Assembly Bill No. 206–Assemblymen Pierce, Manendo, Giunchigliani, Chowning, Leslie, Arberry, Atkinson, Buckley, Claborn, Conklin, Goldwater, Hardy, Horne, Koivisto, Mabey, McClain, McCleary, Oceguera, Ohrenschall, Parks, Sherer and Weber

 

February 27, 2003

____________

 

Referred to Committee on Commerce and Labor

 

SUMMARY—Revises provisions relating to payment for permanent total disabilities. (BDR 53‑1103)

 

FISCAL NOTE:  Effect on Local Government: No.

                           Effect on the State: No.

 

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EXPLANATION – Matter in bolded italics is new; matter between brackets [omitted material] is material to be omitted.

 

AN ACT relating to industrial insurance; revising provisions governing deductions from compensation for a permanent total disability; prohibiting the recovery by an insurer of more than the actual amount of a lump sum paid to an employee for a permanent partial disability when the employee is compensated for a permanent total disability; authorizing an employee to repay in a single payment the actual amount of a lump sum paid to an employee for a permanent partial disability; requiring insurers to refund to certain employees the amounts the employees overpaid when repaying lump sums for permanent partial disabilities; 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 616C.440 is hereby amended to read as

1-2  follows:

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

1-4  NRS 616C.175, every employee in the employ of an employer,

2-1  within the provisions of chapters 616A to 616D, inclusive, of NRS,

2-2  who is injured by accident arising out of and in the course of

2-3  employment, or his dependents as defined in chapters 616A to

2-4  616D, inclusive, of NRS, is entitled to receive the following

2-5  compensation for permanent total disability:

2-6  (a) In cases of total disability adjudged to be permanent,

2-7  compensation per month of 66 2/3 percent of the average monthly

2-8  wage.

2-9  (b) If there is a previous disability, as the loss of one eye, one

2-10  hand, one foot or any other previous permanent disability, the

2-11  percentage of disability for a subsequent injury must be determined

2-12  by computing the percentage of the entire disability and deducting

2-13  therefrom the percentage of the previous disability as it existed at

2-14  the time of the subsequent injury, but such a deduction for a

2-15  previous award for permanent partial disability must be made in a

2-16  reasonable manner and must not be more than the total amount

2-17  which was paid for the previous award for permanent partial

2-18  disability. The total amount of the allowable deduction includes,

2-19  without limitation, compensation for a permanent partial disability

2-20  that was deducted from:

2-21          (1) Any compensation the employee received for a

2-22  temporary total disability; or

2-23          (2) Any other compensation received by the employee.

2-24      (c) If the character of the injury is such as to render the

2-25  employee so physically helpless as to require the service of a

2-26  constant attendant, an additional allowance may be made so long as

2-27  such requirements continue, but the allowance may not be made

2-28  while the employee is receiving benefits for care in a hospital or

2-29  facility for intermediate care pursuant to the provisions of

2-30  NRS 616C.265.

2-31      2.  Except as otherwise provided in NRS 616B.028 and

2-32  616B.029, an injured employee or his dependents are not entitled to

2-33  accrue or be paid any benefits for a permanent total disability during

2-34  the time the injured employee is incarcerated. The injured employee

2-35  or his dependents are entitled to receive [such] those benefits when

2-36  the injured employee is released from incarceration if he is certified

2-37  as permanently totally disabled by a physician or chiropractor.

2-38      3.  An employee is entitled to receive compensation for a

2-39  permanent total disability only so long as the permanent total

2-40  disability continues to exist. The insurer has the burden of proving

2-41  that the permanent total disability no longer exists.

2-42      4.  If an employee who has received compensation in a lump

2-43  sum for a permanent partial disability pursuant to NRS 616C.495 is

2-44  subsequently determined to be permanently and totally disabled, the

3-1  [compensation for the permanent total disability must be reduced as

3-2  follows:

3-3  (a) If the employee has not received a minimum lump sum, the

3-4  insurer of the employee’s employer shall deduct from the

3-5  compensation for the permanent total disability an amount equal to

3-6  the monthly installment rate for awards for permanent partial

3-7  disability until the insurer has deducted an amount that equals the

3-8  amount it has already paid out as a lump sum; or

3-9  (b) If the employee received a minimum lump sum, the] insurer

3-10  of the employee’s employer shall recover pursuant to this

3-11  subsection the actual amount of the lump sum paid to the

3-12  employee for the permanent partial disability. The insurer shall

3-13  not recover from the employee, whether by deductions or single

3-14  payment, or a combination of both, more than the actual amount

3-15  of the lump sum paid to the employee. To recover the actual

3-16  amount of the lump sum, the insurer shall:

3-17      (a) Unless the employee submits a request described in

3-18  paragraph (b), deduct from the compensation for the permanent

3-19  total disability an amount [of] that is not more than 10 percent of the

3-20  rate of compensation for a permanent total disability until the actual

3-21  amount of the lump sum paid to the employee for the permanent

3-22  partial disability is recovered [.

3-23  The provisions of this subsection are retroactive for all claims for

3-24  compensation for a permanent total disability remaining open on

3-25  January 1, 2000.] ; or

3-26      (b) Upon the request of the employee, accept in a single

3-27  payment from the employee an amount that is equal to the actual

3-28  amount of the lump sum paid to the employee for the permanent

3-29  partial disability, less the actual amount of all deductions made to

3-30  date by the insurer from the employee for repayment of the lump

3-31  sum.

3-32      Sec. 2.  1.  Each insurer who, pursuant to subsection 4 of NRS

3-33  616C.440, made a deduction from any compensation paid for a

3-34  permanent total disability on a claim that was open on or after

3-35  January 1, 2000, and before July 1, 2003, shall, as soon as

3-36  practicable on or after July 1, 2003, recalculate the amount of the

3-37  lump sum required to be repaid by the employee pursuant to the

3-38  amendatory provisions of subsection 4 of section 1 of this act. In

3-39  making the recalculation, the insurer shall determine the total of all

3-40  of the actual amounts of all deductions made from the compensation

3-41  paid to the employee pursuant to subsection 1 or 4 of NRS

3-42  616C.440 for the permanent total disability and subtract that amount

3-43  from the actual amount of the lump sum paid to the employee for

3-44  the permanent partial disability. The resulting amount is the

3-45  maximum amount that the insurer may require the employee to

4-1  repay for the lump sum for the permanent partial disability. Upon

4-2  completing the recalculation required pursuant to this subsection,

4-3  the insurer shall notify each employee for whom a recalculation was

4-4  made of the results of the recalculation, including, without

4-5  limitation, the actual amounts of all deductions and lump sums and

4-6  the method or manner of recalculation.

4-7  2.  If, after making a recalculation pursuant to subsection 1, an

4-8  insurer determines that an employee has repaid an amount that is

4-9  more than the actual amount of the lump sum paid to the employee

4-10  for the permanent partial disability, the insurer shall immediately

4-11  refund the amount of the overpayment to the employee.

4-12      3.  If an insurer determines that an employee is entitled to a

4-13  refund pursuant to subsection 2, and if the employee’s claim is

4-14  closed on or before the date the insurer makes the determination, the

4-15  insurer shall:

4-16      (a) To the greatest extent practicable, locate the employee or, if

4-17  the employee is deceased, the administrator or executor of the estate

4-18  of the employee, if any; and

4-19      (b) Deliver the refund to the employee, administrator or

4-20  executor.

4-21      4.  If an insurer is unable to deliver a refund pursuant to

4-22  subsection 3, the insurer shall submit a written notice to the Division

4-23  of Industrial Relations of the Department of Business and Industry.

4-24  The written notice must be submitted within 10 days after the

4-25  insurer determines it is unable to deliver the refund and must

4-26  include, without limitation:

4-27      (a) The name of the employee; and

4-28      (b) A statement indicating that:

4-29          (1) The employee is entitled to a refund pursuant to

4-30  subsection 2; and

4-31          (2) The insurer was unable to deliver the refund pursuant to

4-32  subsection 3.

4-33      Sec. 3.  This act becomes effective on July 1, 2003.

 

4-34  H