orkers’ Compensation Section

State of NevadaDivision of Industrial Relations 2011 Legislative Changes orkers’ Compensation Section W

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 2011 session>Bill Information • If you need legal interpretation, please see your attorney

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.

2011 Legislature Changes for Workers’ Compensation AB 74 SB 58 AB 98 SB 63 AB 141 SB 164 SB 21 SB 213

Bills “Areas of Interest” • Personnel Matters • SB 21 – Catastrophic Injury and Life Care Plans • Other Regulatory Matters • TPA Regulation • Employee Leasing Companies • Fines/Penalties • SB 63 UECA Reimbursement & Other amounts owed

Legend of Bill Text • Bold italics = new language • [therefore] = deleted language • Plain text = existing language • ( ) = explanatory language for training purposes

Personnel Matters

Personnel MattersAB 98 – WC Coverage for Volunteer Health Practitioners Sec. 29.1. A volunteer health practitioner who dies or is injured (or who incurs an occupational disease) as a result of providing health or veterinary services pursuant to sections 2 to 30, inclusive, of this act is deemed to be an employee as defined in section 31.5 of this act for the purposes of receiving benefits for the death or injury pursuant to chapters 616A to 616D (and 617), inclusive, of NRS if: (a) The practitioner is not otherwise eligible for such benefits for the injury or death under the laws of this or another state; and (b) The practitioner or, in the case of death, the practitioner’s personal representative, files a claim for compensation under chapters 616A to 616D (or 617), inclusive, of NRS.

Personnel MattersAB 98 – WC Coverage for Volunteer Health Practitioners Sec. 29.cont’d 3. ...To promote uniformity in the application of sections 2 to 30, inclusive, of this act with other states that enact similar legislation, the Division of Industrial Relations shall consult with, and consider the practices for filing, processing and paying claims by, agencies having similar authority in other states. 4. As used in this section, “injury” means a physical injury or mental injury, as described in NRS 616C.180, or a disease for which an employee of this State who is injured or contracts the disease in the course of the employee’s employment would be entitled to benefits under chapters 616A to 617, inclusive, of NRS.

Personnel MattersAB 98 – WC Coverage for Volunteer Health Practitioners Sec. 31.5.Volunteer health practitioners have deemed wages of $100 per month Sec. 32.5.NRS 616A.105 (and Sec. 33 – NRS 617.070) is hereby amended to read as follows: 616A.105 “Employee” and “worker” are used interchangeably in chapters 616A to 616D, inclusive, of NRS and mean every person in the service of an employer under any appointment or contract of hire or apprenticeship, express or implied, oral or written, whether lawfully or unlawfully employed, and include, but not exclusively: ... 5. Volunteer health practitioners, as defined in section 19 of this act, who are providing health or veterinary services pursuant to sections 2 to 30, inclusive, of this act and are entitled to the benefits of chapters 616A to 616D, inclusive, of NRS pursuant to the provisions of section 29 of this act.

Personnel MattersAB 141– Heart and Lung Disease & Physical Exams Existing law establishes diseases of the lung and heart as occupational diseases of full-time firefighters, police officers and volunteer firefighters. (NRS 617.455, 617.457) Sec. 1. Employees covered under NRS 617.455 (lung disease) must submit to a thorough lung function test upon employment

Personnel MattersAB 141– Heart and Lung Disease & Physical Exams Sec. 1 cont’d (lung disease): upon beginning coverage, and once every 2 years until age 40 or older After age 40, annual exams required Volunteer Firefighters – Exam Requirements: • Upon employment • Upon beginning coverage

Personnel MattersAB 141– Heart and Lung Disease & Physical Exams Volunteer Firefighters – Exam Requirements, (lung disease) cont’d: • X-rays once every three years • After 50 yrs or older, exam & X-ray once every two years NRS 617.457 – heart disease: Volunteer firefighter, when on continuously active status, must submit to physical exam • Upon employment • Upon beginning coverage

Personnel MattersAB 141– Heart and Lung Disease & Physical Exams NRS 617.457 – heart disease (physical exam): • Once every 3 years after the beginning of coverage physical • After 50 or older, once every two years Employer must mail volunteer FF notice of date/time and place of physical exam 10 days prior and obtain a USPS certificate of mailing Effective: October 1, 2011

Personnel MattersSB 58 – Employer Fraud Section 1of this bill adds a new section to NRS 616D An employer commits fraud who knowingly makes a false statement or representation or knowingly conceals a material fact regarding the eligibility of a person claiming workers’ compensation benefits without limitation, information relating to: • The identity of the person or • The classification of the person as an independent contractor

Personnel MattersSB 58 – Employer Fraud An employer who commits fraud or any person who conspires to commit fraud shall be punished as follows: • If the amount of benefit or payment was less than $250; it’s a misdemeanor offense • If the amount of benefit or payment was $250 or more, it’s a category D felony as provided in NRS 193.130

Personnel MattersSB 58 – Employer Fraud Sec. 3. amends NRS 616D.220 to specify that misrepresenting the classification or duties of an employee means “as they relate to the amount of payroll upon which premium is based.” Effective: October 1, 2011

SB 21 - Catastrophic Injury & Life Care Plans

SB 21 – Catastrophic Injury & Life Care Plans NRS 616A.077 – Expands Definition of “Catastrophic Injury” 8.A coma or vegetative state; 9. The loss or significant impairment of function of one or more vital internal organs or organ systems; 10. The mangling, crushing or amputation of a major portion of an extremity; 11. An injury which the insurer and the injured employee agree should be administered as a claim for a catastrophic injury; 12. An injury determined to be a catastrophic injury pursuant to section 1.4 of this act; or 13. Any other category of injury deemed to be catastrophic as determined by the Administrator

SB 21 – Catastrophic Injury & Life Care Plans NRS 616A.080 – Changes definition of vocational rehabilitation counselor: • Master’s degree in rehabilitation counseling • Has been certified as a rehab counselor by the Commission on Rehabilitation Counselor Certification Or • Has been certified as an insurance rehabilitation specialist by the Certification of Disability Management Specialists Commission

SB 21 – Catastrophic Injury & Life Care Plans Sec. 1.4. New Provisions of NRS 616C: 1. An injured employee may submit to an insurer a written request for a determination that his or her injury should be administered as a claim for a catastrophic injury. 2. If an employee submits a written request to an insurer pursuant to subsection 1, the insurer shall issue a written determination concerning the request not later than 30 days after receipt of the request.

SB 21 – Catastrophic Injury & Life Care Plans Sec. 1.5.New Provisions of NRS 616C: An insurer that did not originally accept a claim as a claim for a catastrophic injury shall designate the claim as a claim for a catastrophic injury if at any time after the claim is accepted the injury satisfies the requirements for a catastrophic injury.

SB 21 – Catastrophic Injury & Life Care Plans Sec. 1.6NRS 616C.700: (b) Within [90] 120 days after the date [of acceptance of the claim,] on which the treating physician determines that the condition of the injured employee has stabilized and that the injured employee requires a life care plan, develop a life care plan in consultation with the adjuster, nurse and vocational rehabilitation counselor assigned to the claim pursuant to paragraph [(a).] (a); and (c) Pay benefits and provide the proper medical services to the injured employee during the entire period of the development and implementation of the life care plan.

SB 21 – Catastrophic Injury & Life Care Plans NRS 616C.700(3) ... 3. In developing a life care plan for an injured employee, the insurer, in consultation with the adjuster, nurse and vocational rehabilitation Counselor assigned to the claim pursuant to paragraph (a) of subsection 1, shall assess the following: (a) The number of home or hospital visits determined to be necessary or appropriate by the registered nurse and vocational rehabilitation counselor;

SB 21 – Catastrophic Injury & Life Care Plans NRS 616C.700(3) ... (b) The life expectancy of the injured employee; (c) The medical needs of the injured employee, including, without limitation: (1) Surgery; (2) Prescription medication; (3) Physical therapy; and (4) Maintenance therapy

SB 21 – Catastrophic Injury & Life Care Plans NRS 616C.700(3) ... (d) The effect, if any, of any preexisting medical condition; and (e) The potential of the injured employee for rehabilitation, taking into account: (1) The injured employee’s medical condition, age, educational level, work experience and motivation; and (2) Any other relevant factors.

SB 21 – Catastrophic Injury & Life Care Plans NRS 616C.700(4) 4. A life care plan developed pursuant to paragraph (b) of subsection 1 must include, without limitation, a schedule for the adjuster, nurse and vocational rehabilitation counselor assigned to the claim pursuant to paragraph (a) of subsection 1 to meet or communicate with the injured employee, if practicable, and the treating physician to determine the need for, without limitation:

SB 21 – Catastrophic Injury & Life Care Plans NRS 616C.700(4) cont. (a) Special medical attention or treatment; (b) Psychological counseling or testing; and (c) Any medical device, including, without limitation: (1) A wheelchair; (2) A prosthesis; and (3) A specially equipped or designed motor vehicle.

SB 21 – Catastrophic Injury & Life Care Plans NRS 616C.700(5) 5. A life care plan developed pursuant to paragraph (b) of subsection 1 must include a plan of action for treatment or vocational rehabilitation of the injured employee or consideration of the possible permanent total disability of the injured employee.

SB 21 – Catastrophic Injury & Life Care Plans NRS 616C.700(6) 6. In addition to any claim determination affecting the rights of an injured employee under his or her claim, or responses to requests on behalf of the injured employee for specific action or information on the claim or any other contact that may occur, an insurer shall (a) Schedule a personal meeting concerning the status of the claim to take place at least once per calendar month between the adjuster assigned to the claim pursuant to paragraph of subsection 1 and the injured employee or a family member or designated representative of the injured employee;

SB 21 – Catastrophic Injury & Life Care Plans NRS 616C.700(6) cont. or (b) If a personal meeting described in paragraph (a) is not practicable, provide a written report concerning the status of the claim and soliciting requests and information at least once per calendar month to the injured employee or a family member or designated representative of the injured employee. The report must be mailed to the injured employee or a family member or designated representative of the injured employee by first-class mail.

SB 21 – Catastrophic Injury & Life Care Plans NRS 616C.700(7) 7. Except as otherwise provided in this subsection, a life care plan developed pursuant to paragraph (b) of subsection 1 must be based on the condition of the injured employee at the time the life care plan is established. If there is a substantial or significant change in the condition or prognosis of the injured employee, the insurer shall amend the life care plan to reflect the change in the condition or prognosis of the injured employee.

SB 21 – Catastrophic Injury & Life Care Plans Sec. 1.7.NRS 616C.720 is hereby amended to read as follows: 616C.720 [1.] An adjuster who administers a claim for a catastrophic injury must 1. Have at least 4 years of experience in adjusting workers’ compensation claims for lost time; or 2. Have at least 2 years of experience in adjusting workers’ compensation claims for lost time and work under the direct supervision of an adjuster who has at least 4 years of experience in adjusting such claims. Effective: May 30, 2011

Other Regulatory Matters: • TPA Regulation • Employee Leasing Companies

Other Regulatory MattersSB 164 – TPA Regulation Section 16.5 NRS 616A.400 The Administrator shall:… 5. Determine whether an insurer or third-party administrator has provided adequate facilities in this State to administer claims and for the retention of a file on each claim. 7. Conduct such investigations and examinations of insurers or third-party administrators as the Administrator deems reasonable to determine whether any person has violated the provisions ... Effective: June 17, 2011 for purpose of adopting regulations and January 1, 2012 for all other purposes

Other Regulatory MattersAB 74Employee Leasing Companies Section 128. 616B.691(1). [For the purposes of chapters 612 and 616A to 617, inclusive, of NRS, an] An employee leasing company which complies with the provisions of NRS 616B.670 to 616B.697, inclusive, shall be deemed to be the employer of the employees it leases to a client company. The provisions of this subsection apply only for the purposes of chapters 612 and 616A to 617, inclusive, of NRS.

Other Regulatory MattersAB 74 Employee Leasing Companies Section 128. NRS 616B.691(2) 2. [If an employee leasing company complies with the provisions of subsection 3, the] An employee leasing company shall be deemed to be [the] an employer of its leased employees for the purposes of offering, sponsoring and maintaining any benefit plans . [, including, without limitation, for the purposes of the Employee Retirement Income Security Act of 1974, 29 U.S.C. §§1001 et seq.] The provisions of this subsection do not affect the employer-employee relationship that exists between a leased employee and a client company.

Other Regulatory MattersAB 74 Employee Leasing Companies Section 128. NRS 616B.691(3) 3. An employee leasing company shall not offer , sponsor or maintain for its leased employees any self-funded [industrial] insurance program. An employee leasing company shall not act as a self-insured employer or be a member of an association of self-insured public or private employers pursuant to chapters 616A to 616D, inclusive, or chapter 617 of NRS [.] or title 57 of NRS (Insurance) Effective: June 17, 2011 for the purpose of adopting regulations and other administrative tasks to carry out the act; October 1, 2011 for all other purposes

Other Regulatory MattersSB 213 – Employee Leasing Companies Section 1. NRS 616B.679 (5) is hereby amended to read As follows: ... An employee leasing company that has not had sufficient operating history to have an audited financial statement based upon at least 12 months of operating history must present financial statements reviewed by a certified public accountant covering its entire operating history. [Each]The financial [statement] statements must [:] be prepared not more than 13 months before the submission of an application and must: (a) Indicate that the applicant has [maintained] positive working capital, as defined by generally accepted accounting principles, [throughout] for the period covered by the financial [statement;] statements; or

Other Regulatory MattersSB 213 – Employee Leasing Companies NRS 616B.679(5) ... (b) Be accompanied by a bond, irrevocable letter of credit or securities with a minimum market value equaling the maximum deficiency in working capital for the period covered by the financial statements plus $100,000. The bond, irrevocable letter of credit or securities must be held by a depository institution designated by the Administrator to secure payment by the applicant of all taxes, wages, benefits or other entitlements payable by the applicant. Effective October 1, 2011

Fines/Penalties Uninsured Employers Claim Account Reimbursement & Other Amounts Owed

Fines/PenaltiesSB 63 – UECA and other amounts owed Chapters 616C and 617 of the NRS add new sections to read as follows: 1. Except as otherwise provided in this subsection, if an employer fails to pay to the Division any amount due pursuant to NRS 616C.220 (or NRS 617.401 in the case of occupational disease) the Division may, after the date on which the debt became due, file with the office of the clerk of a court of competent jurisdiction an application for the entry of summary judgment against the employer for the amount due. The Division may not enforce a judgment against an employer if an appeal requested by the employer pursuant to NRS 616C.220 (or NRS 617.401) is pending.

Fines/PenaltiesSB 63 – UECA and other amounts owed Chapters 616C and 617 of the NRS add new sections to read as follows: 2. If the Division intends to file an application for the entry of summary judgment, the Division shall, not less than 15 days before the date on which the application is filed, notify the employer of the Division’s intention to file the application. The notification must be sent by certified mail to the last known address of the employer and must include the name of the employee for whom the claim was paid, the amount sought to be recovered and the date on which the application will be filed with the court.

Fines/PenaltiesSB 63 – UECA and other amounts owed Chapters 616C and 617 of the NRS add new sections to read as follows: 3. An application for the entry of summary judgment must: (a) Be accompanied by a certificate which specifies: (1) The amount owed by the employer, including any attorney’s fees, interest and administrative costs due; (2) The name and address of the employer; and (3) That the Division has complied with the applicable provisions of law relating to the determination of the amount required to be paid; and

Fines/PenaltiesSB 63 – UECA and other amounts owed (b) Include: (1) A request that judgment be entered against the employer for the amount specified in the certificate; and (2) Evidence that the employer was notified of the application for the entry of summary judgment in accordance with subsection 2.

Fines/PenaltiesSB 63 – UECA and other amounts owed Chapters 616C and 617 of the NRS add new sections to read as follows: 4. The court clerk, upon the filing of an application for the entry of summary judgment which complies with the requirements set forth in this section, shall forthwith enter a judgment against the employer in the amount of the debt, plus any attorney’s fees, interest and administrative costs, as set forth in the certificate. The Division shall serve a copy of the judgment, together with a copy of the application and the certificate, upon the employer against whom the judgment is entered, either by personal service or by mailing a copy to the last known address of the employer.

Fines/PenaltiesSB 63 – UECA and other amounts owed Chapters 616C and 617 of the NRS add new sections to read as follows: 5. An abstract of the judgment entered pursuant to subsection 4, or a copy thereof, may be recorded in the office of the county recorder of any county.

Fines/PenaltiesSB 63 – UECA and other amounts owed 6. From the time of its recordation, the judgment constitutes a lien upon all real and personal property situated in the county that is owned by the employer, or which the employer may afterward acquire, until the lien expires. The lien has the force, effect and priority of a judgment lien and continues for 6 years after the date of the judgment so entered by the court clerk unless sooner released or otherwise discharged.

Fines/PenaltiesSB 63 – UECA and other amounts owed Chapters 616C and 617 of the NRS add new sections to read as follows: 7. Within 6 years after the date of the recording of the judgment or within 6 years after the date of the last extension of the lien pursuant to this subsection, the lien may be extended by recording an affidavit of renewal in the office of the county recorder. From the date of recording, the lien is extended for 6 years to all real and personal property situated in the county that is owned by the employer or acquired by the employer afterwards, unless the lien is sooner released or otherwise discharged.

Fines/PenaltiesSB 63 – UECA and other amounts owed Sec. 2. & 6.NRS 616C.220 and 617.401, respectively, are amended to read as follows: ... 14. [In addition to any other liabilities provided for in this section, the Administrator may impose an administrative fine of not more than $10,000 against an employer if the employer fails to provide mandatory coverage required by the provisions of Chapters 616A to 616D, (617) inclusive, of NRS.

orkers’ Compensation Section