W orkers’ Compensation Section 2009 Legislative Changes State of Nevada Division of Industrial Relations

Workers’ Compensation Section

2009 Legislative Changes

State of NevadaDivision of Industrial

Relations

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Legal Disclaimer

•While every effort has been made to be comprehensive, this overview is not guaranteed to be all inclusive

•Those interested are strongly encouraged to read the bills in their entirety at:

www.leg.state.nv.us

Select 2009 session>Bill Information

•If you need legal interpretation, please see your attorney

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Reminder

• NRS 616C.425 Date of determination of amount of compensation and benefits. Except as otherwise provided by a specific statute:

• 1. ... compensation and benefits [are] ... determined as of the date of the accident or injury ...

• 2. ... subsequent injury or disability that primarily arises from a previous accident or injury,... the date of the previous accident or injury must be used to determine the amount of compensation and benefits to which the claimant is entitled.

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2009 Legislature Changes for Workers’ Comp

AB 24 AB 521

AB 173 SB 6

AB 214 SB 195

AB 281 SB 361

AB 410 SB 363

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Bills “Areas of Interest”

•Personnel Matters

•Claim Processing Changes

•Medical

•New Insurance Plans

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Bills “Areas of Interest”

•Other Regulatory Matters

•TPAs

•PEOs

•Collective Bargaining

•Benefits

•Fines/Penalties

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Personnel Matters

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Personnel MattersAB 173 – Occ. Disease & Arson Investigators

Existing law establishes diseases of the lung and heart as occupational diseases of firefighters and police officers. (NRS 617.455, 617.457)

Sections 5 and 6 of this bill provide that such diseases are also occupational diseases of an arson investigator.

Sections 1-3 of this bill add arson investigators to provisions relating to such diseases.

Effective: October 1, 2009

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Personnel MattersAB 214 – Expanded Definition of

‘Police Officer’ & Occ. Disease

Section 1 of this bill expands the definition of “police officer” to make certain employees of the Department of Public Safety and certain park rangers and division employees of the State Department of Conservation and Natural Resources eligible for the disability benefits provided to police officers.

Effective: July 1, 2009

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Personnel MattersAB 281(4) - Omnibus

Section 4 of this bill provides that the affidavit or declaration of a qualified laboratory director, chemist or any other person meeting certain qualifications may be used to prove the existence of alcohol or controlled substances in an employee’s system in denying, reducing or suspending the payment of compensation for an injury. (NRS 616C.230)


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Personnel MattersAB 281(5) - Omnibus

NRS 616C.232 – Employee Misconduct

Section 5 of this bill revises existing provisions governing the denial of compensation to injured employees who have been discharged for misconduct by providing that only compensation for temporary total disability (TTD) may be denied.


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Personnel MattersSB 195 (4) - Omnibus

Section 4 of this bill revises provisions governing the denial of compensation due to discharge from employment for misconduct.

NRS 616C.232 – Employee Misconduct

3. Discharge from employment for reasons other than

gross misconduct does not limit an injured employee’s entitlement to receive benefits for temporary total disability.


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Personnel MattersAB 281(7-9) - Omnibus

Sections 7 & 8 of this bill authorize certain claims relating to certain occupational diseases of police officers, firefighters and emergency medical attendants to be submitted to an appeals officer, thereby bypassing the hearing officer to whom the contested claim would need to be submitted under existing law. (NRS 616C.315)

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Personnel MattersAB 281(8-9) - Omnibus

Section 8 also requires that the appeals officer set a hearing date within 60 days after receiving a notice of any such contested claim. (NRS 616C.345)

Section 9 of this bill requires that the appeals officer render a decision for any such contested claim within 15 days after certain specific events (NRS 616C.360).


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Personnel MattersAB 521 – Occ. Disease and

Firefighters: New Carcinogens

• Existing law sets forth a list of substances that shall be deemed to be known carcinogens that are reasonably associated with specific disabling cancers. (NRS 617.453)

• This bill expands the list of substances which are deemed to be known carcinogens that are reasonably associated with specific cancers.


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Personnel MattersSB 6 – Occ. Disease and Firefighters over

50• Existing law provides that, under certain

circumstances, heart disease of a volunteer firefighter constitutes an occupational disease for purposes of chapter 617 of NRS. (NRS 617.457)

• Section 2 of this bill removes the requirement that the heart disease must have occurred before the volunteer firefighter reached 55 years of age; it also revises the frequency with which the volunteer firefighter must submit to a physical examination to detect such heart disease and makes the benefits of NRS 617.457 contingent upon submission to the physical examinations scheduled by his employer.

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Personnel MattersSB 6 – Occ. Disease and Firefighters over

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• This bill also provides that a volunteer firefighter applicant 50 years of age or older may be responsible for payment of the costs of his physical examinations but will be reimbursed for those costs if he becomes a volunteer firefighter.


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Claim Processin

g Changes

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Claim Processing ChangesAB 281- Omnibus

Section 2 of this bill provides that if an insurer is ordered by the Administrator of DIR, a hearing or appeals officer, a district court or Supreme Court of Nevada to make a new determination relating to a claim for compensation, such a determination must be made within 30 days after the order. (Prior to this legislation, there was no specified number of days in statute for making the new determination.)


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Claim Processing ChangesSB 195(2) - Omnibus

Section 2 Provides that the failure of an insurer to indicate the acceptance or denial of a claim for a part of the body or condition does not constitute a denial or acceptance thereof.


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Medical

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MedicalAB 281(3) - Omnibus

Existing law provides that an injured employee may choose an alternative treating physician or chiropractor after making his initial choice if the alternative choice is made within 90 days after the injury. (NRS 616C.090) Section 3 of this bill clarifies existing law by providing that an injured employee may make the alternative choice without the insurer’s approval if the alternative choice is made within 90 days after the injury.

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MedicalAB 281(3)- Omnibus

This section also provides that an injured employee may make a change in the treating physician or chiropractor at any time, subject to the insurer’s approval. Insurer has 10 days to act on request after receipt or it’s deemed approved.

It further requires an insurer to provide to an injured employee whose request for a change in the treating physician or chiropractor has been denied the specific reason for the denial.

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NRS 616C.090 (8) – Physician Selection8. The Administrator shall design a form that

notifies injured employees of their right pursuant to

subsections 2 , [and] 3 and 4 to select an alternative treating physician or chiropractor and make the form available to insurers for distribution pursuant to subsection 2 of NRS 616C.050.

See New D-52 on WCS Forms Page: http://dirweb.state.nv.us/forms/D-52.pdf


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Section 6 of this bill revises existing law by requiring an insurer to notify an injured employee whose claim will be closed whether an evaluation for a permanent partial disability (PPD) has been scheduled or, if such an evaluation has not been scheduled, that the reason is because the insurer determined there is no possibility of a permanent impairment of any kind. (NRS 616C.235)


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MedicalSB 195(3) - Omnibus

Section 3 of this bill requires that the Fifth Edition, rather than the most recent edition, of the American Medical Association’s Guides to the Evaluation of Permanent Impairment must be applied in all examinations for a permanent partial disability.

Effective: May 31, 2009

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MedicalSB 195 (5 & 6) - Omnibus

Sections 5 and 6 of this bill authorize a hearing officer or appeals officer to consider the opinion of an examining physician or chiropractor, in addition to the opinion of an authorized treating physician or chiropractor, in determining the compensation payable to the injured employee.


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MedicalSB 195(7) - Omnibus

Section 7 of this bill revises existing law to allow factors other than the degree of physical impairment of the whole man to be considered in calculating the entitlement to compensation for a permanent partial disability involving injury or disease caused by stress in the case of claims accepted pursuant to NRS 616C.180.


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New Insurance Plans

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New Insurance PlansAB 24 – Catastrophic Injury & Life Care

Plans

• Introduces “Catastrophic Injury” to provisions governing industrial insurance claims.– Requires adjuster for claim be competent and

qualified– Catastrophic Team will also include a

designated nurse and vocational rehabilitation counselor.

• Insurers accepting the claims must develop a “Life Care Plan” within 90 days after the date of claim acceptance

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Plans• DIR is required to adopt regulation(s):

– Which determine the types of injuries or other factors which would be used in deeming a claim a catastrophic injury.

– Defines the qualifications of the adjuster– Defines “Life Care Plan”– Required frequency and method of required

communications with the injured employee, his family or representative.

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PlansSec. 17. An insurer that has accepted a claim for a

catastrophic injury may thereafter rescind or revise its original determination that the injury is a catastrophic injury if:1. Medical evidence supports the rescission or revision;2. The injured employee is stable and ratable; or3. Other circumstances warrant such a rescission or

revision.Effective:1. Upon passage and approval for the purpose of

adopting Regulations (June 9, 2009); and2. On October 1, 2009, for all other purposes.

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New Insurance PlansSB 195 - Omnibus

Continuous Care

Sections 11 and 16 of this bill define and establish continuous care coverage as a line of insurance for which a producer may be licensed. Such coverage includes health insurance and may include insurance for workers’ compensation only when issued jointly with and supplemental to the policy of health insurance.


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Other Regulatory Matters

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Other Regulatory MattersSB 195(15) – Omnibus (TPAs)

Section 15 of this bill requires the Commissioner of Insurance to obtain final approval from the DIR before issuing a certificate of registration as an administrator. Section 1.5 of this bill requires the Administrator of the DIR to adopt regulation setting forth the qualifications needed to obtain such final approval.


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Other Regulatory MattersSB 361 – Employee Leasing

Companies

This bill authorizes DIR to adopt regulations to allow an employee leasing company to enter into an agreement with an assurance organization to act on its behalf with regard to certain regulatory provisions.

• Section 4 of this bill provides for the ways that an employee leasing company and its clients may satisfy the requirement to obtain workers’ compensation coverage for their employees.

• Sections 9 and 10 of this bill make changes consistent with the provisions of section 4.

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Other Regulatory MattersSB 361 – Employee Leasing

Companies • Section 7 of this bill requires an employee leasing company

to pay a fee ($500) for the issuance or renewal of its certificate of registration.

• Section 8 of this bill requires an employee leasing company to provide certain financial statements along with its application for the issuance or renewal of a certificate of registration.

• Sections 13.2-13.8 of this bill provide for the ways that an employee of an employee leasing company may notify a supervisor of an injury for industrial insurance purposes.

Effective: Sec. 1 – 7, 9 – 13.8, October 1, 2009 Sec. 8, January 1, 2010

For more information contact Angela Yllas, 486-9109; [email protected]

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Other Regulatory MattersAB 410 – Collective Bargaining

• Amends the Nevada Industrial Insurance Act (NIIA). It authorizes collective bargaining agreements to supersede certain aspects of the NIIA, but prohibits the reduction of compensation or accident benefits.

• Under this bill, employers and labor organizations can agree to alternative dispute resolution, specify medical providers and evaluators, joint safety committees, modified or light-duty employment and exclusive sources of vocational rehabilitation services.

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Other Regulatory MattersAB 410 – Collective Bargaining

• This bill mandates that DIR and the courts shall recognize the union and employer agreements as valid and binding.

• Any such process for alternative dispute must provide that a finding of fact, award, order or decision of an arbitrator or board of arbitration:– Has the same force and effect as a finding of fact,

award, order or decision of a hearing officer or the Administrator, as applicable; and

– Is subject to review by an appeals officer in the same manner, and using the same procedures.


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Benefits

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BenefitsAB 281 – Omnibus

(Federal Disability Offset Eliminated)

Section 11 of this bill repeals the provisions requiring a reduction in the compensation received by an employee for temporary disability, permanent partial disability or permanent total disability by the amount of federal disability insurance benefits received by the employee. (NRS 616C.430)


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BenefitsSB 195(9) - Omnibus

NRS 616C.505 – Death Benefits

1. In addition to any other compensation payable pursuant to chapters 616A to 616D, inclusive, of NRS, burial expenses

are payable in an amount not to exceed [$5,000.] $10,000,

plus the cost of transporting the remains of the deceased employee. When the remains of the deceased employee and the person accompanying the remains are to be transported to a mortuary or mortuaries, the charge of transportation must be borne by the insurer.

11. In the event of the death of any dependent specified in this

section 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.] $10,000.


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BenefitsSB 363 – Death Benefits

NRS 616C.505 – Remarriage penalty/two-year lump-

sum option repealed

- Child’s portion (15% of 66 2/3 AMW) repealed

NRS 616C.507: Duration of compensation for surviving spouse of police or firefighter -

Repealed

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Sec. 4. 1. The amendatory provisions of section 2 of this act (see [ ] below) do not apply to a surviving spouse if the surviving spouse is remarried before October 1, 2007.

(Sec 2. Except as otherwise provided in subsection 3, [and NRS 616C.507,] to the surviving spouse of the deceased employee, 66 2/3 percent of the average monthly wage is payable until his death . [or remarriage, with 2 years’ compensation payable in one lump sum upon remarriage.])

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Section 4 – of this bill requires DIR to contact a surviving spouse who remarried between October 1, 2007, and September 30, 2009 and states that DIR shall calculate the amount of a payment that the surviving spouse could make, on what date the surviving spouse’s monthly benefits could recommence, for what period and by what amount the surviving spouse’s monthly benefits should be reduced and various combinations thereof, ...

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. . . so that by October 1, 2011, the surviving spouse would be in the same position as if they had not received a lump sum and their monthly benefits had not ceased.

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2. b. Any monthly benefits being paid to a child pursuant to NRS 616C.505 because of the remarriage must cease. Those monthly benefits are not required to be repaid. Any other benefits to which the child may be entitled must not be reduced or adjusted to account for any monthly benefits paid to the child pursuant to NRS 616C.505 because of the remarriage.


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Fines/Penalties

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Fines/PenaltiesSB 195(10) - Omnibus

616A.070 “Benefit penalty” means an additional amount of money that is payable to a claimant if the Administrator has determined that a violation of any of the provisions of paragraphs

(a) to (e), inclusive, [or] (h) or (i) of subsection 1 of NRS 616D.120 has occurred.

(new provision) (h) Engaged in a pattern of untimely

payments to injured employees; or (i) Intentionally failed to comply with any

provision of [NAC 616 – 617]

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NRS 616D.120 – Subsequent Fine Increased

. . .The fine imposed must not be greater than $375 for an initial violation, or more than [$1,500] $3,000 for any second or subsequent violation.

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NRS 616D.120 – Benefit Penalty Max Increased

3 (a) Except as otherwise provided in paragraph (b), in an amount that is not less than $5,000 and not greater than [$37,500;] $50,000; . . .

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Fines/PenaltiesSB 195 (10) - Omnibus

NRS 616D.120 (4) – Benefit Penalty Criteria

To determine the amount of the benefit penalty in cases of multiple violations occurring within a certain period of time, the Administrator shall adopt regulations which take into consideration:

(a) The number of violations within a certain number of years for which a benefit penalty was imposed; and

(b) The number of claims handled by the insurer, organization for managed care, health care provider, third-party administrator or employer in relation to the number of benefit penalties previously imposed within the period of time prescribed pursuant to paragraph (a).

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NRS 616D.120 (10) – New Section

10. The Administrator may make a claim against the bond required pursuant to NRS 683A.0857 (Bond: Requirement; amount; conditions; cancellation.) for the payment of any administrative fine or benefit penalty imposed for a violation of the provisions of this section.


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Continuous Care

Chapter 683A of NRS is hereby amended by adding thereto a new

section to read as follows:1. A person licensed as a producer of continuous care

coverage shall not sell, solicit or negotiate insurance for workers’ compensation unless:

(a) The person is licensed as a producer of casualty insurance; or

(b) The policy of insurance for workers’ compensation is sold jointly with and supplemental to a policy of health insurance covering the same individual for the same policy period.

2. A person who violates the provisions of subsection 1 is subject to an administrative fine pursuant to subsection 3 of NRS 683A.201.


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Questions

•Call or e-mail the Education Unit: (702) 486-9102; [email protected]

Documents

W orkers’ Compensation Section 2009 Legislative Changes State of Nevada Division of Industrial Relations