CHANGES TO WORKERS COMP LAWS
Published on Thursday, August 12, 2021
2021 Legislative Changes to Nevada’s Workers’ Compensation Laws
Pertinent to Southern Nevada Building Trades Unions
By Jason D. Mills, Esq.
Well, it’s that time again! Time to discuss the changes that happened to the Nevada Industrial Insurance Act and Nevada Occupational Disease Act as a result of bills that made it to the Governor’s desk and how those changes may impact the Southern Nevada Building Trades Unions.
First up, AB400. This bill was brought by Assemblyman Steve Yeager to address current scientific understanding associated with “per se” THC levels and the impact they have (or don’t) on impaired driving. Thus, the majority of the AB400 dealt with that issue. However, the work comp law NRS 616C.230 is linked to NRS 484C.110 as to when industrial claims can be denied for the claimant’s use of alcohol and certain named drugs. AB400 has de-coupled NRS 484C.110(3-4) from NRS 61C.230. Now, NRS 616C.230, as it pertains to the listed enumerated drugs, will be found in NRS 616C.230. No need to cross-reference it with NRS 484C.110. The coupling between NRS 616C.230 and NRS 484C.110(1) for the purposes of alcohol remains unchanged. The biggest factor that employers and employees need to be aware of is as it pertains to AB400 is for claims on or after 07/01/2021 “inactive” THC is no longer a basis to issue claim denial. Only “active” THC remains in the statute. And finally, remember, for “active” THC the testing must be by way of a blood test, not urine.
Nevada work comp laws were also dramatically updated via SB289. This bill was brought by Senator Dallas Harris along with support by the Nevada Justice Association. The bill it does the following:
- Completely overhauls the apportionment rules for permanent partial disability (PPD exams);
- Allows physician assistants and advanced nurse practitioners to execute claims for compensation (C4s);
- Allows for electronic C4s;
- If requested, requires insurers/TPAs to send claim determinations by fax or electronic means and failure to maintain proof of service by the insurer/TPA will toll the statute of limitations to appeal from such determinations;
- Attorneys’ liens in work comp claims;
- Cost awards for claimants following successful litigation;
- Automatic forced installments on undisputed amounts of PPD awards;
- Allowing certain issues to remain actionable even after signing the election of method of payment (EoM).
The changes in SB289 are effective on all claims that are open on the day of passage and approval; namely 05/31/2021.
For apportionment, the rule is now that the doctors cannot apportion (i.e. reduce) any claim impairment award unless: 1) there is a prior rating for the same body part, or 2) there are medical records that pre-date the industrial injury and the rating doctor states to a reasonable degree of medical/chiropractic certainty that immediately before the industrial accident the claimant would have had a pre-existing ratable impairment under the current AMA Guides. Only one other scenario is apportionment allowed; and that is if there is physical evidence of a prior surgery to the same body part, prior to the industrial injury, but no medical documentation pre-dates the industrial accident, then a rating doctor may still apportion.
Thus, NAC 616C.490 (the regulation) has been completely obviated by this statutory change. No more 50%, 75%, 90% apportionment that has been happening the last several years. Note that the old apportionment statutes found at NRS 616C.490(10-11) were deleted from Nevada law and replaced entirely with the new apportionment rules set forth above. Finally, the reliance by insurers to get rating doctors to use dictum from Yturbide v. City of Reno, 135 Nev. 113, 116-117 (2019) is completely inapplicable now as the language relied upon in that dictum has been completely removed from existing statute.
Advanced registered nurse practitioners and physician assistants are now authorized to initiate an industrial claim and thus their signature on C4s is viable. However, for ongoing claim treatment, statute still requires a M.D., D.O., or D.C., to perform industrial care. Additionally, C4s may now be in an electronic format rather than a signed “wet” copy as was previously required. Note that if an electronic C4 is used by a facility, the claimant must be given a hard copy or electronic copy of the fully executed C4 upon his/her discharge.
To combat an ever-growing problem of previously unseen insurer determinations showing up in evidence at the hearing and appeals office proceedings, the law now allows claimants or their counsel to demand all subsequent determinations (no matter what the determination is regarding) to be served by fax or “…other electronic transmission the proof of sending and receipt of which is readily verifiable…”. Note this isn’t just a routine generic email. Indeed, it is the insurer’s burden to prove, not the claimant’s to disprove that service was effectuated in such a manner if demand was made to the insurer. The best part of this statutory change is if the insurer cannot prove successful sending and receipt, then the timeframe to appeal the determination is tolled.
Attorney liens are now authorized by NRS 616C.205 specifically following the requirements of NRS 18.015. By incorporating NRS 18.015 the existing case law and requirements for properly perfecting liens is well known and established in Nevada case law.
It is noteworthy that costs can now be recovered by the claimant on industrial claims. Specifically, those costs incurred over issues that were litigated and where the claimant prevailed. Essentially, the list of recoverable costs mirrors (but is not identical to) those found in NRS 18.005. The procedure requires that within 15 calendar days after the appeals officer, district court, Court of Appeals or Supreme Court rules in favor of the claimant on the merits of the contested issue(s), the claimant shall serve upon the insurer and employer a memorandum of costs that is verified under oath. The insurer shall thereafter have 15 days to issue a determination regarding the costs and specifically state in detail the costs allowed and disallowed along with specific reasons for any such disallowance. Costs that are allowed by the insurer must be paid along with the determination letter by the insurer. Finally, any aggrieved party may appeal that determination directly to the appeals officer for adjudication.
In situations where there is an undisputed portion of a PPD award, most insurers currently initiate so-called “forced” installments on those portions of the PPD awards. However, a growing minority of insurers refused to initiate such payments without a claimant making a written election for installment payments under NAC 616C.103 and NAC 616C.505. The change by SB289 now unequivocally requires an insurer to initiate such payments regardless of whether a claimant makes any formal election to do so.
Lastly, SB289 dramatically changes the impact that signing an election of method of payment (EoM) has on a claim. Prior to SB289, when a claimant signed the EoM s/he extinguished all issues of law and fact except the right to reopen the claim, to obtain vocational rehabilitation benefits and to any claims for a benefit penalty under NRS 616D.120. That part of the signing the EoM remains unchanged. However, now any issue except for “scope of claim” and claimant’s “stable and ratable status” and “average monthly wage” are not extinguished by signing the EoM provided the specific issue is already a “…contested matter which is pending…” at the time of the EoM is made. In practice, be sure that any issue you wish to keep alive after executing the EoM, a file stamped copy of the matter exists prior to the EoM being signed and sent into the insurer. The classic problem this change sought to fix was the outstanding temporary total disability (TTD) benefits being waived by signing the EoM or the out-of-pocket medical expenses that were in dispute. Now, these issues (and all other issues except those listed above) may continue to be litigated provided they were already at issue and in pending litigation status (i.e. file stamped) prior to the EoM election.
Jason Mills has been practicing workers’ compensation law since 2000. He is the Strategic Development Partner at the GGRM Law Firm. Jason is on the NJA Executive Committee, Board of Governors and is the Co-chair of the NJA Workers’ Compensation Legislative Committee. Jason also serves as a trustee for the political action committee, Citizens for Justice. He is also a co-founding member of the NJA/State Bar of Nevada Board of Workers’ Compensation Legal Specialization. Jason has successfully litigated workers’ compensation claims at all levels from the Nevada Hearings Office to the Nevada Supreme Court.