Assembly Bill No. 326–Committee on Commerce and Labor

February 25, 1999

____________

Referred to Committee on Commerce and Labor

 

SUMMARY—Makes various changes concerning industrial insurance. (BDR 53-105)

FISCAL NOTE: Effect on Local Government: Yes.

Effect on the State or on Industrial Insurance: Yes.

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EXPLANATION – Matter in bolded italics is new; matter between brackets [omitted material] is material to be omitted. Green numbers along left margin indicate location on the printed bill (e.g., 5-15 indicates page 5, line 15).

 

AN ACT relating to industrial insurance; providing a procedure by which an injured employee may participate in the selection of his rating physician or chiropractor; requiring an insurer to reimburse an injured employee for the expense of a second determination of disability under certain circumstances; revising the provisions governing the effect on the availability of compensation of a preexisting condition and of an aggravation of an industrial injury or disease that is not related to employment; revising the provisions governing the determination and provision of compensation for permanent total disability, temporary total disability and permanent partial disability; expanding the maximum length of certain programs of vocational rehabilitation; authorizing vocational rehabilitation services to be provided outside of this state under certain circumstances; authorizing a claimant to bring and maintain a cause of action against an insurer or third-party administrator if the claimant does not accept a benefit penalty; and providing other matters properly relating thereto.

 

THE PEOPLE OF THE STATE OF NEVADA, REPRESENTED IN SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS:

1-1 Section 1. NRS 616A.070 is hereby amended to read as follows:

1-2 616A.070 "Benefit penalty" means an additional amount of money

1-3 that , except as otherwise provided in NRS 616D.120 and section 14 of

1-4 this act, is payable to a claimant if the administrator has determined that a

1-5 violation of any of the provisions of paragraphs (a) to (d), inclusive, of

1-6 subsection 1 of NRS 616D.120 has occurred.

1-7 Sec. 2. NRS 616A.465 is hereby amended to read as follows:

1-8 616A.465 1. Except as otherwise provided in this section, the

1-9 division shall:

1-10 (a) Regulate insurers pursuant to chapters 616A to 617, inclusive, of

1-11 NRS; and

2-1 (b) Investigate insurers regarding compliance with statutes and the

2-2 division’s regulations.

2-3 2. The commissioner is responsible for reviewing rates, investigating

2-4 the solvency of insurers, authorizing private carriers pursuant to chapter

2-5 680A of NRS and certifying:

2-6 (a) Self-insured employers pursuant to NRS 616B.300 to 616B.330,

2-7 inclusive, and 616B.336;

2-8 (b) Associations of self-insured public or private employers pursuant to

2-9 NRS 616B.350 to 616B.446, inclusive; and

2-10 (c) Third-party administrators pursuant to chapter 683A of NRS.

2-11 3. The department of administration is responsible for contested claims

2-12 relating to industrial insurance pursuant to NRS 616C.310 to 616C.385,

2-13 inclusive. The administrator is responsible for administrative appeals

2-14 pursuant to NRS 616B.215.

2-15 4. The Nevada attorney for injured workers is responsible for legal

2-16 representation of claimants pursuant to NRS 616A.435 to 616A.460,

2-17 inclusive, and 616D.120.

2-18 5. The division is responsible for the investigation of complaints. [If]

2-19 Except as otherwise provided in subsection 3 of section 14, if a complaint

2-20 is filed with the division, the administrator shall cause to be conducted an

2-21 investigation which includes a review of relevant records and interviews of

2-22 affected persons. If the administrator determines that a violation may have

2-23 occurred, the administrator shall proceed in accordance with the provisions

2-24 of NRS 616D.120 and 616D.130.

2-25 Sec. 3. Chapter 616C of NRS is hereby amended by adding thereto a

2-26 new section to read as follows:

2-27 1. An injured employee who wishes to participate in the selection of

2-28 the rating physician or chiropractor who will determine the percentage of

2-29 his disabilities pursuant to NRS 616C.490 must notify the insurer of his

2-30 employer within 30 days after that insurer notifies him of his option to

2-31 participate in such selection. The insurer shall, within 10 days after

2-32 receiving such notice from an injured employee, notify the administrator.

2-33 The administrator shall, within 10 days after receiving such notice from

2-34 an insurer, provide to the injured employee and the insurer a list with the

2-35 names of five physicians or chiropractors who are on the list of qualified

2-36 physicians and chiropractors designated by the administrator pursuant to

2-37 NRS 616C.490. The administrator shall select the five names of

2-38 physicians or chiropractors in rotation from the list according to their

2-39 area of specialization and the order in which their names appear on the

2-40 list.

2-41 2. Within 15 days after the administrator deposits in the mail or

2-42 otherwise delivers the list of names of physicians or chiropractors to the

2-43 injured employee and the insurer, the administrator shall hold a

3-1 conference to allow the injured employee and insurer to challenge the

3-2 selection of physicians or chiropractors. If the injured employee or the

3-3 insurer demonstrates good cause why he cannot attend the scheduled

3-4 conference, the administrator may continue the conference once, for not

3-5 more than 7 days. At the conference:

3-6 (a) The injured employee and the insurer are each entitled to exercise

3-7 two peremptory challenges.

3-8 (b) After the injured employee and insurer have exercised their

3-9 challenges, if more than one name remains on the list, the administrator

3-10 shall select the rating physician or chiropractor who will determine the

3-11 extent of the injured employee’s disabilities.

3-12 The insurer shall schedule an appointment with the physician or

3-13 chiropractor selected by the administrator.

3-14 Sec. 4. NRS 616C.100 is hereby amended to read as follows:

3-15 616C.100 1. If an injured employee disagrees with the percentage of

3-16 disability determined by a physician or chiropractor, the injured employee

3-17 may obtain a second determination of the percentage of disability. If the

3-18 employee wishes to obtain such a determination, he must select the next

3-19 physician or chiropractor in rotation from the list of qualified physicians or

3-20 chiropractors maintained by the administrator pursuant to section 3 of this

3-21 act and subsection 2 of NRS 616C.490. If a second determination is

3-22 obtained, the injured employee shall pay for the determination. If the

3-23 physician or chiropractor selected to make the second determination

3-24 finds a higher percentage of disability than the first physician or

3-25 chiropractor, the insurer shall pay to the employee an amount equal to

3-26 the maximum allowable fee established by the administrator pursuant to

3-27 NRS 616C.260 for the type of service performed, or the usual fee of that

3-28 physician or chiropractor for such service, whichever is less.

3-29 2. The results of a second determination made pursuant to subsection 1

3-30 may be offered at any hearing or settlement conference.

3-31 Sec. 5. NRS 616C.175 is hereby amended to read as follows:

3-32 616C.175 1. [An employee is not entitled to compensation pursuant

3-33 to the provisions of chapters 616A to 616D, inclusive, of NRS if:

3-34 (a) He has] The resulting condition of an employee who:

3-35 (a) Has a preexisting condition from a cause or origin that did not arise

3-36 out of or in the course of his current or past employment; and

3-37 (b) [He subsequently] Subsequently sustains an injury by accident

3-38 arising out of and in the course of his employment which aggravates,

3-39 precipitates or accelerates his preexisting condition,

3-40 shall be deemed to be an injury by accident that is compensable pursuant

3-41 to the provisions of chapters 616A to 616D, inclusive, of NRS, unless

3-42 [information from a physician or chiropractor establishes to the satisfaction

3-43 of] the insurer can prove by clear and convincing evidence that the

4-1 [subsequent injury] preexisting condition is the primary cause of the

4-2 resulting condition.

4-3 2. [An employee is not entitled to compensation pursuant to the

4-4 provisions of chapters 616A to 616D, inclusive, of NRS if:

4-5 (a) He sustains] The resulting condition of an employee who:

4-6 (a) Sustains an injury by accident arising out of and in the course of his

4-7 employment; and

4-8 (b) [He subsequently] Subsequently aggravates, precipitates or

4-9 accelerates the injury in a manner that does not arise out of and in the

4-10 course of his employment,

4-11 shall be deemed to be an injury by accident that is compensable pursuant

4-12 to the provisions of chapters 616A to 616D, inclusive, of NRS, unless the

4-13 insurer can prove by clear and convincing evidence that the injury

4-14 described in paragraph [(a)] (b) is the primary cause of the resulting

4-15 condition.

4-16 Sec. 6. NRS 616C.330 is hereby amended to read as follows:

4-17 616C.330 1. The hearing officer shall:

4-18 (a) Within 5 days after receiving a request for a hearing, set the hearing

4-19 for a date and time within 30 days after his receipt of the request;

4-20 (b) Give notice by mail or by personal service to all interested parties to

4-21 the hearing at least 15 days before the date and time scheduled; and

4-22 (c) Conduct hearings expeditiously and informally.

4-23 2. The notice must include a statement that the injured employee may

4-24 be represented by a private attorney or seek assistance and advice from the

4-25 Nevada attorney for injured workers.

4-26 3. If necessary to resolve a medical question concerning an injured

4-27 employee’s condition, the hearing officer may refer the employee to a

4-28 physician or chiropractor chosen by the hearing officer. If the medical

4-29 question concerns the rating of a permanent disability, the hearing officer

4-30 may refer the employee to a rating physician or chiropractor. The rating

4-31 physician or chiropractor must be selected in rotation from the list of

4-32 qualified physicians and chiropractors maintained by the administrator

4-33 pursuant to section 3 of this act and subsection 2 of NRS 616C.490, unless

4-34 the insurer and injured employee otherwise agree to a rating physician or

4-35 chiropractor. The insurer shall pay the costs of any medical examination

4-36 requested by the hearing officer.

4-37 4. The hearing officer may allow or forbid the presence of a court

4-38 reporter and the use of a tape recorder in a hearing.

4-39 5. The hearing officer shall render his decision within 15 days after:

4-40 (a) The hearing; or

4-41 (b) He receives a copy of the report from the medical examination he

4-42 requested.

5-1 6. The hearing officer shall render his decision in the most efficient

5-2 format developed by the chief of the hearings division of the department of

5-3 administration.

5-4 7. The hearing officer shall give notice of his decision to each party by

5-5 mail. He shall include with the notice of his decision the necessary forms

5-6 for appealing from the decision.

5-7 8. Except as otherwise provided in NRS 616C.380, the decision of the

5-8 hearing officer is not stayed if an appeal from that decision is taken unless

5-9 an application for a stay is submitted by a party. If such an application is

5-10 submitted, the decision is automatically stayed until a determination is

5-11 made on the application. A determination on the application must be made

5-12 within 30 days after the filing of the application. If, after reviewing the

5-13 application, a stay is not granted by the hearing officer or an appeals

5-14 officer, the decision must be complied with within 10 days after the refusal

5-15 to grant a stay.

5-16 Sec. 7. NRS 616C.360 is hereby amended to read as follows:

5-17 616C.360 1. A stenographic or electronic record must be kept of the

5-18 hearing before the appeals officer and the rules of evidence applicable to

5-19 contested cases under chapter 233B of NRS apply to the hearing.

5-20 2. The appeals officer must hear any matter raised before him on its

5-21 merits, including new evidence bearing on the matter.

5-22 3. If necessary to resolve a medical question concerning an injured

5-23 employee’s condition, the appeals officer may refer the employee to a

5-24 physician or chiropractor chosen by the appeals officer. If the medical

5-25 question concerns the rating of a permanent disability, the appeals officer

5-26 may refer the employee to a rating physician or chiropractor. The rating

5-27 physician or chiropractor must be selected in rotation from the list of

5-28 qualified physicians or chiropractors maintained by the administrator

5-29 pursuant to section 3 of this act and subsection 2 of NRS 616C.490, unless

5-30 the insurer and the injured employee otherwise agree to a rating physician

5-31 or chiropractor. The insurer shall pay the costs of any examination

5-32 requested by the appeals officer.

5-33 4. Any party to the appeal or the appeals officer may order a transcript

5-34 of the record of the hearing at any time before the seventh day after the

5-35 hearing. The transcript must be filed within 30 days after the date of the

5-36 order unless the appeals officer otherwise orders.

5-37 5. The appeals officer shall render his decision:

5-38 (a) If a transcript is ordered within 7 days after the hearing, within 30

5-39 days after the transcript is filed; or

5-40 (b) If a transcript has not been ordered, within 30 days after the date of

5-41 the hearing.

6-1 6. The appeals officer may affirm, modify or reverse any decision

6-2 made by the hearing officer and issue any necessary and proper order to

6-3 give effect to his decision.

6-4 Sec. 8. NRS 616C.440 is hereby amended to read as follows:

6-5 616C.440 1. Except as otherwise provided in this section and NRS

6-6 616C.175, every employee in the employ of an employer, within the

6-7 provisions of chapters 616A to 616D, inclusive, of NRS, who is injured by

6-8 accident arising out of and in the course of employment, or his dependents

6-9 as defined in chapters 616A to 616D, inclusive, of NRS, is entitled to

6-10 receive the following compensation for permanent total disability:

6-11 (a) In cases of total disability adjudged to be permanent, compensation

6-12 per month of 66 2/3 percent of the average monthly wage.

6-13 (b) If there is a previous disability, as the loss of one eye, one hand, one

6-14 foot or any other previous permanent disability, the percentage of

6-15 disability for a subsequent injury must be determined by computing the

6-16 percentage of the entire disability and deducting therefrom the percentage

6-17 of the previous disability as it existed at the time of the subsequent injury,

6-18 but such a deduction for a previous award for permanent partial disability

6-19 must be made in a reasonable manner and must not be more than the total

6-20 amount which was paid for the previous award for permanent partial

6-21 disability.

6-22 (c) If the character of the injury is such as to render the employee so

6-23 physically helpless as to require the service of a constant attendant, an

6-24 additional allowance may be made so long as such requirements continue,

6-25 but the allowance may not be made while the employee is receiving

6-26 benefits for care in a hospital or facility for intermediate care pursuant to

6-27 the provisions of NRS [616C.255 and] 616C.265.

6-28 2. Except as otherwise provided in NRS 616B.185 and 616B.186, an

6-29 injured employee or his dependents are not entitled to accrue or be paid

6-30 any benefits for a permanent total disability during the time the injured

6-31 employee is incarcerated. The injured employee or his dependents are

6-32 entitled to receive such benefits when the injured employee is released

6-33 from incarceration if he is certified as permanently totally disabled by a

6-34 physician or chiropractor.

6-35 3. An employee is entitled to receive compensation for a permanent

6-36 total disability only so long as the permanent total disability continues to

6-37 exist. The insurer has the burden of proving that the permanent total

6-38 disability no longer exists.

6-39 4. If an employee who has received compensation in a lump sum for a

6-40 permanent partial disability pursuant to NRS 616C.495 is subsequently

6-41 determined to be permanently and totally disabled, the compensation for

6-42 the permanent total disability must be reduced as follows:

7-1 (a) If the employee has not received a minimum lump sum, the

7-2 [employee’s] insurer of the employee’s employer shall deduct from the

7-3 compensation for the permanent total disability an amount equal to the

7-4 monthly installment rate for awards for permanent partial disability until

7-5 the [employee reaches the age upon which his disability was calculated;]

7-6 insurer has deducted an amount that equals the amount it has already

7-7 paid out as a lump sum; or

7-8 (b) If the employee received a minimum lump sum, the [employee’s]

7-9 insurer of the employee’s employer shall deduct from the compensation for

7-10 the permanent total disability an amount of not more than 10 percent of the

7-11 rate of compensation for a permanent total disability until the lump sum is

7-12 recovered.

7-13 The provisions of this subsection are retroactive for all claims for

7-14 compensation for a permanent total disability remaining open on [July 1,

7-15 1995.] October 1, 1999.

7-16 Sec. 9. NRS 616C.475 is hereby amended to read as follows:

7-17 616C.475 1. Except as otherwise provided in this section, NRS

7-18 616C.175 and 616C.390, every employee in the employ of an employer,

7-19 within the provisions of chapters 616A to 616D, inclusive, of NRS, who is

7-20 injured by accident arising out of and in the course of employment, or his

7-21 dependents, is entitled to receive for the period of temporary total

7-22 disability, 66 2/3 percent of the average monthly wage.

7-23 2. Except as otherwise provided in NRS 616B.185 and 616B.186, an

7-24 injured employee or his dependents are not entitled to accrue or be paid

7-25 any benefits for a temporary total disability during the time the injured

7-26 employee is incarcerated. The injured employee or his dependents are

7-27 entitled to receive such benefits when the injured employee is released

7-28 from incarceration if he is certified as temporarily totally disabled by a

7-29 physician or chiropractor.

7-30 3. If a claim for the period of temporary total disability is allowed, the

7-31 first payment pursuant to this section must be issued by the insurer within

7-32 14 working days after receipt of the initial certification of disability and

7-33 regularly thereafter.

7-34 4. Any increase in compensation and benefits effected by the

7-35 amendment of subsection 1 is not retroactive.

7-36 5. Payments for a temporary total disability must cease when:

7-37 (a) A physician or chiropractor determines that the employee is

7-38 physically capable of any gainful employment for which the employee is

7-39 suited, after giving consideration to the employee’s education, training and

7-40 experience;

7-41 (b) The employer offers the employee light-duty employment or

7-42 employment that is modified according to the limitations or restrictions

7-43 imposed by a physician or chiropractor pursuant to subsection 7; or

8-1 (c) Except as otherwise provided in NRS 616B.185 and 616B.186, the

8-2 employee is incarcerated.

8-3 6. Each insurer may, with each check that it issues to an injured

8-4 employee for a temporary total disability, include a form approved by the

8-5 division for the injured employee to request continued compensation for

8-6 the temporary total disability.

8-7 7. A certification of disability issued by a physician or chiropractor

8-8 must:

8-9 (a) Include the period of disability and a description of any physical

8-10 limitations or restrictions imposed upon the work of the employee;

8-11 (b) Specify whether the limitations or restrictions are permanent or

8-12 temporary; and

8-13 (c) Be signed by the treating physician or chiropractor authorized

8-14 pursuant to NRS 616B.515 or 616B.527.

8-15 8. If certification of disability specifies that the physical limitations or

8-16 restrictions are temporary, the employer of the employee at the time of his

8-17 accident is not required to comply with NRS 616C.545 to 616C.575,

8-18 inclusive, and 616C.590 or the regulations adopted by the division

8-19 governing vocational rehabilitation services if the employer offers the

8-20 employee a position that [is] :

8-21 (a) Is substantially similar to the employee’s position at the time of his

8-22 injury in relation to the location of the employment [,] and the hours he is

8-23 required to work ; and [the salary he will be paid.]

8-24 (b) Provides a gross wage that is equal to or greater than the gross

8-25 wage the employee was earning at the time of his injury.

8-26 Sec. 10. NRS 616C.490 is hereby amended to read as follows:

8-27 616C.490 1. Except as otherwise provided in NRS 616C.175, every

8-28 employee, in the employ of an employer within the provisions of chapters

8-29 616A to 616D, inclusive, of NRS, who is injured by an accident arising out

8-30 of and in the course of employment is entitled to receive the compensation

8-31 provided for permanent partial disability. As used in this section,

8-32 "disability" and "impairment of the whole man" are equivalent terms.

8-33 2. Within 30 days after receiving from a physician or chiropractor a

8-34 report indicating that the injured employee may have suffered a permanent

8-35 disability and is stable and ratable, the insurer shall provide the injured

8-36 employee with written notification that he may participate, pursuant to

8-37 the provisions of section 3 of this act, in the selection of a rating

8-38 physician or chiropractor who will determine the percentage of the

8-39 injured employee’s disability. Unless the injured employee notifies the

8-40 insurer that he will participate in the selection of the rating physician or

8-41 chiropractor within 30 days after receiving the written notification that

8-42 the employee may participate, the insurer shall schedule an appointment

8-43 with a rating physician or chiropractor . [to determine the extent of the

9-1 employee’s disability.] The insurer shall select [a] the physician or

9-2 chiropractor from a group of rating physicians and chiropractors

9-3 designated by the administrator, to determine the percentage of disability

9-4 in accordance with the American Medical Association’s Guides to the

9-5 Evaluation of Permanent Impairment as adopted and supplemented by the

9-6 division pursuant to NRS 616C.110. Rating physicians and chiropractors

9-7 must be selected in rotation from the list of qualified physicians and

9-8 chiropractors designated by the administrator, according to their area of

9-9 specialization and the order in which their names appear on the list.

9-10 3. At the request of the insurer, the injured employee shall, before an

9-11 evaluation by a rating physician or chiropractor is performed, notify the

9-12 insurer of:

9-13 (a) Any previous evaluations performed to determine the extent of any

9-14 of the employee’s disabilities; and

9-15 (b) Any previous injury, disease or condition sustained by the employee

9-16 which is relevant to the evaluation performed pursuant to this section.

9-17 The notice must be on a form approved by the administrator and provided

9-18 to the injured employee by the insurer at the time of the insurer’s request.

9-19 4. Unless the regulations adopted pursuant to NRS 616C.110 provide

9-20 otherwise, a rating evaluation must include an evaluation of the loss of

9-21 motion, sensation and strength of an injured employee if the injury is of a

9-22 type that might have caused such a loss. No factors other than the degree of

9-23 physical impairment of the whole man may be considered in calculating

9-24 the entitlement to compensation for a permanent partial disability. A rating

9-25 evaluation of the spinal region must determine the percentage of

9-26 disability as it existed before any surgical procedures were performed on

9-27 the spinal region, unless the physician or chiropractor determines that

9-28 the injured employee experienced major complications from the surgical

9-29 procedure. If the physician or chiropractor determines that an injured

9-30 employee experienced major complications from a surgical procedure

9-31 performed on the spinal region, he shall include the effect of the

9-32 complications when determining the percentage of disability of that

9-33 injured employee.

9-34 5. The rating physician or chiropractor shall provide the insurer with

9-35 his evaluation of the injured employee. After receiving the evaluation, the

9-36 insurer shall, within 14 days, provide the employee with a copy of the

9-37 evaluation and notify the employee:

9-38 (a) Of the compensation to which he is entitled pursuant to this section;

9-39 or

9-40 (b) That he is not entitled to benefits for permanent partial disability.

9-41 6. Each 1 percent of impairment of the whole man must be

9-42 compensated by a monthly payment:

10-1 (a) Of 0.5 percent of the claimant’s average monthly wage for injuries

10-2 sustained before July 1, 1981;

10-3 (b) Of 0.6 percent of the claimant’s average monthly wage for injuries

10-4 sustained on or after July 1, 1981, and before June 18, 1993; [and]

10-5 (c) Of 0.54 percent of the claimant’s average monthly wage for injuries

10-6 sustained on or after June 18, 1993 [.] , and before October 1, 1999; and

10-7 (d) Of 0.6 percent of the claimant’s average monthly wage for injuries

10-8 sustained on or after October 1, 1999.

10-9 Compensation must commence on the date of the injury or the day

10-10 following the termination of temporary disability compensation, if any,

10-11 whichever is later, and must continue on a monthly basis for 5 years or

10-12 until the claimant is 70 years of age, whichever is later.

10-13 7. Compensation benefits may be paid annually to claimants who will

10-14 be receiving less than $100 a month.

10-15 8. Where there is a previous disability, as the loss of one eye, one

10-16 hand, one foot, or any other previous permanent disability, the percentage

10-17 of disability for a subsequent injury must be determined by computing the

10-18 percentage of the entire disability and deducting therefrom the percentage

10-19 of the previous disability as it existed at the time of the subsequent injury.

10-20 9. The division may adopt schedules for rating permanent disabilities

10-21 resulting from injuries sustained before July 1, 1973, and reasonable

10-22 regulations to carry out the provisions of this section.

10-23 10. The increase in compensation and benefits effected by the

10-24 amendment of this section is not retroactive for accidents which occurred

10-25 before July 1, 1973.

10-26 11. This section does not entitle any person to double payments for the

10-27 death of an employee and a continuation of payments for a permanent

10-28 partial disability, or to a greater sum in the aggregate than if the injury had

10-29 been fatal.

10-30 Sec. 11. NRS 616C.555 is hereby amended to read as follows:

10-31 616C.555 1. A vocational rehabilitation counselor shall develop a

10-32 plan for a program of vocational rehabilitation for each injured employee

10-33 who is eligible for vocational rehabilitation services pursuant to NRS

10-34 616C.590. The counselor shall work with the insurer and the injured

10-35 employee to develop a program that is compatible with the injured

10-36 employee’s age, sex and physical condition.

10-37 2. If the counselor determined in the written assessment developed

10-38 pursuant to NRS 616C.550 that the injured employee has existing

10-39 marketable skills, the plan must consist of job placement assistance only.

10-40 When practicable, the goal of job placement assistance must be to aid the

10-41 employee in finding a position which pays a gross wage that is equal to or

10-42 greater than 80 percent of the gross wage that he was earning at the time of

10-43 his injury. An injured employee must not receive job placement assistance

11-1 for more than 90 days after the date on which he was notified that he is

11-2 eligible only for job placement assistance because:

11-3 (a) He was physically capable of returning to work; or

11-4 (b) It was determined that he had existing marketable skills.

11-5 3. If the counselor determined in the written assessment developed

11-6 pursuant to NRS 616C.550 that the injured employee does not have

11-7 existing marketable skills, the plan must consist of a program which trains

11-8 or educates the injured employee and provides job placement assistance.

11-9 Except as otherwise provided in NRS 616C.560, such a program must not

11-10 exceed [:

11-11 (a) If the injured employee has incurred a permanent physical

11-12 impairment of less than 6 percent, 6 months.

11-13 (b) If the injured employee has incurred a permanent physical

11-14 impairment of 6 percent or more, but less than 11 percent, 9 months.

11-15 (c) If the injured employee has incurred a permanent physical

11-16 impairment of 11 percent or more,] 1 year.

11-17 [The percentage of the injured employee’s permanent physical impairment

11-18 must be determined pursuant to NRS 616C.490.]

11-19 4. A plan for a program of vocational rehabilitation must comply with

11-20 the requirements set forth in NRS 616C.585.

11-21 5. A program of vocational rehabilitation must not commence before

11-22 the treating physician or chiropractor, or an examining physician or

11-23 chiropractor determines that the injured employee is capable of safely

11-24 participating in the program.

11-25 6. If, based upon the opinion of a treating or an examining physician

11-26 or chiropractor, the counselor determines that an injured employee is not

11-27 eligible for vocational rehabilitation services, the counselor shall provide a

11-28 copy of the opinion to the injured employee, the injured employee’s

11-29 employer and the insurer.

11-30 7. A plan for a program of vocational rehabilitation must be signed by

11-31 a certified vocational rehabilitation counselor.

11-32 8. If an initial program of vocational rehabilitation pursuant to this

11-33 section is unsuccessful, an injured employee may submit a written request

11-34 for the development of a second program of vocational rehabilitation

11-35 which relates to the same injury. An insurer shall authorize a second

11-36 program for an injured employee upon good cause shown.

11-37 9. If a second program of vocational rehabilitation pursuant to

11-38 subsection 8 is unsuccessful, an injured employee may submit a written

11-39 request for the development of a third program of vocational rehabilitation

11-40 which relates to the same injury. The insurer, with the approval of the

11-41 employer who was the injured employee’s employer at the time of his

11-42 injury, may authorize a third program for the injured employee. If such an

11-43 employer has terminated operations, his approval is not required for

12-1 authorization of a third program. An insurer’s determination to authorize

12-2 or deny a third program of vocational rehabilitation may not be appealed.

12-3 10. The division shall adopt regulations to carry out the provisions of

12-4 this section. The regulations must specify the contents of a plan for a

12-5 program of vocational rehabilitation.

12-6 Sec. 12. NRS 616C.560 is hereby amended to read as follows:

12-7 616C.560 1. A program for vocational rehabilitation developed

12-8 pursuant to subsection 3 of NRS 616C.555 may be extended:

12-9 (a) Without condition or limitation, by the insurer at his sole discretion;

12-10 or

12-11 (b) In accordance with this section if:

12-12 (1) The injured employee makes a written request to extend the

12-13 program within 30 days after he receives written notification that he is

12-14 eligible for vocational rehabilitation services; and

12-15 (2) There are exceptional circumstances which make it unlikely that

12-16 the injured employee will obtain suitable gainful employment as a result of

12-17 vocational rehabilitation which is limited to the period for which he is

12-18 eligible.

12-19 An insurer’s determination to grant or deny an extension pursuant to

12-20 paragraph (a) may not be appealed.

12-21 2. If an injured employee has incurred a permanent physical

12-22 impairment of less than 11 percent:

12-23 (a) The total length of the program, including any extension, must not

12-24 exceed [1 year.] 2 years.

12-25 (b) "Exceptional circumstances" shall be deemed to exist for the

12-26 purposes of paragraph (b) of subsection 1, if:

12-27 (1) The injured employee lacks work experience, training, education

12-28 or other transferable skills for an occupation which he is physically capable

12-29 of performing; or

12-30 (2) Severe physical restrictions as a result of the industrial injury

12-31 have been imposed by a physician which significantly limit the employee’s

12-32 occupational opportunities.

12-33 3. If an injured employee has incurred a permanent physical

12-34 impairment of 11 percent or more:

12-35 (a) The total length of the program, including any extension, must not

12-36 exceed [2] 3 years.

12-37 (b) "Exceptional circumstances" shall be deemed to exist for the

12-38 purposes of paragraph (b) of subsection 1, if the injured employee has

12-39 suffered:

12-40 (1) The total and permanent loss of sight of both eyes;

12-41 (2) The loss by separation of a leg at or above the knee;

12-42 (3) The loss by separation of a hand at or above the wrist;

13-1 (4) An injury to the head or spine which results in permanent and

13-2 complete paralysis of both legs, both arms or a leg and an arm;

13-3 (5) An injury to the head which results in a severe cognitive

13-4 functional impairment which may be established by a nationally

13-5 recognized form of objective psychological testing;

13-6 (6) The loss by separation of an arm at or above the elbow and the

13-7 loss by separation of a leg at or above the knee;

13-8 (7) An injury consisting of second or third degree burns on 50

13-9 percent or more of the body, both hands or the face;

13-10 (8) A total bilateral loss of hearing;

13-11 (9) The total loss or significant and permanent impairment of speech;

13-12 or

13-13 (10) A permanent physical impairment of 50 percent or more

13-14 determined pursuant to NRS 616C.490, if the severity of the impairment

13-15 limits the injured employee’s gainful employment to vocations that are

13-16 primarily intellectual and require a longer program of education.

13-17 4. The insurer shall deliver a copy of its decision granting or denying

13-18 an extension to the injured employee and the employer. Except as

13-19 otherwise provided in this section, the decision shall be deemed to be a

13-20 final determination of the insurer for the purposes of NRS 616C.315.

13-21 Sec. 13. NRS 616C.580 is hereby amended to read as follows:

13-22 616C.580 1. [Vocational] Except as otherwise provided in this

13-23 section, vocational rehabilitation services must not be provided outside of

13-24 this state. If an injured employee lives within 50 miles from any border of

13-25 this state on the date of injury, he may receive vocational rehabilitation

13-26 services at a location within 50 miles from any border of this state and

13-27 within 50 miles from his residence if such services are available at such

13-28 location.

13-29 2. An injured employee, who:

13-30 (a) Is eligible for vocational rehabilitation services pursuant to NRS

13-31 616C.590; and

13-32 (b) Resides outside of this state [,] but does not qualify to receive

13-33 vocational rehabilitation services outside of this state pursuant to

13-34 subsection 1,

13-35 may execute a written agreement with the insurer which provides for the

13-36 payment of compensation in a lump sum in lieu of the provision of

13-37 vocational rehabilitation services pursuant to NRS 616C.595. The amount

13-38 of the lump sum must not exceed $15,000.

13-39 3. An injured employee who resides outside of this state but does not

13-40 qualify to receive vocational rehabilitation services outside of this state

13-41 pursuant to subsection 1 may receive the vocational rehabilitation services

13-42 to which he is entitled pursuant to NRS 616C.545 to 616C.575, inclusive,

13-43 and 616C.590 if he relocates to [this] :

14-1 (a) This state ; or

15-1 (b) A location within 50 miles from any border of this state,

15-2 at his own expense [.] , if such services are available at such location.

15-3 Sec. 14. Chapter 616D of NRS is hereby amended by adding thereto a

15-4 new section to read as follows:

15-5 1. A cause of action may be brought and maintained against an

15-6 insurer or a third-party administrator who violates any provision of this

15-7 chapter or chapter 616A, 616B, 616C or 617 of NRS by a claimant who

15-8 has not accepted a benefit penalty pursuant to NRS 616D.120.

15-9 2. A claimant may pursue a cause of action against an insurer or

15-10 third-party administrator and file a complaint with the administrator

15-11 alleging a violation of any of the provisions of paragraphs (a) to (d),

15-12 inclusive, of subsection 1 of NRS 616D.120 but may not accept a benefit

15-13 penalty from that insurer or third-party administrator unless he first

15-14 waives, in writing, all rights to:

15-15 (a) Proceed in the previously instituted action; and

15-16 (b) Bring any future action against the insurer or third-party

15-17 administrator.

15-18 Such a claimant must deliver to the insurer or third-party administrator

15-19 the written waiver within 5 days after the insurer or third-party

15-20 administrator attempts to deliver the benefit penalty to the claimant.

15-21 3. If a claimant who has brought a cause of action against an

15-22 insurer or third-party administrator does not wish to participate in an

15-23 investigation conducted by the administrator pursuant to NRS 616D.130

15-24 against that insurer or third-party administrator, the claimant may notify

15-25 the administrator that he is pursuing a cause of action against that

15-26 insurer or third-party administrator and is waiving his right to receive a

15-27 benefit penalty from that insurer or third-party administrator. If a

15-28 claimant notifies the administrator that he is pursuing a cause of action

15-29 against an insurer or third-party administrator, the administrator shall

15-30 not require the claimant to participate in the investigation concerning

15-31 that insurer or third-party administrator and shall not impose a benefit

15-32 penalty on that insurer or third-party administrator.

15-33 4. A claimant who:

15-34 (a) Wishes to preserve his right to bring or maintain a cause of action

15-35 against an insurer or third-party administrator; and

15-36 (b) Is offered a benefit penalty by that insurer or third-party

15-37 administrator pursuant to an order of the administrator issued pursuant

15-38 to subsection 3 of NRS 616D.120,

15-39 must refuse to accept the benefit penalty and must deliver to the insurer

15-40 or third-party administrator a written refusal to accept the benefit penalty

15-41 within 5 days after the insurer or third-party administrator attempts to

15-42 deliver the benefit penalty.

16-1 Sec. 15. NRS 616D.010 is hereby amended to read as follows:

16-2 616D.010 Except as otherwise provided in NRS 616A.020, 616B.600

16-3 and 616C.190, and section 14 of this act, no penalty or remedy provided

16-4 in this chapter or chapter 616A, 616B or 616C of NRS is exclusive of any

16-5 other penalty or remedy, but is cumulative and in addition to every other

16-6 penalty or remedy and may be exercised without exhausting and without

16-7 regard to any other penalty or remedy provided by those chapters or any

16-8 other statute.

16-9 Sec. 16. NRS 616D.030 is hereby amended to read as follows:

16-10 616D.030 1. [No] Except as otherwise provided in section 14 of this

16-11 act, no cause of action may be brought or maintained against an insurer or

16-12 a third-party administrator who violates any provision of this chapter or

16-13 chapter 616A, 616B, 616C or 617 of NRS.

16-14 2. [The] Except as otherwise provided in section 14 of this act, the

16-15 administrative fines provided for in NRS 616B.318 and 616D.120 are the

16-16 exclusive remedies for any violation of this chapter or chapter 616A,

16-17 616B, 616C or 617 of NRS committed by an insurer or a third-party

16-18 administrator.

16-19 Sec. 17. NRS 616D.050 is hereby amended to read as follows:

16-20 616D.050 1. Appeals officers, the administrator, the manager and

16-21 the manager’s designee, in conducting hearings or other proceedings

16-22 pursuant to the provisions of chapters 616A to 616D, inclusive, of NRS or

16-23 regulations adopted pursuant to those chapters may:

16-24 (a) [Issue] Except as otherwise provided in subsection 3 of section 14

16-25 of this act, issue subpoenas requiring the attendance of any witness or the

16-26 production of books, accounts, papers, records and documents.

16-27 (b) Administer oaths.

16-28 (c) Certify to official acts.

16-29 (d) [Call] Except as otherwise provided in subsection 3 of section 14 of

16-30 this act, call and examine under oath any witness or party to a claim.

16-31 (e) Maintain order.

16-32 (f) Rule upon all questions arising during the course of a hearing or

16-33 proceeding.

16-34 (g) Permit discovery by deposition or interrogatories.

16-35 (h) Initiate and hold conferences for the settlement or simplification of

16-36 issues.

16-37 (i) Dispose of procedural requests or similar matters.

16-38 (j) Generally regulate and guide the course of a pending hearing or

16-39 proceeding.

16-40 2. Hearing officers, in conducting hearings or other proceedings

16-41 pursuant to the provisions of chapters 616A to 616D, inclusive, of NRS or

16-42 regulations adopted pursuant to those chapters, may:

17-1 (a) Issue subpoenas requiring the attendance of any witness or the

17-2 production of books, accounts, papers, records and documents that are

17-3 relevant to the dispute for which the hearing or other proceeding is being

17-4 held.

17-5 (b) Maintain order.

17-6 (c) Permit discovery by deposition or interrogatories.

17-7 (d) Initiate and hold conferences for the settlement or simplification of

17-8 issues.

17-9 (e) Dispose of procedural requests or similar matters.

17-10 (f) Generally regulate and guide the course of a pending hearing or

17-11 proceeding.

17-12 Sec. 18. NRS 616D.120 is hereby amended to read as follows:

17-13 616D.120 1. Except as otherwise provided in this section, if the

17-14 administrator determines that an insurer, organization for managed care,

17-15 health care provider, third-party administrator or employer has:

17-16 (a) Through fraud, coercion, duress or undue influence:

17-17 (1) Induced a claimant to fail to report an accidental injury or

17-18 occupational disease;

17-19 (2) Persuaded a claimant to settle for an amount which is less than

17-20 reasonable;

17-21 (3) Persuaded a claimant to settle for an amount which is less than

17-22 reasonable while a hearing or an appeal is pending; or

17-23 (4) Persuaded a claimant to accept less than the compensation found

17-24 to be due him by a hearing officer, appeals officer, court of competent

17-25 jurisdiction, written settlement agreement, written stipulation or the

17-26 division when carrying out its duties pursuant to chapters 616A to 617,

17-27 inclusive, of NRS;

17-28 (b) Refused to pay or unreasonably delayed payment to a claimant of

17-29 compensation found to be due him by a hearing officer, appeals officer,

17-30 court of competent jurisdiction, written settlement agreement, written

17-31 stipulation or the division when carrying out its duties pursuant to chapters

17-32 616A to 616D, inclusive, or chapter 617 of NRS, if the refusal or delay

17-33 occurs:

17-34 (1) Later than 10 days after the date of the settlement agreement or

17-35 stipulation;

17-36 (2) Later than 30 days after the date of the decision of a court,

17-37 hearing officer, appeals officer or division, unless a stay has been granted;

17-38 or

17-39 (3) Later than 10 days after a stay of the decision of a court, hearing

17-40 officer, appeals officer or division has been lifted;

17-41 (c) Refused to process a claim for compensation pursuant to chapters

17-42 616A to 616D, inclusive, or chapter 617 of NRS;

18-1 (d) Made it necessary for a claimant to initiate proceedings pursuant to

18-2 chapters 616A to 616D, inclusive, or chapter 617 of NRS for

18-3 compensation found to be due him by a hearing officer, appeals officer,

18-4 court of competent jurisdiction, written settlement agreement, written

18-5 stipulation or the division when carrying out its duties pursuant to chapters

18-6 616A to 616D, inclusive, or chapter 617 of NRS;

18-7 (e) Failed to comply with the division’s regulations covering the

18-8 payment of an assessment relating to the funding of costs of administration

18-9 of chapters 616A to 617, inclusive, of NRS;

18-10 (f) Failed to provide or unreasonably delayed payment to an injured

18-11 employee or reimbursement to an insurer pursuant to NRS 616C.165; or

18-12 (g) Intentionally failed to comply with any provision of, or regulation

18-13 adopted pursuant to, this chapter or chapter 616A, 616B, 616C or 617 of

18-14 NRS,

18-15 the administrator shall impose an administrative fine of $1,000 for each

18-16 initial violation, or a fine of $10,000 for a second or subsequent violation.

18-17 2. Except as otherwise provided in chapters 616A to 616D, inclusive,

18-18 or chapter 617 of NRS, if the administrator determines that an insurer,

18-19 organization for managed care, health care provider, third-party

18-20 administrator or employer has failed to comply with any provision of this

18-21 chapter or chapter 616A, 616B, 616C or 617 of NRS, or any regulation

18-22 adopted pursuant thereto, the administrator may take any of the following

18-23 actions:

18-24 (a) Issue a notice of correction for:

18-25 (1) A minor violation, as defined by regulations adopted by the

18-26 division; or

18-27 (2) A violation involving the payment of compensation in an amount

18-28 which is greater than that required by any provision of this chapter or

18-29 chapter 616A, 616B, 616C or 617 of NRS, or any regulation adopted

18-30 pursuant thereto.

18-31 The notice of correction must set forth with particularity the violation

18-32 committed and the manner in which the violation may be corrected.

18-33 [Nothing in] The provisions of this section [authorizes] do not authorize

18-34 the administrator to modify or negate in any manner a determination or any

18-35 portion of a determination made by a hearing officer, appeals officer or

18-36 court of competent jurisdiction or a provision contained in a written

18-37 settlement agreement or written stipulation.

18-38 (b) Impose an administrative fine for:

18-39 (1) A second or subsequent violation for which a notice of correction

18-40 has been issued pursuant to paragraph (a); or

18-41 (2) Any other violation of this chapter or chapter 616A, 616B, 616C

18-42 or 617 of NRS, or any regulation adopted pursuant thereto, for which a

18-43 notice of correction may not be issued pursuant to paragraph (a).

19-1 The fine imposed may not be greater than $250 for an initial violation, or

19-2 more than $1,000 for any second or subsequent violation.

19-3 (c) Order a plan of corrective action to be submitted to the administrator

19-4 within 30 days after the date of the order.

19-5 3. [If] Unless a claimant has notified the administrator that,

19-6 pursuant to subsection 3 of section 14 of this act, he is pursuing a cause

19-7 of action against an insurer or third-party administrator and waiving his

19-8 right to receive a benefit penalty, if the administrator determines that a

19-9 violation of any of the provisions of paragraphs (a) to (d), inclusive, of

19-10 subsection 1 has occurred, the administrator shall order the insurer,

19-11 organization for managed care, health care provider, third-party

19-12 administrator or employer to pay to the claimant a benefit penalty in an

19-13 amount equal to 50 percent of the compensation due or $10,000,

19-14 whichever is less. In no event may a benefit penalty be less than $500. The

19-15 benefit penalty is for the benefit of the claimant and , except as otherwise

19-16 provided in this subsection, must be paid directly to him within 10 days

19-17 after the date of the administrator’s determination. If the claimant has,

19-18 pursuant to section 14 of this act, brought an action against an insurer or

19-19 third-party administrator who is subject to an order of the administrator

19-20 pursuant to this section, the insurer or third-party administrator is not

19-21 required to pay the penalty to the claimant if the claimant:

19-22 (a) Refuses to deliver a written waiver pursuant to subsection 2 of

19-23 section 14 of this act; or

19-24 (b) Delivers to the insurer or third-party administrator a written

19-25 refusal to accept the benefit penalty pursuant to subsection 4 of section

19-26 14 of this act.

19-27 Proof of the payment of the benefit penalty , the claimant’s refusal to

19-28 deliver a written waiver or the claimant’s refusal to accept the benefit

19-29 penalty must be submitted to the administrator within 10 days after the

19-30 date of his determination unless an appeal is filed pursuant to NRS

19-31 616D.140. Any compensation to which the claimant may otherwise be

19-32 entitled pursuant to chapters 616A to 616D, inclusive, or chapter 617 of

19-33 NRS must not be reduced by the amount of any benefit penalty received

19-34 pursuant to this subsection.

19-35 4. In addition to any fine or benefit penalty imposed pursuant to this

19-36 section, the administrator may assess against an insurer who violates any

19-37 regulation concerning the reporting of claims expenditures used to

19-38 calculate an assessment an administrative penalty of up to twice the

19-39 amount of any underpaid assessment.

19-40 5. If:

19-41 (a) The administrator determines that a person has violated any of the

19-42 provisions of NRS 616D.200, 616D.220, 616D.240, 616D.300, 616D.310

19-43 or 616D.350 to 616D.440, inclusive; and

20-1 (b) The fraud control unit for industrial insurance established pursuant

20-2 to NRS 228.420 notifies the administrator that the unit will not prosecute

20-3 the person for that violation,

20-4 the administrator shall impose an administrative fine of not more than

20-5 $10,000.

20-6 6. Two or more fines of $1,000 or more imposed in 1 year for acts

20-7 enumerated in subsection 1 must be considered by the commissioner as

20-8 evidence for the withdrawal of:

20-9 (a) A certificate to act as a self-insured employer.

20-10 (b) A certificate to act as an association of self-insured public or private

20-11 employers.

20-12 (c) A certificate of registration as a third-party administrator.

20-13 7. The commissioner may, without complying with the provisions of

20-14 NRS 616B.327 or 616B.431, withdraw the certification of a self-insured

20-15 employer, association of self-insured public or private employers or third-

20-16 party administrator if, after a hearing, it is shown that the self-insured

20-17 employer, association of self-insured public or private employers or third-

20-18 party administrator violated any provision of subsection 1.

20-19 Sec. 19. NRS 616D.140 is hereby amended to read as follows:

20-20 616D.140 1. If a person wishes to contest a decision of the

20-21 administrator to impose an administrative fine or benefit penalty pursuant

20-22 to this chapter or chapter 616A, 616B, 616C or 617 of NRS, he must file a

20-23 notice of appeal with the division within 10 days after receipt of the

20-24 administrator’s decision, showing why the proposed fine or benefit penalty

20-25 should not be imposed.

20-26 2. If a notice of appeal is filed as required by subsection 1, the

20-27 administrator shall, in accordance with the provisions of NRS 233B.121,

20-28 issue a notice of hearing that must include a date for a hearing on the

20-29 matter, which must be no sooner than 30 days after the notice of appeal is

20-30 filed. The administrator may grant a continuance of the hearing upon a

20-31 showing of good cause.

20-32 3. [If] Except as otherwise provided in this subsection, if a notice of

20-33 appeal is not filed as required by this section, the imposition of the fine or

20-34 benefit penalty shall be deemed a final order and is not subject to review

20-35 by any court or agency. If the claimant on whose behalf a benefit penalty

20-36 is imposed:

20-37 (a) Refused to deliver to an insurer or third-party administrator a

20-38 written waiver pursuant to subsection 2 of section 14 of this act; or

20-39 (b) Delivered a written refusal to accept the benefit penalty pursuant

20-40 to subsection 4 of section 14 of this act,

20-41 the imposition of a benefit penalty against the insurer or third-party

20-42 administrator shall not be deemed a final order pursuant to this

20-43 subsection.

21-1 4. Except as otherwise provided in NRS 616B.086, a hearing held

21-2 pursuant to this section must be conducted by the administrator or a person

21-3 designated by him. A record of the hearing must be kept but it need not be

21-4 transcribed unless it is requested by the person against whom the order or

21-5 notice of violation has been issued and that person pays the cost of

21-6 transcription. The administrator shall render a written decision on the

21-7 appeal.

21-8 5. An administrative fine imposed pursuant to this chapter or chapter

21-9 616A, 616B, 616C or 617 of NRS must be paid to the division. If the

21-10 violation for which the fine is levied was committed by a person while

21-11 acting within the course and scope of his agency or employment, the fine

21-12 must be paid by his principal or employer. The fine may be recovered in a

21-13 civil action brought in the name of the division in a court of competent

21-14 jurisdiction in the county in which the violation occurred or in which the

21-15 person against whom the fine is levied has his principal place of business.

21-16 6. [A] Except as otherwise provided in subsection 3 of NRS

21-17 616D.120, a benefit penalty imposed pursuant to NRS 616D.120 must be

21-18 paid to the claimant on whose behalf it is imposed. If such payment is not

21-19 made within the period required by NRS 616D.120 [,] and the insurer or

21-20 third-party administrator cannot demonstrate that the claimant refused to

21-21 deliver a written waiver or delivered a written refusal to accept the benefit

21-22 penalty pursuant to subsection 2 or 4 of section 14 of this act, the benefit

21-23 penalty may be recovered in a civil action brought by the administrator on

21-24 behalf of the claimant in a court of competent jurisdiction in the county in

21-25 which the claimant resides, in which the violation occurred or in which the

21-26 person who is required to pay the benefit penalty has his principal place of

21-27 business.

21-28 7. Any party aggrieved by a decision of the administrator rendered

21-29 pursuant to this section may appeal the decision directly to the district

21-30 court.

21-31 Sec. 20. NRS 617.366 is hereby amended to read as follows:

21-32 617.366 1. [An employee is not entitled to compensation pursuant to

21-33 the provisions of this chapter if:

21-34 (a) He has] The resulting condition of an employee who:

21-35 (a) Has a preexisting condition from a cause or origin that did not arise

21-36 out of and in the course of his current or past employment; and

21-37 (b) [He subsequently] Subsequently contracts an occupational disease

21-38 which aggravates, precipitates or accelerates his preexisting condition,

21-39 shall be deemed to be an injury by accident that is compensable pursuant

21-40 to the provisions of chapters 616A to 616D, inclusive, of NRS, unless

21-41 [information from a physician or chiropractor establishes to the satisfaction

21-42 of] the insurer can prove by clear and convincing evidence that the

22-1 [occupational disease] preexisting condition is the primary cause of the

22-2 resulting condition.

22-3 2. [An employee is not entitled to compensation pursuant to the

22-4 provisions of this chapter if:

22-5 (a) He contracts] The resulting condition of an employee who:

22-6 (a) Contracts an occupational disease; and

22-7 (b) [He subsequently] Subsequently aggravates, precipitates or

22-8 accelerates the occupational disease in a manner that does not arise out of

22-9 and in the course of his employment,

22-10 shall be deemed to be an injury by accident that is compensable pursuant

22-11 to the provisions of chapters 616A to 616D, inclusive, of NRS, unless the

22-12 [occupational disease] insurer can prove by clear and convincing

22-13 evidence that the effect described in paragraph (b) is the primary cause of

22-14 the resulting condition.

22-15 Sec. 21. NRS 617.510 is hereby amended to read as follows:

22-16 617.510 Except as otherwise provided in NRS 617.017, and section

22-17 14 of this act, no penalty or remedy provided in this chapter is exclusive of

22-18 any other penalty or remedy, but is cumulative and in addition to every

22-19 other penalty or remedy and may be exercised without exhausting and

22-20 without regard to any other penalty or remedy provided by this chapter or

22-21 any other statute.

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