know, you’re only working a couple of hours a week at the local library, and you’ve proven up you’re reopening. Well, what wage Are we going to use? Well, they’re going to use the wage on your original claim from 10 years ago. So, whatever that wage was, that’s the wage, they’ll be using the average monthly wage, the “AMW”, you might hear see it written. And then when if you receive another permanent partial disability award, you will then have that calculation performed at what your age is now. But that wage is frozen in time from when your claim was accepted, because our rights and our remedies and our obligations under the Act under that industrial insurance actor, occupational disease act are tied, in almost all cases, not all, but in almost all cases, to the moment in time to where the when the injury or occupational disease occurred.

 

Kevin Johnson  47:28  

So, after listening to this and kind of getting a grasp on not only the process but the rules and also the burdens, it seems to me that anybody that has opened, a claim, has completed their claim, should also educate themselves on just in case something happens in your life and how that changes what remedy is available to me.

 

Jason D. Mills, Esq.  47:52   

You know, one of the biggest things that we do here at GGRM is when we’re navigating, and I like to use that phrase navigating when we’re navigating the Nevada Industrial Insurance Act, or Occupational Disease Act, when we’re navigating these claims for our clients, what we’re doing is that not only getting them the medical benefits that they’re entitled to, and the indemnity or monetary benefits they’re entitled to, but we’re also making sure that when that claim is over when it closes when it’s done, it’s procedurally and factually set up as best as possible for the future.  So if it needs to be reopened, it was closed properly with all the determinations like the wage correctly taken care of the scope of the claim so what body parts or conditions are properly in the claim. These types of things, we’d like to tidy it up and close it up neatly with the mindset of, well, maybe this person will or won’t need to reopen their claim. But we’re just going to presume that every single one of our clients came back to us and needed to reopen their claim, and then were able to prove they could reopen their claim so that their claim is in an excellent position to move forward into reopening. Now, the reality is, is most claims don’t reopen. But if you treat them like they will be, then you will have set them up correctly, procedurally factually, in a manner to assist them in the years to come. So even 10 years down the road, and God forbid I get hit by a bus, their claim is still able to be taken care of by someone in a manner that makes it easier for them to reopen when they seek to do so. And that is a very important thing that I don’t think many people really think about. And I certainly know, most firms don’t think about or set the claim up in such a way to be thinking about reopening in the years to come in the future. That’s a very important thing that should be done on every claim.

 

Kevin Johnson  50:04   

The other thing that I’ve noticed as well is that in a few of these Supreme Court cases that I’ve followed, there are decisions that are made that have taken a long time in some cases to come to fruition and then those affect previous cases.

 

Jason D. Mills, Esq.  50:21   

That’s right. So notwithstanding your rights and remedies are fixed in time. At the moment of injury in most situations, that doesn’t mean that with 100% certainty the Nevada Legislature or the Nevada Supreme Court can’t alter or amend rules in the future that will have some impact on you. Now there are all kinds of scenarios Where these things can be and can’t be and deal with, you know, ex post facto rule, changes of law, etc. A real down in the weeds level stuff. But it’s important to know and understand that you need to be situated with a firm that is got its fingers on the pulse of this issue, what’s going on legislatively? What’s going on in the Nevada supreme court? How is that going to impact our current and future clients or our past clients that are coming back that need assistance? Having that understanding and that grasp is critical.