IF MY CONDITION GETS WORSE, CAN I GET FUTURE MEDICAL TREATMENT FOR MY WORK INJURY?
One of the most valuable benefits for the injured worker in Nevada is the lifetime re-opening right. After a claim closes, an injured worker may be able to re-open the claim in the future. However, the process is difficult. The fact that the industrial condition hurts more is not enough to get a claim re-opened. The injured worker is required to provide the insurer with reporting from a doctor or chiropractor that the industrial injury has objectively worsened, that the primary cause of the worsening is the industrial condition, and there is proposed treatment. If the request is made more than one year after claim closure, the standard is a preponderance of evidence [more likely than not, more than 50%]. If the request is made within 1 year of claim closure, the standard is clear and convincing evidence.
The insurer can either re-open the claim, deny re-opening or authorize re-opening of the claim for the limited purpose of a medical investigation. The decision will be made through a determination letter with appeal rights. If the determination is not in the injured worker’s favor, it is imperative that they appeal the determination to a hearing officer within 70 days.
If the injured worker was not incapacitate for at least 5 consecutive days, or 5 cumulative days within a 20-day period, from earning full wages as a result of the industrial injury and did not receive benefits for a permanent partial disability, the request for re-opening must be made in writing within 1 year after the date on which the claim was closed.
Retirement can cause an issue for the injured worker and re-opening. If an employee’s claim is reopened, the injured worker is not entitled to vocational rehabilitation services or benefits for a temporary total disability if, before the claim was reopened, the injured worker retired or voluntarily removed himself from the workforce for reasons unrelated to the original industrial injury. Retirement is defined in the statute as when a person who, on the date he filed for reopening the claim under NRS 616C.390, is not employed or earning wages; and receives benefits or payments for retirement from a pension or retirement plan, a Governmental program; or a plan authorized by 26 U.S.C. § 401(a), 401(k), 403(b), 457 or 3121.
Benefits before the claim re-opening request is made are not allowed unless good cause is shown to provide the retroactive benefit. If good cause is shown, the insurer is required to allow the cost of emergency treatment if the health care provider establishes the necessity of the treatment.
If you have a Nevada workers’ compensation claim that you want to get re-opened, seek legal counsel by a qualified workers’ compensation attorney to make sure that your application for re-opening is complete and meets all of the requirements.
Herb Santos is a NJA Board Certified Workers’ Compensation Specialist. He is recognized by the National Workers’ Injury Law & Advocacy Group as one of America’s leading attorneys representing injured workers. Herb was also selected as the 2018 Trial Lawyer of the Year in Nevada.
