Nevada Workers' Compensation Law Blog : Nevada Workers' Compensation Lawyer & Attorney : Virginia Hunt Law Firm : Las Vegas Job Injuries & Worker Accidents

When an injured worker is taken off work by the treating doctor, the insurer pays the injured worker 66 2/3 of the injured worker's average monthly wage if it does not exceed the state's maximum average monthly wage for the year in which the accident occurred.  For injuries occurring after July 1, 2009, the maximum average monthly wage has been certified by Nevada's Dept. of ESD as $5,208.60 a month.   That means that an injured worker who is unable to work for a month can receive a maximum of $3,472.40 a month in benefits.  As benefits are usually paid every two weeks, and each day in a 14 day period is counted, the bi-weekly benefit check would be $1,603.88.  If the injured worker is earning less than the state maximum average monthly wage, the benefit is 66 2/3 of the actual gross wages earned.  Rate charts showing the maximum average monthly wage going back to fiscal year 1974 are at this link.

The period of earnings that are examined is usually a 12-week period immediately preceeding  the date of the injury.  However, an injured worker may request that the insurer use a one year earnings history, or the full period of employment if it is greater than 4 weeks, but less than a full year, if it would result in a higher average monthly wage calculation.  The regulations on how to fairly calculate an injured worker's average monthly wage begin at NAC 616C.420.  If an injured worker has an unusual employment arrangement, has more than one employer at the time of his accident, or thinks that the benefits paid by the insurer are less than 2/3 of his typical monthly gross income, a free consultation with an attorney would be wise.   The average monthly wage that is established by the insurer to calculate the amount of temporary total disability benefits is also used to calculate how much a final permanent partial disability award will be at the end of the claim.  It is one of the most important determinations the insurer makes on the claim.

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The 2009 legislative session was preoccupied with the economic crisis,  the state budget, and an unprecedented number of bills vetoed by the governor, the majority of which  were promptly reaffirmed by the state assembly and senate. Injured workers seeking reforms didn't stand much of a chance to make significant changes in this climate.   However, Assembly Bill 281 made some minor reforms to NRS 616C.090, the law allowing insurers to establish exclusive providers lists from which injured workers must choose a treating doctor. 

Section 3 to A.B. 281 clarifies that an injured worker may request an alternative choice of physician from the insurer's provider list without the insurer's approval , if the alternative choice is made within 90 days after the injury.   However, expect insurers whose initial denial of the claim is overturned to continue to argue that the injured worker has no right to choose an alternative treating physician after 90 days, even if it takes more than 90 days to get the claim accepted after a lengthy appeals process.

This bill also clarifies that an injured worker may request an alternative physician from the insurer's provider list after 90 days, and if the insurer denies this request, it must give a specific , written reason for denying the request .  In other words, the insurer can no longer deny the request simply because the request was made  90 days after the injury.  

I think the most helpful change to the law is the addition of a provision in section 3 that a written request for a change of physician that includes the name of the new physician (who is on the insurer's provider list), will be deemed granted if no action is taken on the request by the insurer within 10 days. Whether the insurer can subsequently issue a written denial with appeal rights under this amendment will undoubtedly be the subject of debate during  future appeals .

Two years ago, in Valdez v. Employers Insurance Company of Nevada, 123 Nev. Adv. Op. 21 (2007), the Nevada Supreme Court held that injured workers with accepted workers compensation claims have no substantive right to choose a treating physician, and can be required to treat with physicians contracted by the insurer or employer to provide care.    The court went on to state in that case that the Nevada legislature may retroactively change the manner in which an injured worker may select a physician, and may impose limits on that selection procedure.   The recent amendment to the law  on selection of an alternative physician takes a little bit of the sting out of the Valedez ruling. This amendment became effective July 1, 2009.

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It's good news for injured workers  that at the last hour of the 2009 legislative session, on May 31, 2009, the Assembly and the Senate reaffirmed Senate Bill 195, overturning the governor’s veto. Section 3 of S.B. 195 requires that permanent partial disability evaluators continue to use the 5^th edition of the American Medical Association’s Guide to Evaluation of Permanent Impairment.  Had this bill not passed, rating doctors would have been required to use the 6^th edition of the Guides. It was the consensus among rating doctors and attorneys for injured workers that most awards for serious injuries under the 6^th edition would be significantly lower.

The law regarding notice of claim closure was amended to require that the insurer notify the injured worker whether or not a rating evaluation was being scheduled, and the reason why a rating was not being scheduled, in section 6 of Assembly Bill 281.   Currently, the Notice of Claim Closure form does not give the injured worker any information about the scheduling of a rating evaluation. This amendment to the law will at least put an injured worker on notice that his treating physician has informed the insurer that there is no likelihood of impairment, and that a rating is not being scheduled. The injured worker can then evaluate options for obtaining a rating at his or her own expense with a doctor assigned from the rotating list, and perhaps file an appeal of the insurer’s determination to close the claim without a rating.   

Section 7 of S.B. 195 allows a rating doctor to consider psychological impairment during a rating for those rare stress claims accepted under the narrow confines of NRS 616C. 180.   Only physical impairment can be considered for all other claims.

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Children, spouses, or other legal dependents of employees whose industrial injuries result in death or permanent total disability may be eligible for a scholarship with the College of Southern Nevada.  This scholarship was established by the Nevada Self Insurers Association.   For more information on how to apply for this scholarship, contact Jamille Watson (702) 651-5831 at the College of Southern Nevada Foundation, Sort Code WE32, 6375 West Charleston Blvd., Las Vegas, NV 89146-1164.

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