De Facto Denial: The Insurer is not Responding to the Injured Worker

Pursuant to NAC616C.094(1)(a)-(b), within thirty (30) days after receipt of a written request relating to a claim made by an injured employee, an employer, a health care provider, or the attorney or other representative of any of them . . . the insurer, third-party administrator, or organization for managed care shall, in writing, notify the person making the request of its determination concerning the request.

Workers’ compensation law in Nevada still operates via mail with letters going back and forth from the injured worker or their much-needed Attorney, and the insurance company. Every time an Attorney requests something under the claim in writing, the insurer has thirty (30) days to respond in writing approving or denying the request. This letter from the insurance company is called a determination letter and will contain important appeal rights for the injured worker, appeal rights that will expire in a short seventy (70) day period.

What happens if the insurer simply does not respond? How often does this occur? Unfortunately, it happens all too often, delaying the case for often times no good reason. If the insurer does not respond, the non-response operates as a “de facto” denial. However, this silence from the insurer does not provide the injured worker with a definitive answer. The only remedy the injured worker has is to file a notice of appeal and present the issue before the Hearing Officer to get the insurer to respond. However, by the time the injured worker gets into court, it could be forty-five (45) to sixty (60) days later! Hopefully the insurer would have at least responded by that time, but some do not.

The other remedy the injured worker could seek is filing a complaint with the Division of Industrial Relations (“DIR”). See NRS 616D.120. Because the insurer is violating that regulation by not sending a written response, theoretically, the DIR should fine the insurer who doesn’t send a response on time. Id. But, DIR rarely fines insurers for failing to respond to written requests, even if there is a distinct pattern of the same adjuster not responding (or intentionally not doing their job).

Although this seems simplistic, it is not always. Injured workers should seek an experienced Attorney regarding this circumstance. The experienced Attorney will not only be able to give guidance on this process, but also all other laws associated with work injuries.