Workers’ Compensation Practice Before The Nevada Department Of Administration
by David R. Fischer

In Nevada, an employee who has an accident causing bodily injury, which arises out of and occurred in the course of his/her employment, is entitled to all necessary medical treatment for the job-incurred injury. In addition, an injured employee is entitled to temporary total disability (TTD) benefits if the treating physician takes the injured employee completely off of work. (The employee must be taken off of work for a period of five or more consecutive days or five cumulative days in a twenty day period). TTD provides the employee with 66 2/3 percent of the gross average monthly wage he or she was earning on the date of injury (the maximum income allowed for 2008 is 66 2/3 of $4862.68). Also, TTD eligibility applies if an employee has work restrictions which the pre-accident employer is unable to accommodate. If the employer can accommodate work restrictions, but the employee’s net wage is less than 66 2/3 of his or her pre-accident average monthly wage, the employee is eligible for temporary partial disability benefits. Once the injured employee has completed medical treatment and is determined by a rating physician or chiropractor to have incurred a permanent disability, the employee may be entitled to a lump sum payment, monthly installment payments or a combination of the two to compensate for the disability. Finally, the employee may be entitled to vocational rehabilitation benefits if the employee has permanent restrictions on his or her ability to work and the pre-accident employer is unable to accommodate the restrictions on a permanent basis by offering a permanent light duty position. The process of obtaining workers’ compensation benefits in Nevada is a technical process. One must ensure that the proper forms are timely submitted to the various parties involved (employer, employer’s insurance, third-party administrator, treating physicians, attorneys, etc.). Some deadlines must be met within days of the injury. Also, it is important to understand the statutes and administrative codes involved. To miss deadlines or to not understand the application of the law to one’s particular situation could mean the loss of significant benefit entitlements. In Nevada, workers’ compensation disputes must be submitted for decision to an administrative law judge, or also referred to as the Hearing Officer. The Hearing Officer is an administrative law judge whose jurisdiction is limited to Nevada workers’ compensation matters only.

The appeals process
The appeals process typically begins upon the receipt of a “determination letter” from the workers’ compensation insurer or its third-party administrator (TPA). An example of a determination letter is a claim denial letter. In other words, the insurer/TPA has decided that, pursuant to their interpretation of Nevada workers’ compensation law, one does not qualify for workers compensation benefits and that based on this, the insurer/TPA has denied the claim for benefits. In its determination letter, the insurer/TPA is required to inform the injured worker that the matter must be appealed within 70 days from the date of the determination letter to the Department of Administration. The filing of the appeal within 70 days is critical, as a failure to file a timely appeal is likely to result in a loss of potential benefits to the injured worker. Typically, the determination letter will include the necessary form to file an appeal (Form D-12a) A determination letter is appealed by completing a D-12a form and including a simple statement briefly explaining the grounds for the appeal (e.g. claim denial) and by attaching the determination letter at issue thereto (Note: This form can be obtained at http://dirweb.state.nv.us/wcs/wcsform.htm). The Hearing Office for the Department of Administration will schedule a hearing within 30 days of receipt of the request for a hearing.

The initial hearing
The Hearing Officer hearing is a relatively informal process, typically intended to last no more than a few minutes. An injured worker is not required to be represented by counsel at this stage. The injured worker, or Claimant, has the burden of proof and thus will be allowed to state his or her case first; the defendant, which also need not be represented by legal counsel, follows. Either side can produce documentary evidence for the Hearing Officer to consider when making a decision as well as a brief legal memorandum of the applicable law and facts. The claimant is given the final word. The Hearing Officer then has 15 days to render a decision. The Hearing Officer’s decision can be appealed by either side within 30 days from the date of the Hearing Officer’s decision and Order. The form required for the appeal will be attached to the Hearing Officer decision and order.

The appeals hearing
The appeals hearing is a more formal and court-like setting. The Appeals Officer hearing requires the respective parties to be represented by legal counsel. The Appellant may file a Motion for Stay of the Hearing Officer’s decision and order with the Appeals Officer and the Appeals Officer then has 30 days to decide the merits of the motion. If it is not granted, the Hearing Officer Decision and order must be complied with within ten days of the denied Motion for Stay. In addition, where appellant files a Motion for Stay, the Respondent has ten days to file an opposition to the Motion for Stay with the Appeals Officer. The Appeals Officer hearing allows for the direct and cross-examination of witnesses, but the rules of evidence are very relaxed. Any matter that is relevant to the dispute will be allowed in, including hearsay evidence. The only objection that may be sustained is one which is based on relevancy. There is very little procedure that must be complied with. Essentially, the Appellant is required to submit its documentary evidence, a statement of the issues to be raised, a list of any witnesses (with a brief summary of their proposed testimony and whether they will testify telephonically), and the estimated length of time for the hearing 14 days before the date set for the hearing and the respondent must submit the same seven days prior to the date of hearing. Also, parties may submit a legal brief regarding the relevant law and facts, but this is not required. If any party wishes to propound any discovery upon the other side they must request this by motion from the Appeals Officer within 30 days of the scheduled Appeals Officer hearing. It is important to note that it is not unusual for parties to submit additional evidence on the day of the hearing directly to the Appeals Officer and while one can object, it is the Appeals Officer’s prerogative to allow untimely evidence in. The appeals hearing essentially involves making an opening statement (usually waived), which is followed by direct and cross examination of witnesses and then a brief closing statement. The Appeals Officer is required to render a decision within 30 days of the appeals hearing.

Petition for judicial review
The Appeals Officer’s decision can be appealed by filing a Petition for Judicial Review with the district court within thirty days of service of the Appeals Officer’s decision and order. The likelihood of getting an Appeals Officer’s decision reversed at this level is difficult as the appellant must establish that an Appeals Officer’s decision was based on some type of gross error of law or fact. Also, the appellant can file a Motion for Stay of the Appeals Officer’s decision within 30 days the order was entered. Ultimately, most workers’ compensation matters do not reach the district court level, and thus, an understanding of the administrative appeals process is what is most critical to success for an attorney who practices Nevada workers’ compensation law.

David R. Fischer is an attorney with the law firm of Shook & Stone, Chtd. He represents Nevada injured workers in workers’ compensation matters. He is a 2005 graduate of The University of Tulsa, College of Law, and a 2006 graduate of Pepperdine University, Straus Institute for Dispute Resolution. Prior to law school Mr. Fischer served in the U.S. Navy and Army National Guard. 

How to Be A Public Access TV Star: a.k.a. Tips on Being a Successful Administrative Law Attorney
by Jennifer Roberts and Jennifer DiMarzio 

Many of our litigator friends have no idea what we do as administrative attorneys. In fact, they may even think that we are not “real” attorneys because we don’t spend all of our time taking depositions or appearing in court. And Hollywood certainly doesn’t make any hip television shows about us (picture William Shatner applying for a zoning variance before the Henderson City Council). However, we do appear on public access television on a regular basis! In fact, we think “admin” is a pretty interesting area of practice and thought it would be helpful for us to share a few of the lessons we have learned as practitioners in the area.

What is the practice of administrative law?
But first, what exactly is the practice of administrative law? Well, according to Black’s Law Dictionary, “administrative law” is “the law governing the organization and operation of administrative agencies . . . and the relations of administrative agencies with the legislature, the executive, the judiciary, and the public. . . .” If that doesn’t clear it up, how about this: In a nutshell, the practice of administrative law generally entails representing clients before national, state and local administrative agencies on issues that are under the jurisdiction and control of those agencies. For example, an administrative attorney in Nevada is likely to represent gaming companies before the Nevada Gaming Control Board and Nevada Gaming Commission in several different situations—such as when the company is applying for a gaming license, when the company wants to purchase or sell gaming properties, when the company wants to introduce new games, when disciplinary action is imposed, when the company (if a publicly owned company) wants to offer new shares for sale on the stock market, and more. That same attorney may also represent the gaming company before local zoning and business licensing boards and commissions, as well as before other state and national agencies.

Tip #1 – The three “C’s”: Cooperation, Communication, and Courtesy
Administrative law is generally not an adversarial field of law. As an administrative attorney, it is often your job to convince an agency to grant your clients something they want—a license, an entitlement, an approval, etc. So be cooperative. Communicate with the agency and provide them the information they need. Do be persistent. Do not be quick to accept “no” for an answer. But also remember to always be courteous. Do not attack agency staffers or commission members as if they are opposing counsel. Make sure to thank them for taking the time to advise you on how you can help your client. You will find that sticking to the three “C’s” will always serve you and your client well.

Tip #2 – Understand the process
When researching the procedure for an administrative application, appeal or a hearing, look to the law first. Many agencies have statutes or rules that lay out the timing and procedure for these processes. If not, the Nevada Administrative Procedure Act (Nevada Revised Statutes (“NRS”) Chapter 223B), provides default procedures for agencies that have not promulgated their own rules. Don’t forget to check the agency’s website to see if they have guidelines posted there (see Tip #6). Finally, always confirm your understanding of the procedure with the agency to ensure you are not giving your clients bad advice or missing a deadline that may not be clear in the rules.

Tip #3 – Remember you are not in a traditional court of law
Perhaps the biggest surprise to our litigator friends is that we actually do quite a lot of work representing clients in hearings before various boards, commissions and even administrative law judges. When it comes to administrative hearings, however, you should know that in most administrative procedures, the rules of evidence do not apply. The standard is generally that any relevant evidence may be admissible. In other words, there is no such thing as hearsay! According to NRS 233B.123, evidence is admissible in contested cases “if it is of a type commonly relied upon by reasonable and prudent persons in the conduct of their affairs” and not otherwise excluded by statute. See also NRS 622A.370(2) (providing that certain regulatory bodies are not bound by rules of evidence). As stated above, be sure to check the laws and regulations applicable to the administrative agency to verify the types of evidence that may be admitted, as well as if pre-hearing briefs should be prepared. Again, you should consult with the agency to get their understanding of the rules. You should also consult the agency’s laws and regulations to determine the procedures and review standard for the appeal of an agency decision.

Tip #4 – Be prepared
Never show up to represent a client at an administrative hearing without communicating with the agency about your case first. This rule will vary by the circumstance and the agency, but most agencies are more than happy to let you know their concerns beforehand. This will give you the opportunity to answer their questions, provide supplemental information, or propose solutions for compromise before the hearing. In fact, sometimes you will find you can resolve an issue without a hearing at all.

Tip #5 – Don’t forget the NAC
When preparing for practice before an administrative agency, you will always want to consult the NRS to determine the laws that govern the area. However, most agencies also implement rules and regulations that can provide further direction. These rules and regulations are generally found in the Nevada Administrative Code (“NAC”). Usually, the chapter in the NAC is the same number chapter in NRS. For example, the laws governing the State Board of Cosmetology are contained in NRS Chapter 644, and the rules and regulations of the cosmetology board are in NAC Chapter 644. Just like the NRS, the NAC is available online through the Nevada Legislature website at http://www.leg.state.nv.us/NAC.

Tip #6 – Understand the agency
In addition to researching the applicable laws and regulations, you should check the agency’s website for guidance. The agency’s website will usually not only contain a link to the relevant NRS and NAC sections, but also will provide the necessary forms that must be completed for certain licenses or approvals. The Frequently Asked Questions sections can be a useful tool when encountering an issue not directly addressed under the laws or regulations of the agency. If the agency has a monthly newsletter or published opinions, these can also be enlightening.

Tip #7 – Let yourself be known
You should serve as the line of communication between your client and the administrative agency. This will allow you to manage the dialogue with the agency and help the client maintain a cooperative position. As your client’s attorney, initiate the contact with the agency and continue to remind the agency of your representation of the client on the matter. This will help ensure that agency staff will contact you when an issue arises pertaining to your client. However, always keep in mind Tip #1, in that you should not assume an adversarial tone in your communications with the agency.

Tip #8 – Maintain your credibility
Serving as the line of communication between your client and the administrative agency will allow you to develop a relationship with the agency. From your first contact with the agency, you will want to consider how your representation today will affect your reputation for future dealings with the agency. You will want to get to know the staff at the agency. This allows you to have contacts when questions about procedures or informal processes come up. You also want to make sure that you are always straightforward with the agency, that you are factually accurate, and that your client can and will live up to any commitments you make on their behalf.

Tip #9 – Don’t forget the locals!
Most attorneys will consult state laws and regulations to determine the types of licenses, permits, approvals, etc., that may be needed in order to conduct business or perform some action. However, there are local laws and ordinances that will frequently apply to your client’s situation as well. For example, if a client asks you to assist them in getting a business license for an auto repair shop, the business license process is governed by the laws and regulations for the Nevada Department of Motor Vehicles. However, most local jurisdictions (e.g., unincorporated Clark County or the City of Las Vegas) will have both zoning and business license ordinances that may impose additional license or permit requirements for the client.

Tip #10 – Set realistic expectations
The last point is actually something that you should do first with every case: Make a realistic assessment of your client’s situation and what you can accomplish for them. If what they want is not likely or possible, you should present your clients with that assessment upfront. Don’t over-promise and under-deliver. You will only do a disservice to your clients and damage your credibility. Also don’t forget that you should set expectations with your clients so they don’t mistake a cooperative attitude (see Tip #1) for weak advocacy. These tips are but a few of the many lessons we have learned—sometimes through painful experience, at other times through the mentorship of our colleagues at the firm. As with any area of legal practice, it takes a lifetime to become an expert, but if you follow these ten rules, you’ll be well on your way.

Jennifer Roberts has been practicing gaming, liquor, and regulatory law at Lionel Sawyer & Collins for five years. She is an adjunct professor for the Introduction to Gaming Law course at the UNLV Boyd School of Law. Prior to becoming an administrative law attorney, Ms. Roberts clerked for the U.S. Tenth Circuit Court of Appeals and Utah Court of Appeals.

Jennifer DiMarzio practices gaming and regulatory law, as well as media/first amendment law, at the law firm of Lionel Sawyer & Collins in Las Vegas, Nevada. Prior to joining the firm, she served as a law clerk with the Federal Communications Commission, National Public Radio, the National Association of Broadcasters, and the NTIA, and externed with Magistrate Judge Alan Kay, in the U.S. District Court for the District of Columbia.

Both Jennifers can be seen on Las Vegas public access television on a regular basis in their appearances before various boards and councils. The authors thank Senator Richard H. Bryan, Robert Faiss and Paul Larsen, partners at Lionel Sawyer & Collins, for their valuable input and guidance relating to this article, as well as to the practice of administrative law in general.