Senate Bill No. 95–Committee on Commerce and Labor

(On Behalf of Legislative Committee on Workers’ Compensation)

February 3, 1999

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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.

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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; 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; requiring that a test of an injured employee for the presence of alcohol or a controlled substance be performed by a laboratory that is licensed by the health division of the department of human resources; 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, permanent total disability,

1-6 permanent partial disability or rehabilitation maintenance benefits must

1-7 include a restrictive endorsement that is substantially similar to the

1-8 following statement:

2-1 By endorsing this check for temporary total disability, temporary

2-2 partial disability, permanent total disability, permanent partial disability

2-3 or rehabilitation maintenance benefits, I certify under penalty of

2-4 imposition of a fine or imprisonment, or both, that I am entitled to the

2-5 benefits for workers’ compensation represented by this check, that the

2-6 circumstances which entitled me to benefits for workers’ compensation

2-7 have not changed since my claim was accepted or since I received the last

2-8 payment and that no false statements or representations have been made

2-9 to obtain these benefits.

2-10 2. For the purposes of chapters 616A to 616D, inclusive, or chapter

2-11 617 of NRS, the issuance, endorsement or negotiation of a check

2-12 described in subsection 1 creates a rebuttable presumption that the

2-13 person named on the check received, endorsed or negotiated the check.

2-14 Sec. 2. NRS 616C.175 is hereby amended to read as follows:

2-15 616C.175 1. An employee is not entitled to compensation pursuant to

2-16 the provisions of chapters 616A to 616D, inclusive, of NRS if:

2-17 (a) He has a preexisting condition from a cause or origin that did not

2-18 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

2-21 his] that affects the same parts or functions of the body as the preexisting

2-22 condition,

2-23 unless information from a physician or chiropractor establishes to the

2-24 satisfaction of the insurer that the subsequent injury [is the primary cause]

2-25 contributed more to the development of the resulting condition [.] than the

2-26 preexisting condition.

2-27 2. An employee is not entitled to compensation pursuant to the

2-28 provisions of chapters 616A to 616D, inclusive, of NRS if:

2-29 (a) He sustains an injury by accident arising out of and in the course of

2-30 his employment; and

2-31 (b) He subsequently aggravates, precipitates or accelerates the injury in

2-32 a manner that does not arise out of and in the course of his employment,

2-33 unless the injury described in paragraph (a) [is the primary cause]

2-34 contributed more to the development of the resulting condition [.] than the

2-35 effect described in paragraph (b).

2-36 Sec. 3. NRS 616C.230 is hereby amended to read as follows:

2-37 616C.230 1. Compensation is not payable pursuant to the provisions

2-38 of chapters 616A to 616D, inclusive, of NRS for an injury:

2-39 (a) Caused by the employee’s willful intention to injure himself.

2-40 (b) Caused by the employee’s willful intention to injure another.

3-1 (c) Proximately caused by the employee’s intoxication. If the employee

3-2 was intoxicated at the time of his injury, intoxication must be presumed to

3-3 be a proximate cause unless rebutted by evidence to the contrary.

3-4 (d) Proximately caused by the employee’s use of a controlled substance.

3-5 If the employee had any amount of a controlled substance in his system at

3-6 the time of his injury for which the employee did not have a current and

3-7 lawful prescription issued in his name, the controlled substance must be

3-8 presumed to be a proximate cause unless rebutted by evidence to the

3-9 contrary.

3-10 2. For the purposes of paragraphs (c) and (d) of subsection 1:

3-11 (a) The affidavit or declaration of an expert or other person described in

3-12 NRS 50.315 is admissible to prove the existence of any alcohol or the

3-13 existence, quantity or identity of a controlled substance in an employee’s

3-14 system. If the affidavit or declaration is to be so used, it must be submitted

3-15 in the manner prescribed in NRS 616C.355.

3-16 (b) When an examination requested or ordered includes testing for the

3-17 use of alcohol or a controlled substance , [:

3-18 (1) If] the laboratory that conducts the testing [is located in a county

3-19 whose population is 100,000 or more and the testing is of urine, the

3-20 laboratory] must be [certified for forensic testing of urine for drugs by the

3-21 College of American Pathologists or a successor organization or by the

3-22 federal Department of Health and Human Services; and

3-23 (2) Any such testing of breath for alcohol must be performed pursuant

3-24 to the regulations of the federal Department of Transportation.] licensed

3-25 pursuant to the provisions of chapter 652 of NRS.

3-26 3. No compensation is payable for the death, disability or treatment of

3-27 an employee if his death is caused by, or insofar as his disability is

3-28 aggravated, caused or continued by, an unreasonable refusal or neglect to

3-29 submit to or to follow any competent and reasonable surgical treatment or

3-30 medical aid.

3-31 4. If any employee persists in an unsanitary or injurious practice that

3-32 imperils or retards his recovery, or refuses to submit to such medical or

3-33 surgical treatment as is necessary to promote his recovery, his

3-34 compensation may be reduced or suspended.

3-35 5. An injured employee’s compensation, other than accident benefits,

3-36 must be suspended if:

3-37 (a) A physician or chiropractor determines that the employee is unable

3-38 to undergo treatment, testing or examination for the industrial injury solely

3-39 because of a condition or injury that did not arise out of and in the course

3-40 of his employment; and

4-1 (b) It is within the ability of the employee to correct the nonindustrial

4-2 condition or injury.

4-3 The compensation must be suspended until the injured employee is able to

4-4 resume treatment, testing or examination for the industrial injury. The

4-5 insurer may elect to pay for the treatment of the nonindustrial condition or

4-6 injury.

4-7 Sec. 4. NRS 616C.435 is hereby amended to read as follows:

4-8 616C.435 1. In cases of the following specified injuries, in the

4-9 absence of proof to the contrary, the disability caused thereby shall be

4-10 deemed total and permanent:

4-11 (a) The total and permanent loss of sight of both eyes.

4-12 (b) The loss by separation of both legs at or above the knee.

4-13 (c) The loss by separation of both arms at or above the elbow.

4-14 (d) An injury to the spine resulting in permanent and complete paralysis

4-15 of both legs or both arms, or one leg and one arm.

4-16 (e) An injury to the skull resulting in incurable imbecility or insanity.

4-17 (f) The loss by separation of one arm at or above the elbow, and one leg

4-18 by separation at or above the knee.

4-19 2. The enumeration in subsection 1 is not exclusive . [, and in all other]

4-20 In all cases not specified in subsection 1, an insurer shall determine

4-21 whether the disability of an injured employee is a permanent total

4-22 disability [must be determined by the insurer] in accordance with the facts

4-23 presented [.] and the provisions of this subsection. An insurer shall not

4-24 determine that a disability of an injured employee is a permanent total

4-25 disability unless information submitted by a physician or chiropractor

4-26 establishes to the satisfaction of the insurer that the industrial injury or

4-27 occupational disease contributed more to the impairment of his earning

4-28 capacity or ability to retain or obtain employment than all other

4-29 conditions or characteristics of the injured employee.

4-30 Sec. 5. NRS 616C.490 is hereby amended to read as follows:

4-31 616C.490 1. Except as otherwise provided in NRS 616C.175, every

4-32 employee, in the employ of an employer within the provisions of chapters

4-33 616A to 616D, inclusive, of NRS, who is injured by an accident arising out

4-34 of and in the course of employment is entitled to receive the compensation

4-35 provided for permanent partial disability. As used in this section,

4-36 "disability" and "impairment of the whole man" are equivalent terms.

4-37 2. Within 30 days after receiving from a physician or chiropractor a

4-38 report indicating that the injured employee may have suffered a permanent

4-39 disability and is stable and ratable, the insurer shall schedule an

4-40 appointment with a rating physician or chiropractor to determine the extent

4-41 of the employee’s disability. The insurer shall select a physician or

4-42 chiropractor from a group of rating physicians and chiropractors designated

4-43 by the administrator, to determine the percentage of disability in

5-1 accordance with the American Medical Association’s Guides to the

5-2 Evaluation of Permanent Impairment as adopted and supplemented by the

5-3 division pursuant to NRS 616C.110. Rating physicians and chiropractors

5-4 must be selected in rotation from the list of qualified physicians and

5-5 chiropractors designated by the administrator, according to their area of

5-6 specialization and the order in which their names appear on the list.

5-7 3. At the request of the insurer, the injured employee shall, before an

5-8 evaluation by a rating physician or chiropractor is performed, notify the

5-9 insurer of:

5-10 (a) Any previous evaluations performed to determine the extent of any

5-11 of the employee’s disabilities; and

5-12 (b) Any previous injury, disease or condition sustained by the employee

5-13 which is relevant to the evaluation performed pursuant to this section.

5-14 The notice must be on a form approved by the administrator and provided

5-15 to the injured employee by the insurer at the time of the insurer’s request.

5-16 4. Unless the regulations adopted pursuant to NRS 616C.110 provide

5-17 otherwise, a rating evaluation must include an evaluation of the loss of

5-18 motion, sensation and strength of an injured employee if the injury is of a

5-19 type that might have caused such a loss. A rating evaluation conducted

5-20 pursuant to this section:

5-21 (a) Must be based upon objective medical findings; and

5-22 (b) Must not be based upon subjective pain.

5-23 No factors other than the degree of physical impairment of the whole man

5-24 may be considered in calculating the entitlement to compensation for a

5-25 permanent partial disability.

5-26 5. The rating physician or chiropractor shall provide the insurer with

5-27 his evaluation of the injured employee. After receiving the evaluation, the

5-28 insurer shall, within 14 days, provide the employee with a copy of the

5-29 evaluation and notify the employee:

5-30 (a) Of the compensation to which he is entitled pursuant to this section;

5-31 or

5-32 (b) That he is not entitled to benefits for permanent partial disability.

5-33 6. Each 1 percent of impairment of the whole man must be

5-34 compensated by a monthly payment:

5-35 (a) Of 0.5 percent of the claimant’s average monthly wage for injuries

5-36 sustained before July 1, 1981;

5-37 (b) Of 0.6 percent of the claimant’s average monthly wage for injuries

5-38 sustained on or after July 1, 1981, and before June 18, 1993; and

5-39 (c) Of 0.54 percent of the claimant’s average monthly wage for injuries

5-40 sustained on or after June 18, 1993.

5-41 Compensation must commence on the date of the injury or the day

5-42 following the termination of temporary disability compensation, if any,

6-1 whichever is later, and must continue on a monthly basis for 5 years or until

6-2 the claimant is 70 years of age, whichever is later.

6-3 7. Compensation benefits may be paid annually to claimants who will

6-4 be receiving less than $100 a month.

6-5 8. Where there is a previous disability, as the loss of one eye, one hand,

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

6-7 disability for a subsequent injury must be determined by computing the

6-8 percentage of the entire disability and deducting therefrom the percentage

6-9 of the previous disability as it existed at the time of the subsequent injury.

6-10 9. The division may adopt schedules for rating permanent disabilities

6-11 resulting from injuries sustained before July 1, 1973, and reasonable

6-12 regulations to carry out the provisions of this section.

6-13 10. The increase in compensation and benefits effected by the

6-14 amendment of this section is not retroactive for accidents which occurred

6-15 before July 1, 1973.

6-16 11. This section does not entitle any person to double payments for the

6-17 death of an employee and a continuation of payments for a permanent

6-18 partial disability, or to a greater sum in the aggregate than if the injury had

6-19 been fatal.

6-20 Sec. 6. NRS 616C.505 is hereby amended to read as follows:

6-21 616C.505 If an injury by accident arising out of and in the course of

6-22 employment causes the death of an employee in the employ of an employer,

6-23 within the provisions of chapters 616A to 616D, inclusive, of NRS, the

6-24 compensation is known as a death benefit, and is payable as follows:

6-25 1. In addition to any other compensation payable pursuant to chapters

6-26 616A to 616D, inclusive, of NRS, burial expenses are payable in an amount

6-27 not to exceed $5,000. When the remains of the deceased employee and the

6-28 person accompanying the remains are to be transported to a mortuary or

6-29 mortuaries, the charge of transportation must be borne by the insurer . [if

6-30 the transportation is not beyond the continental limits of the United States.]

6-31 2. To the surviving spouse of the deceased employee, 66 2/3 percent of

6-32 the average monthly wage is payable until his death or remarriage, with 2

6-33 years’ compensation payable in one lump sum upon remarriage.

6-34 3. In the event of the subsequent death of the surviving spouse:

6-35 (a) Each surviving child of the deceased employee must share equally

6-36 the compensation theretofore paid to the surviving spouse but not in excess

6-37 thereof, and it is payable until the youngest child reaches the age of 18

6-38 years.

6-39 (b) Except as otherwise provided in subsection 11, if the children have a

6-40 guardian, the compensation they are entitled to receive may be paid to the

6-41 guardian.

7-1 4. Upon the remarriage of a surviving spouse with children:

7-2 (a) The surviving spouse must be paid 2 years’ compensation in one

7-3 lump sum and further benefits must cease; and

7-4 (b) Each child must be paid 15 percent of the average monthly wage, up

7-5 to a maximum family benefit of 66 2/3 percent of the average monthly

7-6 wage.

7-7 5. If there are any surviving children of the deceased employee under

7-8 the age of 18 years, but no surviving spouse, then each such child is entitled

7-9 to his proportionate share of 66 2/3 percent of the average monthly wage

7-10 for his support.

7-11 6. Except as otherwise provided in subsection 7, if there is no surviving

7-12 spouse or child under the age of 18 years, there must be paid:

7-13 (a) To a parent, if wholly dependent for support upon the deceased

7-14 employee at the time of the injury causing his death, 33 1/3 percent of the

7-15 average monthly wage.

7-16 (b) To both parents, if wholly dependent for support upon the deceased

7-17 employee at the time of the injury causing his death, 66 2/3 percent of the

7-18 average monthly wage.

7-19 (c) To each brother or sister until he or she reaches the age of 18 years,

7-20 if wholly dependent for support upon the deceased employee at the time of

7-21 the injury causing his death, his proportionate share of 66 2/3 percent of the

7-22 average monthly wage.

7-23 7. The aggregate compensation payable pursuant to subsection 6 must

7-24 not exceed 66 2/3 percent of the average monthly wage.

7-25 8. In all other cases involving a question of total or partial dependency:

7-26 (a) The extent of the dependency must be determined in accordance with

7-27 the facts existing at the time of the injury.

7-28 (b) If the deceased employee leaves dependents only partially dependent

7-29 upon his earnings for support at the time of the injury causing his death, the

7-30 monthly compensation to be paid must be equal to the same proportion of

7-31 the monthly payments for the benefit of persons totally dependent as the

7-32 amount contributed by the deceased employee to the partial dependents

7-33 bears to the average monthly wage of the deceased employee at the time of

7-34 the injury resulting in his death.

7-35 (c) The duration of compensation to partial dependents must be fixed in

7-36 accordance with the facts shown, but may not exceed compensation for 100

7-37 months.

7-38 9. Compensation payable to a surviving spouse is for the use and

7-39 benefit of the surviving spouse and the dependent children, and the insurer

7-40 may, from time to time, apportion such compensation between them in such

7-41 a way as it deems best for the interest of all dependents.

8-1 10. In the event of the death of any dependent specified in this section

8-2 before the expiration of the time during which compensation is payable to

8-3 him, funeral expenses are payable in an amount not to exceed $5,000.

8-4 11. If a dependent is entitled to receive a death benefit pursuant to this

8-5 section and is less than 18 years of age or incompetent, the legal

8-6 representative of the dependent shall petition for a guardian to be appointed

8-7 for that dependent pursuant to NRS 159.044. An insurer shall not pay any

8-8 compensation in excess of $3,000, other than burial expenses, to the

8-9 dependent until a guardian is appointed and legally qualified. Upon receipt

8-10 of a certified letter of guardianship, the insurer shall make all payments

8-11 required by this section to the guardian of the dependent until the

8-12 dependent is emancipated, the guardianship terminates or the dependent

8-13 reaches the age of 18 [,] years, whichever occurs first, unless paragraph (a)

8-14 of subsection 12 is applicable. The fees and costs related to the

8-15 guardianship must be paid from the estate of the dependent. A guardianship

8-16 established pursuant to this subsection must be administered in accordance

8-17 with chapter 159 of NRS, except that after the first annual review required

8-18 pursuant to NRS 159.176, a court may elect not to review the guardianship

8-19 annually. The court shall review the guardianship at least once every 3

8-20 years. As used in this subsection, "incompetent" has the meaning ascribed

8-21 to it in NRS 159.019.

8-22 12. Except as otherwise provided in paragraphs (a) and (b), the

8-23 entitlement of any child to receive his proportionate share of compensation

8-24 pursuant to this section ceases when he dies, marries or reaches the age of

8-25 18 years. A child is entitled to continue to receive compensation pursuant

8-26 to this section if he is:

8-27 (a) Over 18 years of age and incapable of supporting himself, until such

8-28 time as he becomes capable of supporting himself; or

8-29 (b) Over 18 years of age and enrolled as a full-time student in an

8-30 accredited vocational or educational institution, until he reaches the age of

8-31 22 years.

8-32 13. As used in this section, "surviving spouse" means a surviving

8-33 husband or wife who was married to the employee at the time of the

8-34 employee’s death.

8-35 Sec. 7. NRS 616D.300 is hereby amended to read as follows:

8-36 616D.300 Unless a different penalty is provided pursuant to NRS

8-37 616D.370 to 616D.410, inclusive, a person who knowingly makes a false

8-38 statement or representation, including, but not limited to, a false statement

8-39 or representation relating to his identity or the identity of another person, or

8-40 who knowingly conceals a material fact to obtain or attempt to obtain any

8-41 benefit, including a controlled substance, or payment under the provisions

8-42 of this chapter or chapter 616A, 616B , [or] 616C or 617 of NRS, either for

8-43 himself or for any other person, shall be punished as follows:

9-1 1. If the amount of the benefit or payment obtained or attempted to be

9-2 obtained was less than $250, for a misdemeanor.

9-3 2. If the amount of the benefit or payment obtained or attempted to be

9-4 obtained was $250 or more, for a category D felony as provided in NRS

9-5 193.130.

9-6 In addition to any other penalty, the court shall order the person to pay

9-7 restitution.

9-8 Sec. 8. NRS 617.366 is hereby amended to read as follows:

9-9 617.366 1. An employee is not entitled to compensation pursuant to

9-10 the provisions of this chapter if:

9-11 (a) He has a preexisting condition from a cause or origin that did not

9-12 arise out of and in the course of his current or past employment; and

9-13 (b) He subsequently contracts an occupational disease [which

9-14 aggravates, precipitates or accelerates his] that affects the same parts or

9-15 functions of the body as the preexisting condition,

9-16 unless information from a physician or chiropractor establishes to the

9-17 satisfaction of the insurer that the occupational disease [is the primary

9-18 cause] contributed more to the development of the resulting condition [.]

9-19 than the preexisting condition.

9-20 2. An employee is not entitled to compensation pursuant to the

9-21 provisions of this chapter if:

9-22 (a) He contracts an occupational disease; and

9-23 (b) He subsequently aggravates, precipitates or accelerates the

9-24 occupational disease in a manner that does not arise out of and in the

9-25 course of his employment,

9-26 unless the occupational disease [is the primary cause] described in

9-27 paragraph (a) contributed more to the development of the resulting

9-28 condition [.] than the effect described in paragraph (b).

9-29 Sec. 9. 1. This section and sections 1 and 2 and 4 to 8, inclusive, of

9-30 this act become effective on July 1, 1999.

9-31 2. Section 3 of this act becomes effective at 12:01 a.m. on July 1, 1999.

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