Workers’ Compensation More Information
Work accidents can be both physically debilitating and financially devastating. At Behzadi Law Offices, our goal is to protect your interests, and ensure you are provided benefits throughout the process, while working towards compensating you for your injuries. That means making sure you are provided properly calculated maintenance checks. That also means getting you all the medical care required for your injuries, including transfers to other physicians. If necessary, we can also pay for alternative ratings so that you are properly compensated for your disability.
Dealing with a work injury is difficult enough without the confusion of the workers’ compensation system. Behzadi Law Offices will ensure all your rights are preserved, appealed and litigated in order to maximize your claim. A to Z, Behzadi Law Offices has your entire claim covered.
Workers’ Compensation is a statutory system of providing benefits for physical harm that arises in the course and scope of (i.e., during) employment. Behzadi Law Offices in Las Vegas can help you file a claim with your employer under Nevada’s Industrial Insurance Act in order to maximize your rights to treatment and compensation under the law.
Filing the Claim
The Nevada legislature has established a scheme for workers’ compensation claims that begins with a two-step process. First, an injured employee must provide written notice of a work-related injury to the employer within seven (7) days of the injury. See NRS 616C.015(1). A C-1 form notice of injury must be filled out by the employee and given to the employer. Second, the employee must file a claim for compensation for the injury within ninety (90) days of the accident. See NRS 616C.020(1). The C-4 claim for compensation form must be filled out by the claimant and medical provider.
An injured employee is generally barred from receiving compensation if the employee fails to file a timely notice of injury or a claim for compensation. See NRS 616C.025(1). However, an insurer may excuse the failure to file a notice of injury or a claim for compensation if: (a) the injury or another cause beyond the employee’s control prevented filing the notice or claim; (b) the failure was caused by a mistake or ignorance of fact or law; (c) the failure was caused by a physical or mental inability; or (d) the failure was caused by fraud, misrepresentation or deceit. See NRS 616C.025(2).
Burden of Proof for a Workers Compensation Claim
In order to be a compensable injury, the employee must show by a “preponderance of the evidence” (general standard of proof in civil court) that the injury “arose out of and in the course of his or her employment.” (Legal standard for showing the injury occurred on the job.) See NRS 616C.150(1). The good thing about workers compensation law is that, unlike personal injury, the worker need not prove that the employer or anyone else was negligent. In general, you are entitled to compensation even if you are 100% at fault for your own injury with few exceptions (e.g., no compensation for an intentionally inflicted injury, or one occurring while intoxicated/under the influence or due to a failure to follow reasonable medical treatment). See NRS 616C.230.
However, in Nevada, the worker needs to show more than simply that an accidental injury occurred “in the course” of employment (i.e., on the job); the worker must also show the injury “arose out of” the employment, meaning showing a causal connection between the injury and the employee’s work. In other words, the worker must establish a link between workplace conditions and how those conditions caused the injury. For example, if you fall and injure yourself on your employer’s property because you are exercising on your time off, or because of a preexisting medical condition, your claim will likely be denied. In contrast, if you injure yourself because of a work related condition and duty, such as tripping on uneven flooring while delivering files to your employer, your claim should be accepted. See Mitchell v. Clark County Sch. Dist., 121 Nev. 179, 111 P.3d 1104 (2005).
Behzadi Law Offices in Las Vegas can help you enforce your legal rights and maximize the benefits you are entitled to under the law.
Driving to or From Work and Off Premises Accidents
Nevada looks to whether the employee is under the employer’s control in order to determine whether an employee is acting within the scope of employment when an accident occurs outside of the actual period of employment or off the employer’s premises. It has therefore adopted the “going and coming” rule, precluding compensation for most employee injuries that occur during travel to or from work. See MGM Mirage v. Cotton, 116 P.3d 56, 58, 121 Nev. 396, 399 (2005).
There are multiple exceptions to the going and coming rule, however, including (1) the premises-related exception (for injuries sustained on an employer’s premises while an employee is going to or from work within a reasonable interval before or after work), (2) the distinct benefit to employer exception (such as an accident occurring while “on call”) and police officer exception (considered on call while driving to and from work), (3) the travel time exception (when paid compensation for travel expenses at the time of incident), (4) the dual purpose journey exception (when on a bona fide business errand while simultaneously pursuing a personal interest at the time of incident), and (5) the special errand exception (when an injury occurs while the employee is in transit to or from the performance of an errand outside his or her normal job duties). See Bob Allyn Masonry v. Murphy, 124 Nev. 279, 287, 183 P.3d 126, 131 (2008).
If a claim is denied, you, the injured worker, have 70 days to appeal the letter and file it with the Hearings Division of the Nevada Department of Administration. The appeal is jurisdictional, which means if it is not timely filed, you will lose your right to appeal the decision, with very limited exceptions. See NRS 616C.315; Seino v. Emplrs Ins. Co., 121 Nev. 146, 111 P.3d 1107 (2005). Please contact Behzadi Law Offices so that we may help you with your claim.
Exclusive Remedy Rule and Exceptions to Employer’s Immunity from a Lawsuit
Employers in Nevada are obligated to procure workers’ compensation insurance for their employees with some limited exceptions, such as household domestic services. See NRS 616A.230; NRS 616A.110; NRS 616B.032; NRS 616B.612. The workers’ compensation system in turn provides the “exclusive” remedy for an accidental injury on the job so that the injured employee cannot generally sue a negligent employer or co-employee for injuries suffered on the job. See NRS 616A.020; Watson v. G.C. Assocs., 100 Nev. 586, 691 P.2d 417 (1984). Nor can a third party who has compensated an injured employee seek indemnity or contribution from the injured employee’s employer or co-employee. Kellen v. District Court, 98 Nev. 133, 642 P.2d 600 (1982); Aetna Casualty & Sur. Co. v. L. K. Comstock & Co., 684 F.2d 1267 (9th Cir. 1982).
Principal contractors are generally considered employers of their subcontractors, independent contractors and employees. NRS 616A.210. When principal contractors are licensed pursuant to NRS Chapter 624, their immunity from a lawsuit extends to any other party contracted by the principal, such as a subcontracting or independent contracting entity. NRS 616B.603(3)(a). See Richards v. Republic Silver State Disposal, 122 Nev. 1213, 148 P.3d 684 (2006) (that chapter governs the licensing of all contractors, who by definition are persons acting to “construct, alter, repair, add to, subtract from, improve, move, wreck or demolish any building . . . or other structure, project, development or improvement, or to do any part thereof”). Correspondingly, property owners who hire NRS Chapter 624-licensed contractors are, similarly, entitled to Nevada Industrial Insurance Act (“NIIA”) immunity from suits concerning industrial injuries arising out of risks associated with that licensed work or project.
If a principal contractor’s immunity does not extend to its statutory employees through a Chapter 624 license, it may still through the independent enterprise test under and Meers v. Haughton Elevator, 101 Nev. 283, 701 P.2d 1006 (1985). That statute provides that nonlicensed principal contractors are not statutory employers (only) when they contract with “independent enterprises.” An independent enterprise is in a different “trade, business, profession or occupation” than the nonlicensed principal contractor. Consequently, a nonlicensed principal contractor is not responsible for providing workers’ compensation coverage to the independent enterprise’s employees and remains subject to suit by those employees if they are injured. Richards v. Republic Silver State Disposal, Inc., 122 Nev. 1213, 148 P.3d 684 (2006).
There are numerous other exceptions to the exclusive remedy doctrine. Significantly, employers and co-employees can be sued for intentional “torts” or legal wrongs committed against the injured victim on the job. See Conway v. Circus Circus Casinos, Inc., 116 Nev. 870, 8 P.3d 837 (2000); Fanders v. Riverside Resort & Casino, Inc., 245 P.3d 1159, 126 Nev. Adv. Rep. 50 (2010).
Furthermore, “third-parties” (i.e., persons or entities outside the employer/employee relationship) can also be sued by the injured victim for injuries that occur on the job. American Fed. Sav. Bank v. County of Washoe, 106 Nev. 869, 802 P.2d 1270 (1990). In these cases, the injured victim is entitled to file a workers’ compensation claim based on his or her employment accident, and to also sue the third party at fault for the injury (e.g., a cab driver injured by another driver on the job). However, the workers’ compensation insurer may assert a lien and recoup some of the recovery from the at fault party. See NRS 616C.215.
Other exceptions to the exclusive remedy principle include suits for unlawful discharge of employee in retaliation for filing a workers’ compensation claim, Hansen v. Harrah’s, 100 Nev. 60, 675 P.2d 394 (1984), sexual discrimination, Switzer v. Rivera, 174 F. Supp. 2d 1097 (D. Nev. 2001), and when the injured victim is not a covered employee under the law. See e.g., Seput v. Lacayo, 122 Nev. 499, 134 P.3d 733 (2006).
Finally, should an employer fail to procure workers’ compensation insurance as required by law, they will be subject to severe penalties including the possibility of a suit by the employee with the legal presumption of negligence of the employer. See NRS 616B.636.