SB95

Senate Bill No. 95–Committee on Commerce and Labor

(On Behalf of Legislative Committee on Workers’ Compensation)

February 3, 1999

____________

Referred to Committee on Commerce and Labor

SUMMARY—Makes various changes to provisions relating to provision of benefits for

industrial insurance. (BDR 53-386)

FISCAL NOTE: Effect on Local Government: No.

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 a person who endorses a check that is issued by an insurer for payment of certain benefits for industrial insurance to certify that he is entitled to those benefits; revising the provisions governing the

payment of compensation if an injury or condition that is not related to employment is involved; limiting the circumstances under which an insurer may determine that a disability is a permanent total disability; requiring rating

evaluations for permanent partial disability to be based upon certain objective findings; removing the limitation on the payment of a death benefit for the transportation of the remains of a deceased employee beyond the continental

limits of the United States; 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. Chapter 616C of NRS is hereby amended by adding thereto

1-2 a new section to read as follows:

1-3 1. Each check issued by an insurer pursuant to the provisions of

1-4 chapters 616A to 616D, inclusive, or chapter 617 of NRS for temporary

1-5 total disability, temporary partial disability or permanent total disability

1-6 must include a restrictive endorsement that is substantially similar to the

1-7 following statement:

1-8 By endorsing this check for temporary total disability, temporary partial disability or permanent 1-9 total disability, I certify under

1-10 penalty of perjury that I have been continuously disabled and either

2-1 unable to work or working in a manner authorized pursuant to

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

2-3 type of benefits this check provides for the 14 days immediately

2-4 preceding the date of this check. I understand that any false

2-5 statement to obtain benefits is a crime which is punishable as a

2-6 misdemeanor or as a category D felony and requires restitution

2-7 pursuant to NRS 616D.300.

2. Each check issued by an insurer pursuant to the provisions of

2-8 chapters 616A to 616D, inclusive, or chapter 617 of NRS for

rehabilitation maintenance benefits must include a restrictive

2-9 endorsement that is substantially similar to the following statement:

By endorsing this check for rehabilitation maintenance benefits, I

2-10 certify under penalty of perjury that I have been participating in a

program of vocational rehabilitation and have not been working at a

2-11 job without the approval of my employer’s insurer for the 14 days

2-12 immediately preceding the date of this check. I understand that any

false statement to obtain benefits is a crime which is punishable as a

2-13 misdemeanor or as a category D felony and requires restitution

pursuant to NRS 616D.300.

2-14 3. For the purposes of chapters 616A to 616D, inclusive, or chapter

617 of NRS, the issuance, endorsement or negotiation of a check

2-15 described in subsection 1 or 2 creates a rebuttable presumption that the

person named on the check received, endorsed or negotiated the check.

2-16 Sec. 2. NRS 616C.175 is hereby amended to read as follows:

2-17 616C.175 1. An employee is not entitled to compensation pursuant to

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

2-18 (a) He has a preexisting condition from a cause or origin that did not

arise out of or in the course of his current or past employment; and

2-19 (b) He subsequently sustains an injury by accident arising out of and in

2-20 the course of his employment [~~which aggravates, precipitates or accelerates~~

~~his]~~ that affects the same parts or functions of the body as the preexisting

2-21 condition,

unless information from a physician or chiropractor establishes to the

2-22 satisfaction of the insurer that the subsequent injury [~~is the primary cause]~~

2-23 contributed more to the development of the resulting condition [.] than the

preexisting condition.

2-24 2. An employee is not entitled to compensation pursuant to the

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

2-25 (a) He sustains an injury by accident arising out of and in the course of

2-26 his employment; and

2-27 (b) He subsequently aggravates, precipitates or accelerates the injury in

a manner that does not arise out of and in the course of his employment,

2-28 unless the injury described in paragraph (a) [~~is the primary cause]~~

2-29 contributed more to the development of the resulting condition [.] than the

effect described in paragraph (b).

2-30 Sec. 3. NRS 616C.435 is hereby amended to read as follows:

616C.435 1. In cases of the following specified injuries, in the

2-31 absence of proof to the contrary, the disability caused thereby shall be

2-32 deemed total and permanent:

(a) The total and permanent loss of sight of both eyes.

2-33 (b) The loss by separation of both legs at or above the knee.

2-34 (d) An injury to the spine resulting in permanent and complete paralysis

2-35 of both legs or both arms, or one leg and one arm.

(e) An injury to the skull resulting in incurable imbecility or insanity.

2-36 (f) The loss by separation of one arm at or above the elbow, and one leg

by separation at or above the knee.

2-37 2. The enumeration in subsection 1 is not exclusive . [~~, and in all other]~~

2-38 In all cases not specified in subsection 1, an insurer shall determine

whether the disability of an injured employee is a permanent total

2-39 disability [~~must be determined by the insurer]~~ in accordance with the facts

presented [.] and the provisions of this subsection. An insurer shall not

2-40 determine that a disability of an injured employee is a permanent total

2-41 disability unless information submitted by a physician or chiropractor

establishes to the satisfaction of the insurer that the industrial injury or

2-42 occupational disease contributed more to the impairment of his earning

capacity or ability to retain or obtain employment than all other

2-43 conditions or characteristics of the injured employee.

2-44 Sec. 4. NRS 616C.490 is hereby amended to read as follows:

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

2-45 employee, in the employ of an employer within the provisions of chapters

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

2-46 of and in the course of employment is entitled to receive the compensation

2-47 provided for permanent partial disability. As used in this section,

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

2-48 2. Within 30 days after receiving from a physician or chiropractor a

report indicating that the injured employee may have suffered a permanent

2-49 disability and is stable and ratable, the insurer shall schedule an

2-50 appointment with a rating physician or chiropractor to determine the extent

of the employee’s disability. The insurer shall select a physician or

2-51 chiropractor from a group of rating physicians and chiropractors designated by the administrator, to determine the percentage of disability in

2-52 accordance with the American Medical Association’s Guides to the

Evaluation of Permanent Impairment as adopted and supplemented by the

3-1 division pursuant to NRS 616C.110. Rating physicians and chiropractors

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

3-2 chiropractors designated by the administrator, according to their area of

3-3 specialization and the order in which their names appear on the list.

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

3-4 evaluation by a rating physician or chiropractor is performed, notify the

insurer of:

3-5 (a) Any previous evaluations performed to determine the extent of any

3-6 of the employee’s disabilities; and

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

3-7 which is relevant to the evaluation performed pursuant to this section.

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

3-8 to the injured employee by the insurer at the time of the insurer’s request.

3-9 4. Unless the regulations adopted pursuant to NRS 616C.110 provide

otherwise, a rating evaluation must include an evaluation of the loss of

3-10 motion, sensation and strength of an injured employee if the injury is of a

type that might have caused such a loss. A rating evaluation conducted

3-11 pursuant to this section:

3-12 (a) Must be based upon objective medical findings; and

(b) Must not be based upon subjective pain.

3-13 No factors other than the degree of physical impairment of the whole man

may be considered in calculating the entitlement to compensation for a

3-14 permanent partial disability.

3-15 5. The rating physician or chiropractor shall provide the insurer with

his evaluation of the injured employee. After receiving the evaluation, the

3-16 insurer shall, within 14 days, provide the employee with a copy of the

evaluation and notify the employee:

3-17 (a) Of the compensation to which he is entitled pursuant to this section;

3-18 or

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

3-19 6. Each 1 percent of impairment of the whole man must be

compensated by a monthly payment:

3-20 (a) Of 0.5 percent of the claimant’s average monthly wage for injuries

3-21 sustained before July 1, 1981;

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

3-22 sustained on or after July 1, 1981, and before June 18, 1993; and

3-23 sustained on or after June 18, 1993.

3-24 Compensation must commence on the date of the injury or the day

following the termination of temporary disability compensation, if any, whichever is later, and must 3-25 continue on a monthly basis for 5 years or until

the claimant is 70 years of age, whichever is later.

4-1 7. Compensation benefits may be paid annually to claimants who will

be receiving less than $100 a month.

4-2 8. Where there is a previous disability, as the loss of one eye, one hand,

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

4-3 disability for a subsequent injury must be determined by computing the

4-4 percentage of the entire disability and deducting therefrom the percentage

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

4-5 9. The division may adopt schedules for rating permanent disabilities

resulting from injuries sustained before July 1, 1973, and reasonable

4-6 regulations to carry out the provisions of this section.

4-7 10. The increase in compensation and benefits effected by the

amendment of this section is not retroactive for accidents which occurred

4-8 before July 1, 1973.

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

4-9 death of an employee and a continuation of payments for a permanent

4-10 partial disability, or to a greater sum in the aggregate than if the injury had

been fatal.

4-11 Sec. 5. NRS 616C.505 is hereby amended to read as follows:

616C.505 If an injury by accident arising out of and in the course of

4-12 employment causes the death of an employee in the employ of an employer,

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

compensation is known as a death benefit, and is payable as follows:

4-14 1. In addition to any other compensation payable pursuant to chapters

616A to 616D, inclusive, of NRS, burial expenses are payable in an amount

4-15 not to exceed $5,000. When the remains of the deceased employee and the

4-16 person accompanying the remains are to be transported to a mortuary or

mortuaries, the charge of transportation must be borne by the insurer . [if

4-17 ~~the transportation is not beyond the continental limits of the United States.]~~

2. To the surviving spouse of the deceased employee, 66 2/3 percent of

4-18 the average monthly wage is payable until his death or remarriage, with 2

4-19 years’ compensation payable in one lump sum upon remarriage.

3. In the event of the subsequent death of the surviving spouse:

4-20 (a) Each surviving child of the deceased employee must share equally

the compensation theretofore paid to the surviving spouse but not in excess

4-21 thereof, and it is payable until the youngest child reaches the age of 18

4-22 years.

(b) Except as otherwise provided in subsection 11, if the children have a

4-23 guardian, the compensation they are entitled to receive may be paid to the

guardian.

4-24 4. Upon the remarriage of a surviving spouse with children:

4-25 (a) The surviving spouse must be paid 2 years’ compensation in one

lump sum and further benefits must cease; and

(b) Each child must be paid 15 percent of the average monthly wage, up

5-1 to a maximum family benefit of 66 2/3 percent of the average monthly

5-2 wage.

5. If there are any surviving children of the deceased employee under

5-3 the age of 18 years, but no surviving spouse, then each such child is entitled

to his proportionate share of 66 2/3 percent of the average monthly wage

5-4 for his support.

5-5 6. Except as otherwise provided in subsection 7, if there is no surviving

spouse or child under the age of 18 years, there must be paid:

5-6 (a) To a parent, if wholly dependent for support upon the deceased

employee at the time of the injury causing his death, 33 1/3 percent of the

5-7 average monthly wage.

5-8 (b) To both parents, if wholly dependent for support upon the deceased

employee at the time of the injury causing his death, 66 2/3 percent of the

5-9 average monthly wage.

5-10 if wholly dependent for support upon the deceased employee at the time of

5-11 the injury causing his death, his proportionate share of 66 2/3 percent of the

average monthly wage.

5-12 7. The aggregate compensation payable pursuant to subsection 6 must

not exceed 66 2/3 percent of the average monthly wage.

5-13 8. In all other cases involving a question of total or partial dependency:

5-14 (a) The extent of the dependency must be determined in accordance with

the facts existing at the time of the injury.

5-15 (b) If the deceased employee leaves dependents only partially dependent

upon his earnings for support at the time of the injury causing his death, the

5-16 monthly compensation to be paid must be equal to the same proportion of

5-17 the monthly payments for the benefit of persons totally dependent as the

amount contributed by the deceased employee to the partial dependents

5-18 bears to the average monthly wage of the deceased employee at the time of

the injury resulting in his death.

5-19 (c) The duration of compensation to partial dependents must be fixed in

5-20 accordance with the facts shown, but may not exceed compensation for 100

months.

5-21 9. Compensation payable to a surviving spouse is for the use and

benefit of the surviving spouse and the dependent children, and the insurer

5-22 may, from time to time, apportion such compensation between them in such

5-23 a way as it deems best for the interest of all dependents.

10. In the event of the death of any dependent specified in this section

5-24 before the expiration of the time during which compensation is payable to

him, funeral expenses are payable in an amount not to exceed $5,000.

6-1 11. If a dependent is entitled to receive a death benefit pursuant to this

section and is less than 18 years of age or incompetent, the legal

6-2 representative of the dependent shall petition for a guardian to be appointed

for that dependent pursuant to NRS 159.044. An insurer shall not pay any

6-3 compensation in excess of $3,000, other than burial expenses, to the

6-4 dependent until a guardian is appointed and legally qualified. Upon receipt

of a certified letter of guardianship, the insurer shall make all payments

6-5 required by this section to the guardian of the dependent until the

dependent is emancipated, the guardianship terminates or the dependent

6-6 reaches the age of 18 [,] years, whichever occurs first, unless paragraph (a)

6-7 of subsection 12 is applicable. The fees and costs related to the

guardianship must be paid from the estate of the dependent. A guardianship

6-8 established pursuant to this subsection must be administered in accordance

with chapter 159 of NRS, except that after the first annual review required

6-9 pursuant to NRS 159.176, a court may elect not to review the guardianship

6-10 annually. The court shall review the guardianship at least once every 3

years. As used in this subsection, "incompetent" has the meaning ascribed

6-11 to it in NRS 159.019.

12. Except as otherwise provided in paragraphs (a) and (b), the

6-12 entitlement of any child to receive his proportionate share of compensation

6-13 pursuant to this section ceases when he dies, marries or reaches the age of

18 years. A child is entitled to continue to receive compensation pursuant

6-14 to this section if he is:

(a) Over 18 years of age and incapable of supporting himself, until such

6-15 time as he becomes capable of supporting himself; or

6-16 (b) Over 18 years of age and enrolled as a full-time student in an

accredited vocational or educational institution, until he reaches the age of

6-17 22 years.

13. As used in this section, "surviving spouse" means a surviving

6-18 husband or wife who was married to the employee at the time of the

6-19 employee’s death.

Sec. 6. NRS 616D.300 is hereby amended to read as follows:

6-20 616D.300 Unless a different penalty is provided pursuant to NRS

616D.370 to 616D.410, inclusive, a person who knowingly makes a false

6-21 statement or representation, including, but not limited to, a false statement

6-22 or representation relating to his identity or the identity of another person, or

who knowingly conceals a material fact to obtain or attempt to obtain any

6-23 benefit, including a controlled substance, or payment under the provisions

of this chapter or chapter 616A, 616B , [~~or]~~ 616C or 617 of NRS, either for

6-24 himself or for any other person, shall be punished as follows:

6-25 1. If the amount of the benefit or payment obtained or attempted to be

obtained was less than $250, for a misdemeanor.

2. If the amount of the benefit or payment obtained or attempted to be

7-1 obtained was $250 or more, for a category D felony as provided in NRS

7-2 193.130.

In addition to any other penalty, the court shall order the person to pay

7-3 restitution.

Sec. 7. NRS 617.366 is hereby amended to read as follows:

7-4 617.366 1. An employee is not entitled to compensation pursuant to

7-5 the provisions of this chapter if:

(a) He has a preexisting condition from a cause or origin that did not

7-6 arise out of and in the course of his current or past employment; and

(b) He subsequently contracts an occupational disease [~~which~~

7-7 ~~aggravates, precipitates or accelerates his]~~ that affects the same parts or

7-8 functions of the body as the preexisting condition,

unless information from a physician or chiropractor establishes to the

7-9 satisfaction of the insurer that the occupational disease [~~is the primary~~

~~cause]~~ contributed more to the development of the resulting condition [.]

7-10 than the preexisting condition.

7-11 2. An employee is not entitled to compensation pursuant to the

provisions of this chapter if:

7-12 (a) He contracts an occupational disease; and

(b) He subsequently aggravates, precipitates or accelerates the

7-13 occupational disease in a manner that does not arise out of and in the

7-14 course of his employment,

unless the occupational disease [~~is the primary cause]~~ described in

7-15 paragraph (a) contributed more to the development of the resulting

condition [.] than the effect described in paragraph (b).

7-16 Sec. 8. This act becomes effective on July 1, 1999.