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.

~

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; 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 certain causes 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 that

1-3 , except as otherwise provided in NRS 616D.120 and section 11 of this

1-4 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 11 of this act, if a

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

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

2-22 interviews of affected persons. If the administrator determines that a

2-23 violation may have occurred, the administrator shall proceed in accordance

2-24 with the provisions of NRS 616D.120 and 616D.130.

2-25 Sec. 3. NRS 616C.100 is hereby amended to read as follows:

2-26 616C.100 1. If an injured employee disagrees with the percentage of

2-27 disability determined by a physician or chiropractor, the injured employee

2-28 may obtain a second determination of the percentage of disability. If the

2-29 employee wishes to obtain such a determination, he must select the next

2-30 physician or chiropractor in rotation from the list of qualified physicians or

2-31 chiropractors maintained by the administrator pursuant to subsection 2 of

2-32 NRS 616C.490. If a second determination is obtained, the injured

2-33 employee shall pay for the determination. If the physician or chiropractor

2-34 selected to make the second determination finds a higher percentage of

2-35 disability than the first physician or chiropractor, the insurer shall pay to

2-36 the employee an amount equal to the maximum allowable fee established

2-37 by the administrator pursuant to NRS 616C.260 for the type of service

2-38 performed, or the usual fee of that physician or chiropractor for such

2-39 service, whichever is less.

2-40 2. The results of a second determination made pursuant to subsection 1

2-41 may be offered at any hearing or settlement conference.

3-1 Sec. 4. NRS 616C.175 is hereby amended to read as follows:

3-2 616C.175 1. [An employee is not entitled to compensation pursuant

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

3-4 (a) He has] The resulting condition of an employee who:

3-5 (a) Has a preexisting condition from a cause or origin that did not arise

3-6 out of or in the course of his current or past employment; and

3-7 (b) [He subsequently] Subsequently sustains an injury by accident

3-8 arising out of and in the course of his employment which aggravates,

3-9 precipitates or accelerates his preexisting condition,

3-10 shall be deemed to be an injury by accident that is compensable pursuant

3-11 to the provisions of chapters 616A to 616D, inclusive, of NRS, unless

3-12 [information from a physician or chiropractor establishes to the satisfaction

3-13 of] the insurer can prove by clear and convincing evidence that the

3-14 [subsequent injury] preexisting condition is the primary cause of the

3-15 resulting condition.

3-16 2. [An employee is not entitled to compensation pursuant to the

3-17 provisions of chapters 616A to 616D, inclusive, of NRS if:

3-18 (a) He sustains] The resulting condition of an employee who:

3-19 (a) Sustains an injury by accident arising out of and in the course of his

3-20 employment; and

3-21 (b) [He subsequently] Subsequently aggravates, precipitates or

3-22 accelerates the injury in a manner that does not arise out of and in the

3-23 course of his employment,

3-24 shall be deemed to be an injury by accident that is compensable pursuant

3-25 to the provisions of chapters 616A to 616D, inclusive, of NRS, unless the

3-26 insurer can prove by clear and convincing evidence that the injury

3-27 described in paragraph [(a)] (b) is the primary cause of the resulting

3-28 condition.

3-29 Sec. 5. NRS 616C.440 is hereby amended to read as follows:

3-30 616C.440 1. Except as otherwise provided in this section and NRS

3-31 616C.175, every employee in the employ of an employer, within the

3-32 provisions of chapters 616A to 616D, inclusive, of NRS, who is injured by

3-33 accident arising out of and in the course of employment, or his dependents

3-34 as defined in chapters 616A to 616D, inclusive, of NRS, is entitled to

3-35 receive the following compensation for permanent total disability:

3-36 (a) In cases of total disability adjudged to be permanent, compensation

3-37 per month of 66 2/3 percent of the average monthly wage.

3-38 (b) If there is a previous disability, as the loss of one eye, one hand, one

3-39 foot or any other previous permanent disability, the percentage of disability

3-40 for a subsequent injury must be determined by computing the percentage of

3-41 the entire disability and deducting therefrom the percentage of the previous

3-42 disability as it existed at the time of the subsequent injury, but such a

3-43 deduction for a previous award for permanent partial disability must be

4-1 made in a reasonable manner and must not be more than the total amount

4-2 which was paid for the previous award for permanent partial disability.

4-3 (c) If the character of the injury is such as to render the employee so

4-4 physically helpless as to require the service of a constant attendant, an

4-5 additional allowance may be made so long as such requirements continue,

4-6 but the allowance may not be made while the employee is receiving

4-7 benefits for care in a hospital or facility for intermediate care pursuant to

4-8 the provisions of NRS [616C.255 and] 616C.265.

4-9 2. Except as otherwise provided in NRS 616B.185 and 616B.186, an

4-10 injured employee or his dependents are not entitled to accrue or be paid any

4-11 benefits for a permanent total disability during the time the injured

4-12 employee is incarcerated. The injured employee or his dependents are

4-13 entitled to receive such benefits when the injured employee is released from

4-14 incarceration if he is certified as permanently totally disabled by a

4-15 physician or chiropractor.

4-16 3. An employee is entitled to receive compensation for a permanent

4-17 total disability only so long as the permanent total disability continues to

4-18 exist. The insurer has the burden of proving that the permanent total

4-19 disability no longer exists.

4-20 4. If an employee who has received compensation in a lump sum for a

4-21 permanent partial disability pursuant to NRS 616C.495 is subsequently

4-22 determined to be permanently and totally disabled, the compensation for

4-23 the permanent total disability must be reduced as follows:

4-24 (a) If the employee has not received a minimum lump sum, the

4-25 [employee’s] insurer of the employee’s employer shall deduct from the

4-26 compensation for the permanent total disability an amount equal to the

4-27 monthly installment rate for awards for permanent partial disability until

4-28 the [employee reaches the age upon which his disability was calculated;]

4-29 insurer has deducted an amount that equals the amount it has already

4-30 paid out as a lump sum; or

4-31 (b) If the employee received a minimum lump sum, the [employee’s]

4-32 insurer of the employee’s employer shall deduct from the compensation for

4-33 the permanent total disability an amount of not more than 10 percent of the

4-34 rate of compensation for a permanent total disability until the lump sum is

4-35 recovered.

4-36 The provisions of this subsection are retroactive for all claims for

4-37 compensation for a permanent total disability remaining open on [July 1,

4-38 1995.] October 1, 1999.

4-39 Sec. 6. NRS 616C.475 is hereby amended to read as follows:

4-40 616C.475 1. Except as otherwise provided in this section, NRS

4-41 616C.175 and 616C.390, every employee in the employ of an employer,

4-42 within the provisions of chapters 616A to 616D, inclusive, of NRS, who is

4-43 injured by accident arising out of and in the course of employment, or his

5-1 dependents, is entitled to receive for the period of temporary total

5-2 disability, 66 2/3 percent of the average monthly wage.

5-3 2. Except as otherwise provided in NRS 616B.185 and 616B.186, an

5-4 injured employee or his dependents are not entitled to accrue or be paid any

5-5 benefits for a temporary total disability during the time the injured

5-6 employee is incarcerated. The injured employee or his dependents are

5-7 entitled to receive such benefits when the injured employee is released from

5-8 incarceration if he is certified as temporarily totally disabled by a physician

5-9 or chiropractor.

5-10 3. If a claim for the period of temporary total disability is allowed, the

5-11 first payment pursuant to this section must be issued by the insurer within

5-12 14 working days after receipt of the initial certification of disability and

5-13 regularly thereafter.

5-14 4. Any increase in compensation and benefits effected by the

5-15 amendment of subsection 1 is not retroactive.

5-16 5. Payments for a temporary total disability must cease when:

5-17 (a) A physician or chiropractor determines that the employee is

5-18 physically capable of any gainful employment for which the employee is

5-19 suited, after giving consideration to the employee’s education, training and

5-20 experience;

5-21 (b) The employer offers the employee light-duty employment or

5-22 employment that is modified according to the limitations or restrictions

5-23 imposed by a physician or chiropractor pursuant to subsection 7; or

5-24 (c) Except as otherwise provided in NRS 616B.185 and 616B.186, the

5-25 employee is incarcerated.

5-26 6. Each insurer may, with each check that it issues to an injured

5-27 employee for a temporary total disability, include a form approved by the

5-28 division for the injured employee to request continued compensation for the

5-29 temporary total disability.

5-30 7. A certification of disability issued by a physician or chiropractor

5-31 must:

5-32 (a) Include the period of disability and a description of any physical

5-33 limitations or restrictions imposed upon the work of the employee;

5-34 (b) Specify whether the limitations or restrictions are permanent or

5-35 temporary; and

5-36 (c) Be signed by the treating physician or chiropractor authorized

5-37 pursuant to NRS 616B.515 or 616B.527.

5-38 8. If certification of disability specifies that the physical limitations or

5-39 restrictions are temporary, the employer of the employee at the time of his

5-40 accident is not required to comply with NRS 616C.545 to 616C.575,

5-41 inclusive, and 616C.590 or the regulations adopted by the division

5-42 governing vocational rehabilitation services if the employer offers the

5-43 employee a position that [is] :

6-1 (a) Is substantially similar to the employee’s position at the time of his

6-2 injury in relation to the location of the employment [,] and the hours he is

6-3 required to work ; and [the salary he will be paid.]

6-4 (b) Provides a gross wage that is equal to or greater than the gross

6-5 wage the employee was earning at the time of his injury.

6-6 Sec. 7. NRS 616C.490 is hereby amended to read as follows:

6-7 616C.490 1. Except as otherwise provided in NRS 616C.175, every

6-8 employee, in the employ of an employer within the provisions of chapters

6-9 616A to 616D, inclusive, of NRS, who is injured by an accident arising out

6-10 of and in the course of employment is entitled to receive the compensation

6-11 provided for permanent partial disability. As used in this section,

6-12 "disability" and "impairment of the whole man" are equivalent terms.

6-13 2. Within 30 days after receiving from a physician or chiropractor a

6-14 report indicating that the injured employee may have suffered a permanent

6-15 disability and is stable and ratable, the insurer shall schedule an

6-16 appointment with [a] the rating physician or chiropractor selected pursuant

6-17 to this subsection to determine the extent of the employee’s disability.

6-18 Unless the insurer and the injured employee otherwise agree to a rating

6-19 physician or chiropractor:

6-20 (a) The insurer shall select [a] the rating physician or chiropractor from

6-21 [a group] the list of qualified rating physicians and chiropractors

6-22 designated by the administrator, to determine the percentage of disability in

6-23 accordance with the American Medical Association’s Guides to the

6-24 Evaluation of Permanent Impairment as adopted and supplemented by the

6-25 division pursuant to NRS 616C.110.

6-26 (b) Rating physicians and chiropractors must be selected in rotation

6-27 from the list of qualified physicians and chiropractors designated by the

6-28 administrator, according to their area of specialization and the order in

6-29 which their names appear on the list.

6-30 3. At the request of the insurer, the injured employee shall, before an

6-31 evaluation by a rating physician or chiropractor is performed, notify the

6-32 insurer of:

6-33 (a) Any previous evaluations performed to determine the extent of any

6-34 of the employee’s disabilities; and

6-35 (b) Any previous injury, disease or condition sustained by the employee

6-36 which is relevant to the evaluation performed pursuant to this section.

6-37 The notice must be on a form approved by the administrator and provided

6-38 to the injured employee by the insurer at the time of the insurer’s request.

6-39 4. Unless the regulations adopted pursuant to NRS 616C.110 provide

6-40 otherwise, a rating evaluation must include an evaluation of the loss of

6-41 motion, sensation and strength of an injured employee if the injury is of a

6-42 type that might have caused such a loss. No factors other than the degree of

6-43 physical impairment of the whole man may be considered in calculating the

7-1 entitlement to compensation for a permanent partial disability. A rating

7-2 evaluation of the spinal region must determine the percentage of

7-3 disability as it existed before any surgical procedures were performed on

7-4 the spinal region, unless the physician or chiropractor determines that

7-5 the injured employee experienced major complications from the surgical

7-6 procedure. If the physician or chiropractor determines that an injured

7-7 employee experienced major complications from a surgical procedure

7-8 performed on the spinal region, he shall include the effect of the

7-9 complications when determining the percentage of disability of that

7-10 injured employee.

7-11 5. The rating physician or chiropractor shall provide the insurer with

7-12 his evaluation of the injured employee. After receiving the evaluation, the

7-13 insurer shall, within 14 days, provide the employee with a copy of the

7-14 evaluation and notify the employee:

7-15 (a) Of the compensation to which he is entitled pursuant to this section;

7-16 or

7-17 (b) That he is not entitled to benefits for permanent partial disability.

7-18 6. Each 1 percent of impairment of the whole man must be

7-19 compensated by a monthly payment:

7-20 (a) Of 0.5 percent of the claimant’s average monthly wage for injuries

7-21 sustained before July 1, 1981;

7-22 (b) Of 0.6 percent of the claimant’s average monthly wage for injuries

7-23 sustained on or after July 1, 1981, and before June 18, 1993; [and]

7-24 (c) Of 0.54 percent of the claimant’s average monthly wage for injuries

7-25 sustained on or after June 18, 1993 [.] , and before October 1, 1999; and

7-26 (d) Of 0.6 percent of the claimant’s average monthly wage for injuries

7-27 sustained on or after October 1, 1999.

7-28 Compensation must commence on the date of the injury or the day

7-29 following the termination of temporary disability compensation, if any,

7-30 whichever is later, and must continue on a monthly basis for 5 years or until

7-31 the claimant is 70 years of age, whichever is later.

7-32 7. Compensation benefits may be paid annually to claimants who will

7-33 be receiving less than $100 a month.

7-34 8. Where there is a previous disability, as the loss of one eye, one hand,

7-35 one foot, or any other previous permanent disability, the percentage of

7-36 disability for a subsequent injury must be determined by computing the

7-37 percentage of the entire disability and deducting therefrom the percentage

7-38 of the previous disability as it existed at the time of the subsequent injury.

7-39 9. The division may adopt schedules for rating permanent disabilities

7-40 resulting from injuries sustained before July 1, 1973, and reasonable

7-41 regulations to carry out the provisions of this section.

8-1 10. The increase in compensation and benefits effected by the

8-2 amendment of this section is not retroactive for accidents which occurred

8-3 before July 1, 1973.

8-4 11. This section does not entitle any person to double payments for the

8-5 death of an employee and a continuation of payments for a permanent

8-6 partial disability, or to a greater sum in the aggregate than if the injury had

8-7 been fatal.

8-8 Sec. 8. NRS 616C.555 is hereby amended to read as follows:

8-9 616C.555 1. A vocational rehabilitation counselor shall develop a

8-10 plan for a program of vocational rehabilitation for each injured employee

8-11 who is eligible for vocational rehabilitation services pursuant to NRS

8-12 616C.590. The counselor shall work with the insurer and the injured

8-13 employee to develop a program that is compatible with the injured

8-14 employee’s age, sex and physical condition.

8-15 2. If the counselor determined in the written assessment developed

8-16 pursuant to NRS 616C.550 that the injured employee has existing

8-17 marketable skills, the plan must consist of job placement assistance only.

8-18 When practicable, the goal of job placement assistance must be to aid the

8-19 employee in finding a position which pays a gross wage that is equal to or

8-20 greater than 80 percent of the gross wage that he was earning at the time of

8-21 his injury. An injured employee must not receive job placement assistance

8-22 for more than 90 days after the date on which he was notified that he is

8-23 eligible only for job placement assistance because:

8-24 (a) He was physically capable of returning to work; or

8-25 (b) It was determined that he had existing marketable skills.

8-26 3. If the counselor determined in the written assessment developed

8-27 pursuant to NRS 616C.550 that the injured employee does not have

8-28 existing marketable skills, the plan must consist of a program which trains

8-29 or educates the injured employee and provides job placement assistance.

8-30 Except as otherwise provided in NRS 616C.560, such a program must not

8-31 exceed [:

8-32 (a) If the injured employee has incurred a permanent physical

8-33 impairment of less than 6 percent, 6 months.

8-34 (b) If the injured employee has incurred a permanent physical

8-35 impairment of 6 percent or more, but less than 11 percent, 9 months.

8-36 (c) If the injured employee has incurred a permanent physical

8-37 impairment of 11 percent or more,] 1 year.

8-38 [The percentage of the injured employee’s permanent physical impairment

8-39 must be determined pursuant to NRS 616C.490.]

8-40 4. A plan for a program of vocational rehabilitation must comply with

8-41 the requirements set forth in NRS 616C.585.

8-42 5. A program of vocational rehabilitation must not commence before

8-43 the treating physician or chiropractor, or an examining physician or

9-1 chiropractor determines that the injured employee is capable of safely

9-2 participating in the program.

9-3 6. If, based upon the opinion of a treating or an examining physician or

9-4 chiropractor, the counselor determines that an injured employee is not

9-5 eligible for vocational rehabilitation services, the counselor shall provide a

9-6 copy of the opinion to the injured employee, the injured employee’s

9-7 employer and the insurer.

9-8 7. A plan for a program of vocational rehabilitation must be signed by

9-9 a certified vocational rehabilitation counselor.

9-10 8. If an initial program of vocational rehabilitation pursuant to this

9-11 section is unsuccessful, an injured employee may submit a written request

9-12 for the development of a second program of vocational rehabilitation which

9-13 relates to the same injury. An insurer shall authorize a second program for

9-14 an injured employee upon good cause shown.

9-15 9. If a second program of vocational rehabilitation pursuant to

9-16 subsection 8 is unsuccessful, an injured employee may submit a written

9-17 request for the development of a third program of vocational rehabilitation

9-18 which relates to the same injury. The insurer, with the approval of the

9-19 employer who was the injured employee’s employer at the time of his

9-20 injury, may authorize a third program for the injured employee. If such an

9-21 employer has terminated operations, his approval is not required for

9-22 authorization of a third program. An insurer’s determination to authorize or

9-23 deny a third program of vocational rehabilitation may not be appealed.

9-24 10. The division shall adopt regulations to carry out the provisions of

9-25 this section. The regulations must specify the contents of a plan for a

9-26 program of vocational rehabilitation.

9-27 Sec. 9. NRS 616C.560 is hereby amended to read as follows:

9-28 616C.560 1. A program for vocational rehabilitation developed

9-29 pursuant to subsection 3 of NRS 616C.555 may be extended:

9-30 (a) Without condition or limitation, by the insurer at his sole discretion;

9-31 or

9-32 (b) In accordance with this section if:

9-33 (1) The injured employee makes a written request to extend the

9-34 program within 30 days after he receives written notification that he is

9-35 eligible for vocational rehabilitation services; and

9-36 (2) There are exceptional circumstances which make it unlikely that

9-37 the injured employee will obtain suitable gainful employment as a result of

9-38 vocational rehabilitation which is limited to the period for which he is

9-39 eligible.

9-40 An insurer’s determination to grant or deny an extension pursuant to

9-41 paragraph (a) may not be appealed.

9-42 2. If an injured employee has incurred a permanent physical

9-43 impairment of less than 11 percent:

10-1 (a) The total length of the program, including any extension, must not

10-2 exceed [1 year.] 2 years.

10-3 (b) "Exceptional circumstances" shall be deemed to exist for the

10-4 purposes of paragraph (b) of subsection 1, if:

10-5 (1) The injured employee lacks work experience, training, education

10-6 or other transferable skills for an occupation which he is physically capable

10-7 of performing; or

10-8 (2) Severe physical restrictions as a result of the industrial injury have

10-9 been imposed by a physician which significantly limit the employee’s

10-10 occupational opportunities.

10-11 3. If an injured employee has incurred a permanent physical

10-12 impairment of 11 percent or more:

10-13 (a) The total length of the program, including any extension, must not

10-14 exceed [2] 3 years.

10-15 (b) "Exceptional circumstances" shall be deemed to exist for the

10-16 purposes of paragraph (b) of subsection 1, if the injured employee has

10-17 suffered:

10-18 (1) The total and permanent loss of sight of both eyes;

10-19 (2) The loss by separation of a leg at or above the knee;

10-20 (3) The loss by separation of a hand at or above the wrist;

10-21 (4) An injury to the head or spine which results in permanent and

10-22 complete paralysis of both legs, both arms or a leg and an arm;

10-23 (5) An injury to the head which results in a severe cognitive

10-24 functional impairment which may be established by a nationally recognized

10-25 form of objective psychological testing;

10-26 (6) The loss by separation of an arm at or above the elbow and the

10-27 loss by separation of a leg at or above the knee;

10-28 (7) An injury consisting of second or third degree burns on 50 percent

10-29 or more of the body, both hands or the face;

10-30 (8) A total bilateral loss of hearing;

10-31 (9) The total loss or significant and permanent impairment of speech;

10-32 or

10-33 (10) A permanent physical impairment of 50 percent or more

10-34 determined pursuant to NRS 616C.490, if the severity of the impairment

10-35 limits the injured employee’s gainful employment to vocations that are

10-36 primarily intellectual and require a longer program of education.

10-37 4. The insurer shall deliver a copy of its decision granting or denying

10-38 an extension to the injured employee and the employer. Except as

10-39 otherwise provided in this section, the decision shall be deemed to be a

10-40 final determination of the insurer for the purposes of NRS 616C.315.

10-41 Sec. 10. NRS 616C.580 is hereby amended to read as follows:

10-42 616C.580 1. [Vocational] Except as otherwise provided in this

10-43 section, vocational rehabilitation services must not be provided outside of

11-1 this state. If an injured employee lives within 50 miles from any border of

11-2 this state on the date of injury, he may receive vocational rehabilitation

11-3 services at a location within 50 miles from any border of this state and

11-4 within 50 miles from his residence if such services are available at such

11-5 location.

11-6 2. An injured employee, who:

11-7 (a) Is eligible for vocational rehabilitation services pursuant to NRS

11-8 616C.590; and

11-9 (b) Resides outside of this state [,] but does not qualify to receive

11-10 vocational rehabilitation services outside of this state pursuant to

11-11 subsection 1,

11-12 may execute a written agreement with the insurer which provides for the

11-13 payment of compensation in a lump sum in lieu of the provision of

11-14 vocational rehabilitation services pursuant to NRS 616C.595. The amount

11-15 of the lump sum must not exceed $15,000.

11-16 3. An injured employee who resides outside of this state but does not

11-17 qualify to receive vocational rehabilitation services outside of this state

11-18 pursuant to subsection 1 may receive the vocational rehabilitation services

11-19 to which he is entitled pursuant to NRS 616C.545 to 616C.575, inclusive,

11-20 and 616C.590 if he relocates to [this] :

11-21 (a) This state ; or

11-22 (b) A location within 50 miles from any border of this state,

11-23 at his own expense [.] , if such services are available at such location.

11-24 Sec. 11. Chapter 616D of NRS is hereby amended by adding thereto a

11-25 new section to read as follows:

11-26 1. A cause of action may be brought and maintained against an

11-27 insurer or a third-party administrator, by a claimant who has not

11-28 accepted a benefit penalty pursuant to NRS 616D.120, which alleges that

11-29 the insurer or third-party administrator has, with knowledge of or

11-30 reckless disregard for his lack of a justification, denied or unreasonably

11-31 delayed payment of compensation to that claimant.

11-32 2. A claimant may pursue a cause of action against an insurer or

11-33 third-party administrator pursuant to subsection 1 and file a complaint

11-34 with the administrator alleging a violation of any of the provisions of

11-35 paragraphs (a) to (d), inclusive, of subsection 1 of NRS 616D.120 but

11-36 may not accept a benefit penalty from that insurer or third-party

11-37 administrator unless he first waives, in writing, all rights to:

11-38 (a) Proceed in the previously instituted action; and

11-39 (b) Bring any future action against the insurer or third-party

11-40 administrator pursuant to subsection 1.

11-41 Such a claimant must deliver to the insurer or third-party administrator

11-42 the written waiver within 5 days after the insurer or third-party

11-43 administrator attempts to deliver the benefit penalty to the claimant.

12-1 3. If a claimant who has brought a cause of action against an

12-2 insurer or third-party administrator pursuant to subsection 1 does not

12-3 wish to participate in an investigation conducted by the administrator

12-4 pursuant to NRS 616D.130 against that insurer or third-party

12-5 administrator, the claimant may notify the administrator that he is

12-6 pursuing a cause of action against that insurer or third-party

12-7 administrator pursuant to subsection 1 and is waiving his right to receive

12-8 a benefit penalty from that insurer or third-party administrator. If a

12-9 claimant notifies the administrator that he is pursuing a cause of action

12-10 against an insurer or third-party administrator pursuant to subsection 1,

12-11 the administrator shall not require the claimant to participate in the

12-12 investigation concerning that insurer or third-party administrator and

12-13 shall not impose a benefit penalty on that insurer or third-party

12-14 administrator.

12-15 4. A claimant who:

12-16 (a) Wishes to preserve his right to bring or maintain a cause of action

12-17 against an insurer or third-party administrator pursuant to subsection 1;

12-18 and

12-19 (b) Is offered a benefit penalty by that insurer or third-party

12-20 administrator pursuant to an order of the administrator issued pursuant

12-21 to subsection 3 of NRS 616D.120,

12-22 must refuse to accept the benefit penalty and must deliver to the insurer

12-23 or third-party administrator a written refusal to accept the benefit penalty

12-24 within 5 days after the insurer or third-party administrator attempts to

12-25 deliver the benefit penalty.

12-26 Sec. 12. NRS 616D.010 is hereby amended to read as follows:

12-27 616D.010 Except as otherwise provided in NRS 616A.020, 616B.600

12-28 and 616C.190, and section 11 of this act, no penalty or remedy provided in

12-29 this chapter or chapter 616A, 616B or 616C of NRS is exclusive of any

12-30 other penalty or remedy, but is cumulative and in addition to every other

12-31 penalty or remedy and may be exercised without exhausting and without

12-32 regard to any other penalty or remedy provided by those chapters or any

12-33 other statute.

12-34 Sec. 13. NRS 616D.030 is hereby amended to read as follows:

12-35 616D.030 1. [No] Except as otherwise provided in section 11 of this

12-36 act, no cause of action may be brought or maintained against an insurer or

12-37 a third-party administrator who violates any provision of this chapter or

12-38 chapter 616A, 616B, 616C or 617 of NRS.

12-39 2. [The] Except as otherwise provided in section 11 of this act, the

12-40 administrative fines provided for in NRS 616B.318 and 616D.120 are the

12-41 exclusive remedies for any violation of this chapter or chapter 616A, 616B,

12-42 616C or 617 of NRS committed by an insurer or a third-party

12-43 administrator.

13-1 Sec. 14. NRS 616D.050 is hereby amended to read as follows:

13-2 616D.050 1. Appeals officers, the administrator, the manager and the

13-3 manager’s designee, in conducting hearings or other proceedings pursuant

13-4 to the provisions of chapters 616A to 616D, inclusive, of NRS or

13-5 regulations adopted pursuant to those chapters may:

13-6 (a) [Issue] Except as otherwise provided in subsection 3 of section 11

13-7 of this act, issue subpoenas requiring the attendance of any witness or the

13-8 production of books, accounts, papers, records and documents.

13-9 (b) Administer oaths.

13-10 (c) Certify to official acts.

13-11 (d) [Call] Except as otherwise provided in subsection 3 of section 11 of

13-12 this act, call and examine under oath any witness or party to a claim.

13-13 (e) Maintain order.

13-14 (f) Rule upon all questions arising during the course of a hearing or

13-15 proceeding.

13-16 (g) Permit discovery by deposition or interrogatories.

13-17 (h) Initiate and hold conferences for the settlement or simplification of

13-18 issues.

13-19 (i) Dispose of procedural requests or similar matters.

13-20 (j) Generally regulate and guide the course of a pending hearing or

13-21 proceeding.

13-22 2. Hearing officers, in conducting hearings or other proceedings

13-23 pursuant to the provisions of chapters 616A to 616D, inclusive, of NRS or

13-24 regulations adopted pursuant to those chapters, may:

13-25 (a) Issue subpoenas requiring the attendance of any witness or the

13-26 production of books, accounts, papers, records and documents that are

13-27 relevant to the dispute for which the hearing or other proceeding is being

13-28 held.

13-29 (b) Maintain order.

13-30 (c) Permit discovery by deposition or interrogatories.

13-31 (d) Initiate and hold conferences for the settlement or simplification of

13-32 issues.

13-33 (e) Dispose of procedural requests or similar matters.

13-34 (f) Generally regulate and guide the course of a pending hearing or

13-35 proceeding.

13-36 Sec. 15. NRS 616D.120 is hereby amended to read as follows:

13-37 616D.120 1. Except as otherwise provided in this section, if the

13-38 administrator determines that an insurer, organization for managed care,

13-39 health care provider, third-party administrator or employer has:

13-40 (a) Through fraud, coercion, duress or undue influence:

13-41 (1) Induced a claimant to fail to report an accidental injury or

13-42 occupational disease;

14-1 (2) Persuaded a claimant to settle for an amount which is less than

14-2 reasonable;

14-3 (3) Persuaded a claimant to settle for an amount which is less than

14-4 reasonable while a hearing or an appeal is pending; or

14-5 (4) Persuaded a claimant to accept less than the compensation found

14-6 to be due him by a hearing officer, appeals officer, court of competent

14-7 jurisdiction, written settlement agreement, written stipulation or the

14-8 division when carrying out its duties pursuant to chapters 616A to 617,

14-9 inclusive, of NRS;

14-10 (b) Refused to pay or unreasonably delayed payment to a claimant of

14-11 compensation found to be due him by a hearing officer, appeals officer,

14-12 court of competent jurisdiction, written settlement agreement, written

14-13 stipulation or the division when carrying out its duties pursuant to chapters

14-14 616A to 616D, inclusive, or chapter 617 of NRS, if the refusal or delay

14-15 occurs:

14-16 (1) Later than 10 days after the date of the settlement agreement or

14-17 stipulation;

14-18 (2) Later than 30 days after the date of the decision of a court, hearing

14-19 officer, appeals officer or division, unless a stay has been granted; or

14-20 (3) Later than 10 days after a stay of the decision of a court, hearing

14-21 officer, appeals officer or division has been lifted;

14-22 (c) Refused to process a claim for compensation pursuant to chapters

14-23 616A to 616D, inclusive, or chapter 617 of NRS;

14-24 (d) Made it necessary for a claimant to initiate proceedings pursuant to

14-25 chapters 616A to 616D, inclusive, or chapter 617 of NRS for compensation

14-26 found to be due him by a hearing officer, appeals officer, court of

14-27 competent jurisdiction, written settlement agreement, written stipulation or

14-28 the division when carrying out its duties pursuant to chapters 616A to

14-29 616D, inclusive, or chapter 617 of NRS;

14-30 (e) Failed to comply with the division’s regulations covering the

14-31 payment of an assessment relating to the funding of costs of administration

14-32 of chapters 616A to 617, inclusive, of NRS;

14-33 (f) Failed to provide or unreasonably delayed payment to an injured

14-34 employee or reimbursement to an insurer pursuant to NRS 616C.165; or

14-35 (g) Intentionally failed to comply with any provision of, or regulation

14-36 adopted pursuant to, this chapter or chapter 616A, 616B, 616C or 617 of

14-37 NRS,

14-38 the administrator shall impose an administrative fine of $1,000 for each

14-39 initial violation, or a fine of $10,000 for a second or subsequent violation.

14-40 2. Except as otherwise provided in chapters 616A to 616D, inclusive,

14-41 or chapter 617 of NRS, if the administrator determines that an insurer,

14-42 organization for managed care, health care provider, third-party

14-43 administrator or employer has failed to comply with any provision of this

15-1 chapter or chapter 616A, 616B, 616C or 617 of NRS, or any regulation

15-2 adopted pursuant thereto, the administrator may take any of the following

15-3 actions:

15-4 (a) Issue a notice of correction for:

15-5 (1) A minor violation, as defined by regulations adopted by the

15-6 division; or

15-7 (2) A violation involving the payment of compensation in an amount

15-8 which is greater than that required by any provision of this chapter or

15-9 chapter 616A, 616B, 616C or 617 of NRS, or any regulation adopted

15-10 pursuant thereto.

15-11 The notice of correction must set forth with particularity the violation

15-12 committed and the manner in which the violation may be corrected.

15-13 [Nothing in] The provisions of this section [authorizes] do not authorize

15-14 the administrator to modify or negate in any manner a determination or any

15-15 portion of a determination made by a hearing officer, appeals officer or

15-16 court of competent jurisdiction or a provision contained in a written

15-17 settlement agreement or written stipulation.

15-18 (b) Impose an administrative fine for:

15-19 (1) A second or subsequent violation for which a notice of correction

15-20 has been issued pursuant to paragraph (a); or

15-21 (2) Any other violation of this chapter or chapter 616A, 616B, 616C

15-22 or 617 of NRS, or any regulation adopted pursuant thereto, for which a

15-23 notice of correction may not be issued pursuant to paragraph (a).

15-24 The fine imposed may not be greater than $250 for an initial violation, or

15-25 more than $1,000 for any second or subsequent violation.

15-26 (c) Order a plan of corrective action to be submitted to the administrator

15-27 within 30 days after the date of the order.

15-28 3. [If] Unless a claimant has notified the administrator that,

15-29 pursuant to subsection 3 of section 11 of this act, he is pursuing a cause

15-30 of action against an insurer or third-party administrator and waiving his

15-31 right to receive a benefit penalty, if the administrator determines that a

15-32 violation of any of the provisions of paragraphs (a) to (d), inclusive, of

15-33 subsection 1 has occurred, the administrator shall order the insurer,

15-34 organization for managed care, health care provider, third-party

15-35 administrator or employer to pay to the claimant a benefit penalty in an

15-36 amount equal to 50 percent of the compensation due or $10,000, whichever

15-37 is less. In no event may a benefit penalty be less than $500. The benefit

15-38 penalty is for the benefit of the claimant and , except as otherwise provided

15-39 in this subsection, must be paid directly to him within 10 days after the

15-40 date of the administrator’s determination. If the claimant has, pursuant to

15-41 section 11 of this act, brought an action against an insurer or third-party

15-42 administrator who is subject to an order of the administrator pursuant to

16-1 this section, the insurer or third-party administrator is not required to

16-2 pay the penalty to the claimant if the claimant:

16-3 (a) Refuses to deliver a written waiver pursuant to subsection 2 of

16-4 section 11 of this act; or

16-5 (b) Delivers to the insurer or third-party administrator a written

16-6 refusal to accept the benefit penalty pursuant to subsection 4 of section

16-7 11 of this act.

16-8 Proof of the payment of the benefit penalty , the claimant’s refusal to

16-9 deliver a written waiver or the claimant’s refusal to accept the benefit

16-10 penalty must be submitted to the administrator within 10 days after the date

16-11 of his determination unless an appeal is filed pursuant to NRS 616D.140.

16-12 Any compensation to which the claimant may otherwise be entitled

16-13 pursuant to chapters 616A to 616D, inclusive, or chapter 617 of NRS must

16-14 not be reduced by the amount of any benefit penalty received pursuant to

16-15 this subsection.

16-16 4. In addition to any fine or benefit penalty imposed pursuant to this

16-17 section, the administrator may assess against an insurer who violates any

16-18 regulation concerning the reporting of claims expenditures used to calculate

16-19 an assessment an administrative penalty of up to twice the amount of any

16-20 underpaid assessment.

16-21 5. If:

16-22 (a) The administrator determines that a person has violated any of the

16-23 provisions of NRS 616D.200, 616D.220, 616D.240, 616D.300, 616D.310

16-24 or 616D.350 to 616D.440, inclusive; and

16-25 (b) The fraud control unit for industrial insurance established pursuant

16-26 to NRS 228.420 notifies the administrator that the unit will not prosecute

16-27 the person for that violation,

16-28 the administrator shall impose an administrative fine of not more than

16-29 $10,000.

16-30 6. Two or more fines of $1,000 or more imposed in 1 year for acts

16-31 enumerated in subsection 1 must be considered by the commissioner as

16-32 evidence for the withdrawal of:

16-33 (a) A certificate to act as a self-insured employer.

16-34 (b) A certificate to act as an association of self-insured public or private

16-35 employers.

16-36 (c) A certificate of registration as a third-party administrator.

16-37 7. The commissioner may, without complying with the provisions of

16-38 NRS 616B.327 or 616B.431, withdraw the certification of a self-insured

16-39 employer, association of self-insured public or private employers or third-

16-40 party administrator if, after a hearing, it is shown that the self-insured

16-41 employer, association of self-insured public or private employers or third-

16-42 party administrator violated any provision of subsection 1.

17-1 Sec. 16. NRS 616D.140 is hereby amended to read as follows:

17-2 616D.140 1. If a person wishes to contest a decision of the

17-3 administrator to impose an administrative fine or benefit penalty pursuant

17-4 to this chapter or chapter 616A, 616B, 616C or 617 of NRS, he must file a

17-5 notice of appeal with the division within 10 days after receipt of the

17-6 administrator’s decision, showing why the proposed fine or benefit penalty

17-7 should not be imposed.

17-8 2. If a notice of appeal is filed as required by subsection 1, the

17-9 administrator shall, in accordance with the provisions of NRS 233B.121,

17-10 issue a notice of hearing that must include a date for a hearing on the

17-11 matter, which must be no sooner than 30 days after the notice of appeal is

17-12 filed. The administrator may grant a continuance of the hearing upon a

17-13 showing of good cause.

17-14 3. [If] Except as otherwise provided in this subsection, if a notice of

17-15 appeal is not filed as required by this section, the imposition of the fine or

17-16 benefit penalty shall be deemed a final order and is not subject to review by

17-17 any court or agency. If the claimant on whose behalf a benefit penalty is

17-18 imposed:

17-19 (a) Refused to deliver to an insurer or third-party administrator a

17-20 written waiver pursuant to subsection 2 of section 11 of this act; or

17-21 (b) Delivered a written refusal to accept the benefit penalty pursuant

17-22 to subsection 4 of section 11 of this act,

17-23 the imposition of a benefit penalty against the insurer or third-party

17-24 administrator shall not be deemed a final order pursuant to this

17-25 subsection.

17-26 4. Except as otherwise provided in NRS 616B.086, a hearing held

17-27 pursuant to this section must be conducted by the administrator or a person

17-28 designated by him. A record of the hearing must be kept but it need not be

17-29 transcribed unless it is requested by the person against whom the order or

17-30 notice of violation has been issued and that person pays the cost of

17-31 transcription. The administrator shall render a written decision on the

17-32 appeal.

17-33 5. An administrative fine imposed pursuant to this chapter or chapter

17-34 616A, 616B, 616C or 617 of NRS must be paid to the division. If the

17-35 violation for which the fine is levied was committed by a person while

17-36 acting within the course and scope of his agency or employment, the fine

17-37 must be paid by his principal or employer. The fine may be recovered in a

17-38 civil action brought in the name of the division in a court of competent

17-39 jurisdiction in the county in which the violation occurred or in which the

17-40 person against whom the fine is levied has his principal place of business.

18-1 6. [A] Except as otherwise provided in subsection 3 of NRS

18-2 616D.120, a benefit penalty imposed pursuant to NRS 616D.120 must be

18-3 paid to the claimant on whose behalf it is imposed. If such payment is not

18-4 made within the period required by NRS 616D.120 [,] and the insurer or

18-5 third-party administrator cannot demonstrate that the claimant refused

18-6 to deliver a written waiver or delivered a written refusal to accept the

18-7 benefit penalty pursuant to subsection 2 or 4 of section 11 of this act, the

18-8 benefit penalty may be recovered in a civil action brought by the

18-9 administrator on behalf of the claimant in a court of competent jurisdiction

18-10 in the county in which the claimant resides, in which the violation occurred

18-11 or in which the person who is required to pay the benefit penalty has his

18-12 principal place of business.

18-13 7. Any party aggrieved by a decision of the administrator rendered

18-14 pursuant to this section may appeal the decision directly to the district

18-15 court.

18-16 Sec. 17. NRS 617.366 is hereby amended to read as follows:

18-17 617.366 1. [An employee is not entitled to compensation pursuant to

18-18 the provisions of this chapter if:

18-19 (a) He has] The resulting condition of an employee who:

18-20 (a) Has a preexisting condition from a cause or origin that did not arise

18-21 out of and in the course of his current or past employment; and

18-22 (b) [He subsequently] Subsequently contracts an occupational disease

18-23 which aggravates, precipitates or accelerates his preexisting condition,

18-24 shall be deemed to be an injury by accident that is compensable pursuant

18-25 to the provisions of chapters 616A to 616D, inclusive, of NRS, unless

18-26 [information from a physician or chiropractor establishes to the satisfaction

18-27 of] the insurer can prove by clear and convincing evidence that the

18-28 [occupational disease] preexisting condition is the primary cause of the

18-29 resulting condition.

18-30 2. [An employee is not entitled to compensation pursuant to the

18-31 provisions of this chapter if:

18-32 (a) He contracts] The resulting condition of an employee who:

18-33 (a) Contracts an occupational disease; and

18-34 (b) [He subsequently] Subsequently aggravates, precipitates or

18-35 accelerates the occupational disease in a manner that does not arise out of

18-36 and in the course of his employment,

18-37 shall be deemed to be an injury by accident that is compensable pursuant

18-38 to the provisions of chapters 616A to 616D, inclusive, of NRS, unless the

18-39 [occupational disease] insurer can prove by clear and convincing

18-40 evidence that the effect described in paragraph (b) is the primary cause of

18-41 the resulting condition.

19-1 Sec. 18. NRS 617.510 is hereby amended to read as follows:

19-2 617.510 Except as otherwise provided in NRS 617.017, and section 11

19-3 of this act, no penalty or remedy provided in this chapter is exclusive of

19-4 any other penalty or remedy, but is cumulative and in addition to every

19-5 other penalty or remedy and may be exercised without exhausting and

19-6 without regard to any other penalty or remedy provided by this chapter or

19-7 any other statute.

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