Assembly Bill No. 503

Assembly Bill No. 503-Committee on Labor and Management

May 19, 1997
____________

Referred to Committee on Labor and Management

SUMMARY--Makes various changes to provisions governing eligibility for and payment of benefits for workers' compensation. (BDR 53-953)

FISCAL NOTE: Effect on Local Government: No.

Effect on the State or on Industrial Insurance: No.

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

AN ACT relating to industrial insurance; expanding the circumstances under which an employee and his dependents are barred from recovering compensation; requiring an employee with a permanent partial disability to select his rating physician; expanding the circumstances under which an employee's use of a controlled substance is presumed to be the proximate cause of his injury; prohibiting a physician or chiropractor from issuing a certification of disability for any period preceding the date of an injured employee's examination; revising the standard for determining fees and charges for accident benefits; and providing other matters properly relating thereto.

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

Section 1 Chapter 616C of NRS is hereby amended by adding thereto the provisions set forth as sections 2 and 3 of this act.
Sec. 2 An employee or, in the event of the death of the employee, his dependent, is barred from recovering compensation pursuant to the provisions of chapters 616A to 616D, inclusive, of NRS if the employee misrepresented or falsified any document or information submitted to his employer as evidence that he has been lawfully admitted for residency in the United States.
Sec. 3 An employee or, in the event of the death of the employee, his dependent, is barred from recovering compensation pursuant to the provisions of chapters 616A to 616D, inclusive, of NRS if, in violation of a written policy of his employer, the employee was discharged from the employment out of which his injury arose for:
1. Refusing to submit to a test conducted for the purpose of determining the presence of a controlled substance in his system; or
2. Testing positive after submitting to such a test.
Sec. 4 NRS 616C.060 is hereby amended to read as follows:
616C.060[An] Except as otherwise provided in NRS 616C.490, an insurer shall accept or deny responsibility for compensation under chapters 616A to 616D, inclusive, of NRS within 30 working days after claims for compensation are received pursuant to both NRS 616C.020 and 616C.040.
Sec. 5 NRS 616C.065 is hereby amended to read as follows:
616C.0651. [Within] Except as otherwise provided in NRS 616C.490, within 30 working days after [the] an insurer has been notified of an industrial accident [, every] and has received a claim for compensation pursuant to NRS 616C.040, the insurer shall:
(a) Commence payment of a claim for compensation; or
(b) Deny the claim and notify the claimant and administrator that the claim has been denied.
Payments made by an insurer pursuant to this section are not an admission of liability for the claim or any portion of the claim.
2. If an insurer unreasonably delays or refuses to pay the claim within [30 days after the insurer has been notified of an industrial accident,] the time set forth in subsection 1, the insurer shall pay upon order of the administrator an additional amount equal to three times the amount specified in the order as refused or unreasonably delayed. This payment is for the benefit of the claimant and must be paid to him with the compensation assessed pursuant to chapters 616A to 617, inclusive, of NRS.
Sec. 6 NRS 616C.100 is hereby amended to read as follows:
616C.1001. If an injured employee disagrees with the percentage of disability determined by a physician or chiropractor, the injured employee may obtain a second determination of the percentage of disability. [If] Except as otherwise provided in this subsection, if the employee wishes to obtain such a determination, he must select the next physician or chiropractor in rotation from the list of qualified physicians or chiropractors maintained by the administrator pursuant to subsection 2 of NRS 616C.490. If the next physician or chiropractor in rotation from the list has entered into a contract with the insurer to provide medical and health care services to employees with industrial injuries or occupational diseases, the injured employee may select the next physician or chiropractor in rotation from the list of qualified physicians or chiropractors who has not entered into such a contract with the insurer, according to the area of specialization required. If a second determination is obtained, the injured employee shall pay for the determination.
2. The results of a second determination made pursuant to subsection 1 may be offered at any hearing or settlement conference.
Sec. 7 NRS 616C.230 is hereby amended to read as follows:
616C.2301. Compensation is not payable pursuant to the provisions of chapters 616A to 616D, inclusive, of NRS for an injury:
(a) Caused by the employee's willful intention to injure himself.
(b) Caused by the employee's willful intention to injure another.
(c) Proximately caused by the employee's intoxication. If the employee was intoxicated at the time of his injury, intoxication must be presumed to be a proximate cause unless rebutted by evidence to the contrary.
(d) Proximately caused by the employee's use of a controlled substance. [If the employee had] The use of a controlled substance must be presumed to be a proximate cause of an injury if the employee:
(1) Refuses to submit to a test conducted for the purpose of determining the presence of a controlled substance in his system at the time of his injury; or
(2) Had any amount of a controlled substance in his system at the time of his injury for which the employee did not have a current and lawful prescription issued in his name, [the controlled substance must be presumed to be a proximate cause] unless the presumption is rebutted by evidence to the contrary.
For the purposes of paragraphs (c) and (d), the affidavit of an expert or other person described in NRS 50.315 is admissible to prove the existence of any alcohol or the existence, quantity or identity of a controlled substance in an employee's system. If the affidavit is to be so used, it must be submitted in the manner prescribed in NRS 616C.355.
2. No compensation is payable for the death, disability or treatment of an employee if his death is caused by, or insofar as his disability is aggravated, caused or continued by, an unreasonable refusal or neglect to submit to or to follow any competent and reasonable surgical treatment or medical aid.
3. If any employee persists in an unsanitary or injurious practice that imperils or retards his recovery, or refuses to submit to such medical or surgical treatment as is necessary to promote his recovery, his compensation may be reduced or suspended.
4. An injured employee's compensation, other than accident benefits, must be suspended if:
(a) A physician or chiropractor determines that the employee is unable to undergo treatment, testing or examination for the industrial injury solely because of a condition or injury that did not arise out of and in the course of his employment; and
(b) It is within the ability of the employee to correct the nonindustrial condition or injury.
The compensation must be suspended until the injured employee is able to resume treatment, testing or examination for the industrial injury. The insurer may elect to pay for the treatment of the nonindustrial condition or injury.
Sec. 8 NRS 616C.260 is hereby amended to read as follows:
616C.2601. All fees and charges for accident benefits must not [:
(a) Exceed] be:
(a) Less than the fees and charges [usually paid in the state for similar treatment.
(b) Be unfairly] established by the administrator pursuant to subsection 2.
(b) Unfairly discriminatory as between persons legally qualified to provide the particular service for which the fees or charges are asked.
2. The administrator shall, giving consideration to the fees and charges being paid in the state, establish a schedule of [reasonable] the lowest fees and charges allowable for accident benefits provided to injured employees whose insurers have not contracted with an organization for managed care pursuant to NRS 616B.515. The lowest fees and charges allowable must be equal to 50 percent of the fees and charges usually paid in the state for similar treatment. The administrator shall review and revise the schedule on or before October 1 of each year. The administrator may increase or decrease the schedule, but shall not increase the schedule by any factor greater than the corresponding annual increase in the Consumer Price Index (Medical Care Component), unless the advisory council of the division approves such an increase.
3. The administrator may request a health insurer, health maintenance organization or provider of accident benefits, an agent or employee of such a person, or an agency of the state, to provide the administrator with such information concerning fees and charges paid for similar services as he deems necessary to carry out the provisions of subsection 2. The administrator shall require a person or entity providing records or reports of fees charged to provide interpretation and identification concerning the information delivered. The administrator may impose an administrative fine of $500 for each refusal to provide the information requested pursuant to this subsection.
4. The division may adopt reasonable regulations necessary to carry out the provisions of this section. The regulations must include provisions concerning:
(a) Standards for the development of the schedule of fees and charges;
(b) The periodic revision of the schedule; and
(c) The monitoring of compliance by providers of benefits with the adopted schedule of fees and charges.
5. The division shall adopt regulations requiring the utilization of a system of billing codes as recommended by the American Medical Association.
Sec. 9 NRS 616C.330 is hereby amended to read as follows:
616C.3301. The hearing officer shall:
(a) Within 5 days after receiving a request for a hearing, set the hearing for a date and time within 30 days after his receipt of the request;
(b) Give notice by mail or by personal service to all interested parties to the hearing at least 15 days before the date and time scheduled; and
(c) Conduct hearings expeditiously and informally.
2. The notice must include a statement that the injured employee may be represented by a private attorney or seek assistance and advice from the Nevada attorney for injured workers.
3. [If] Except as otherwise provided in this subsection, if necessary to resolve a medical question concerning an injured employee's condition, the hearing officer may refer the employee to a physician or chiropractor chosen by the hearing officer. If the medical question concerns the rating of a permanent disability, the hearing officer may [refer] require the employee to select a rating physician or chiropractor. The rating physician or chiropractor must be selected in rotation from the list of qualified physicians and chiropractors maintained by the administrator pursuant to subsection 2 of NRS 616C.490, unless the insurer and injured employee otherwise agree to a rating physician or chiropractor [.] or the next physician or chiropractor in rotation from the list has entered into a contract with the insurer to provide medical and health care services to employees with industrial injuries and occupational diseases. If the next physician or chiropractor in rotation from the list has entered into such a contract with the insurer, the injured employee may select the next physician or chiropractor in rotation from the list of qualified physicians or chiropractors who has not entered into such a contract, according to the area of specialization required. The insurer shall pay the costs of any medical examination requested by the hearing officer.
4. The hearing officer may allow or forbid the presence of a court reporter and the use of a tape recorder in a hearing.
5. The hearing officer shall render his decision within 15 days after:
(a) The hearing; or
(b) He receives a copy of the report from the medical examination he requested.
6. The hearing officer shall render his decision in the most efficient format developed by the chief of the hearings division of the department of administration.
7. The hearing officer shall give notice of his decision to each party by mail. He shall include with the notice of his decision the necessary forms for appealing from the decision.
8. Except as otherwise provided in NRS 616C.380, the decision of the hearing officer is not stayed if an appeal from that decision is taken unless an application for a stay is submitted by a party. If such an application is submitted, the decision is automatically stayed until a determination is made on the application. A determination on the application must be made within 30 days after the filing of the application. If, after reviewing the application, a stay is not granted by the hearing officer or an appeals officer, the decision must be complied with within 10 days after the refusal to grant a stay.
Sec. 10 NRS 616C.360 is hereby amended to read as follows:
616C.3601. A stenographic or electronic record must be kept of the hearing before the appeals officer and the rules of evidence applicable to contested cases under chapter 233B of NRS apply to the hearing.
2. The appeals officer must hear any matter raised before him on its merits, including new evidence bearing on the matter.
3. [If] Except as otherwise provided in this subsection, if necessary to resolve a medical question concerning an injured employee's condition, the appeals officer may refer the employee to a physician or chiropractor chosen by the appeals officer. If the medical question concerns the rating of a permanent disability, the appeals officer may [refer] require the employee to select a rating physician or chiropractor. The rating physician or chiropractor must be selected in rotation from the list of qualified physicians or chiropractors maintained by the administrator pursuant to subsection 2 of NRS 616C.490, unless the insurer and the injured employee otherwise agree to a rating physician or chiropractor [.] or the next physician or chiropractor in rotation from the list has entered into a contract with the insurer to provide medical and health care services to employees with industrial injuries or occupational diseases. If the next physician or chiropractor in rotation from the list has entered into such a contract with the insurer, the injured employee may select the next physician or chiropractor in rotation from the list of qualified physicians or chiropractors who has not entered into such a contract, according to the area of specialization required. The insurer shall pay the costs of any examination requested by the appeals officer.
4. Any party to the appeal or the appeals officer may order a transcript of the record of the hearing at any time before the seventh day after the hearing. The transcript must be filed within 30 days after the date of the order unless the appeals officer otherwise orders.
5. The appeals officer shall render his decision:
(a) If a transcript is ordered within 7 days after the hearing, within 30 days after the transcript is filed; or
(b) If a transcript has not been ordered, within 30 days after the date of the hearing.
6. The appeals officer may affirm, modify or reverse any decision made by the hearing officer and issue any necessary and proper order to give effect to his decision.
Sec. 11 NRS 616C.475 is hereby amended to read as follows:
616C.4751. Except as otherwise provided in this section, NRS 616C.175 and 616C.390, every employee in the employ of an employer, within the provisions of chapters 616A to 616D, inclusive, of NRS, who is injured by accident arising out of and in the course of employment, or his dependents, is entitled to receive for the period of temporary total disability, 66 2/3 percent of the average monthly wage.
2. Except as otherwise provided in NRS 616B.185, an injured employee or his dependents are not entitled to accrue or be paid any benefits for a temporary total disability during the time the injured employee is incarcerated. The injured employee or his dependents are entitled to receive such benefits when the injured employee is released from incarceration if he is certified as temporarily totally disabled by a physician or chiropractor.
3. If a claim for the period of temporary total disability is allowed, the first payment pursuant to this section must be issued by the insurer within [14] 30 working days after receipt of the initial certification of disability and regularly thereafter.
4. Any increase in compensation and benefits effected by the amendment of subsection 1 is not retroactive.
5. Payments for a temporary total disability must cease when:
(a) A physician or chiropractor determines that the employee is physically capable of any gainful employment for which the employee is suited, after giving consideration to the employee's education, training and experience;
(b) The employer offers the employee light-duty employment or employment that is modified according to the limitations or restrictions imposed by a physician or chiropractor pursuant to subsection 7; or
(c) Except as otherwise provided in NRS 616B.185, the employee is incarcerated.
6. Each insurer may, with each check that it issues to an injured employee for a temporary total disability, include a form approved by the division for the injured employee to request continued compensation for the temporary total disability.
7. A certification of disability issued by a physician or chiropractor must:
(a) Include the period of disability and a description of any physical limitations or restrictions imposed upon the work of the employee;
(b) Specify whether the limitations or restrictions are permanent or temporary; and
(c) Be signed by the treating physician or chiropractor authorized pursuant to NRS 616B.515 or 616B.527.
8. If a certification of disability specifies that the physical limitations or restrictions are temporary, the employer of the employee at the time of his accident is not required to comply with NRS 616C.545 to 616C.575, inclusive, and 616C.590 or the regulations adopted by the division governing vocational rehabilitation services if the employer offers the employee a position that is substantially similar to the employee's position at the time of his injury in relation to the location of the employment, the hours he is required to work and the salary he will be paid.
9. A physician or chiropractor shall not issue a certification of disability for any period preceding the date on which the physician or chiropractor examined the injured employee.
Sec. 12 NRS 616C.485 is hereby amended to read as follows:
616C.4851. The administrator shall adopt, by regulation, a schedule which, in his judgment, is best calculated to compensate fairly and adequately an injured employee for the loss of, or permanent damage to, a tooth. The administrator shall review the schedule at least once every 2 years to ensure the fairness and adequateness of the schedule.
2. An injured employee whose tooth has been repaired to a condition that is equal to or better than the condition of his tooth before his injury, and the dependent of such an employee, is not entitled to receive compensation for a permanent partial disability pursuant to NRS 616C.490 unless the employee or his dependent establishes by a preponderance of the evidence that the employee suffered a permanent disability.
Sec. 13 NRS 616C.490 is hereby amended to read as follows:
616C.4901. Except as otherwise provided in NRS 616C.175 [,] and 616C.485, every 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 of and in the course of employment is entitled to receive the compensation provided for permanent partial disability. As used in this section, "disability" and "impairment of the whole man" are equivalent terms.
2. Within 30 days after receiving from a physician or chiropractor a report indicating that the injured employee may have suffered a permanent disability and is stable and ratable, the insurer shall schedule an appointment with a rating physician or chiropractor to determine the extent of the employee's disability. The [insurer] employee shall select a physician or chiropractor from a group of rating physicians and chiropractors designated by the administrator, to determine the percentage of disability in accordance with the American Medical Association's Guides to the Evaluation of Permanent Impairment as adopted and supplemented by the division pursuant to NRS 616C.110. [Rating] Except as otherwise provided in this subsection, rating physicians and chiropractors must be selected in rotation from the list of qualified physicians and chiropractors designated by the administrator, according to their area of specialization and the order in which their names appear on the list. If the next physician or chiropractor in rotation from the list has entered into a contract with the insurer to provide medical and health care services to employees with industrial injuries and occupational diseases, the injured employee may select the next physician or chiropractor in rotation from the list of qualified physicians or chiropractors who has not entered into such a contract with the insurer, according to the area of specialization required.
3. At the request of the insurer, the injured employee shall, before an evaluation by a rating physician or chiropractor is performed, notify the insurer of:
(a) Any previous evaluations performed to determine the extent of any of the employee's disabilities; and
(b) Any previous injury, disease or condition sustained by the employee which is relevant to the evaluation performed pursuant to this section.
The notice must be on a form approved by the administrator and provided to the injured employee by the insurer at the time of the insurer's request.
4. Unless the regulations adopted pursuant to NRS 616C.110 provide otherwise, a rating evaluation must include an evaluation of the loss of motion, sensation and strength of an injured employee if the injury is of a type that might have caused such a loss. No factors other than the degree of physical impairment of the whole man may be considered in calculating the entitlement to compensation for a permanent partial disability.
5. The rating physician or chiropractor shall provide the insurer with his evaluation of the injured employee. After receiving the evaluation, the insurer shall, within [14] 30 days, provide the employee with a copy of the evaluation and notify the employee:
(a) Of the compensation to which he is entitled pursuant to this section; or
(b) That he is not entitled to benefits for permanent partial disability.
6. Each 1 percent of impairment of the whole man must be compensated by a monthly payment:
(a) Of 0.5 percent of the claimant's average monthly wage for injuries sustained before July 1, 1981;
(b) Of 0.6 percent of the claimant's average monthly wage for injuries sustained on or after July 1, 1981, and before June 18, 1993; and
(c) Of 0.54 percent of the claimant's average monthly wage for injuries sustained on or after June 18, 1993.
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 continue on a monthly basis for 5 years or until the claimant is 70 years of age, whichever is later.
7. Compensation benefits may be paid annually to claimants who will be receiving less than $100 a month.
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 disability for a subsequent injury must be determined by computing the percentage of the entire disability and deducting therefrom the percentage of the previous disability as it existed at the time of the subsequent injury.
9. The division may adopt schedules for rating permanent disabilities resulting from injuries sustained before July 1, 1973, and reasonable regulations to carry out the provisions of this section.
10. The increase in compensation and benefits effected by the amendment of this section is not retroactive for accidents which occurred before July 1, 1973.
11. This section does not entitle any person to double payments for the death of an employee and a continuation of payments for a permanent partial disability, or to a greater sum in the aggregate than if the injury had been fatal.
Sec. 14 Chapter 617 of NRS is hereby amended by adding thereto a new section to read as follows:
An employee or, in the event of the death of the employee, his dependent, is barred from recovering compensation pursuant to the provisions of this chapter if the employee misrepresented or falsified any document or information submitted to his employer as evidence that he has been lawfully admitted for residency in the United States.
Sec. 15 The provisions of sections 2, 3 and 14 of this act must not be applied to reduce the amount of compensation and benefits of an employee who is receiving compensation and benefits for an industrial injury or an occupational disease before October 1, 1997, or to reduce the amount of compensation and benefits of the dependents of such an employee.
Sec. 16 1. This section and sections 1 to 4, inclusive, and 6 to 15, inclusive, of this act become effective on October 1, 1997.
2. Section 5 of this act becomes effective at 12:01 a.m. on July 1, 1999.