2023 Workers’ Compensation New Case Law Update
The Nevada Supreme Court/Court of Appeals published 4 opinions in workers’ compensation cases this past year. These 4 cases have had an immediate impact on the way cases are viewed and moving forward. While the summary below is my interpretation of the cases, it is important to know that others may view them differently and future cases may alter my opinion or the Court’s holdings.
Gilman v. CCSD (527 P.3d 624 (Nev. 2023).)
In this case, the claimant wanted to reopen their workers’ compensation claim that had previously closed. The claim was originally accepted for “cervical and thoracic strains only.” The claimant now wanted to reopen the claim for treatment to his lumbar spine, a body part not originally accepted. The Nevada Court of Appeals held that NRS 616C.065(7) that the failure to indicate the acceptance or denial of a claim for a body part does not constitute a denial or acceptance thereof. Further, NRS 616C.065(5) states that the acceptance or denial must be in writing.
So what does this mean moving forward:
1) just because a body part or condition is not listed on your claim acceptance determination does not mean it is necessarily barred from being included;
2) you may not need to appeal every claim acceptance determination in fear that conditions/diagnoses may change (I previously wrote a blog on this prior to this case. Read that blog here);
3) if you believe that a body part or condition needs to be treated or included in the claim, then a request should be submitted to the insurer/TPA.
The unknown would be what happens if your claim closes following a PPD. Does that cement the scope of your claim? In the Gilman case, the claimant had not been rated for a permanent partial disability.
LVMP v. Holland (527 P.3d 958 (Nev. 2023).)
The Holland case is an occupational disease case filed pursuant to NRS 617.457 for a heart condition. Holland was a police officer and in heart disease cases police officers are entitled to a conclusive presumption that the disease arose out of and in the course of the officer’s employment if the have served 2 years or more and contracts heart disease that renders them disabled, unless an exception applies. One of the exceptions is where there is a predisposing condition that the employee is notified about in writing failed to correct and had the ability to correct.
Holland had high triglycerides, low HDL and high LDL. Doctors told him he needs to eat low fat diet and do more exercising. When he went to file his work comp claim his triglycerides were double that of his last physical he had on the job. The Nevada Supreme Court held that you need to show you tried to correct the predisposing condition you do not actually need to correct it to overcome the exception. This case in my opinion has an analysis that can similarly applied to attempts to suspend benefits under NRS 616C.230(5).
Providence Corp. Development v. Buma (531 P.3d 1263 (Nev. 2023).)
The facts in a nutshell are: Buma was traveling for work and rode an ATV, after preparing for a conference, on a friend’s ranch and suffered a fatal injury. This case first went to the Supreme Court in 2019. In the first case, the Nevada Supreme Court adopted the traveling employe rule, which gave us a personal comfort doctrine. The personal comfort doctrine adopted by the Court stated that a traveling employee can recover workers’ compensation benefits for an injury not directly work-related if it occurs as a result of “eating, sleeping and ministering to personal needs away from home.” In 2019 the Court remanded the case back to the Appeals Officer to determine if Buma fell within the travelling employee rule or if he was on a distinct departure for a personal errand.
The Appeals Officer held that Buma was not entitled to the traveling employee rule because it was not foreseeable. This led to the case going to the Nevada Supreme Court a second time. This time Court made it very clear that “the employee need not demonstrate that their employer should have foreseen that the employee would engage in the specific activity that caused the employee’s injury.”
What is non-compensable would-be personal amusement ventures that tend to involve a personally motivated activity which takes the traveling employee on a material deviation in time or space from carrying out the trip’s employment-related activities.
Olvera v. Wynn Las Vegas (139 Nev. Adv. Op. 41 (Nev. 2023).)
This was a 2013 claim where the claim was accepted for injuries to the claimant’s head, scalp, right hip, cervical spine, thoracic spine, and lumbar spine. In 2014 the case closed with a PPD. In 2020, the claimant obtained a medical opinion that her lumbar injuries worsened, and she requested reopening. Reopening was denied by the TPA and reversed in part by the Appeals Officer. The Appeals Officer found that the claim should be reopened for the lumbar only.
Prior to this case, I was always under the belief that a claim is either open, in its entirety, or closed, in its entirety. However, the Nevada Court of Appeals held that “nowhere in the plain language [of NRS 616C.390(1)] does it say that a claim is required to be reopened for all body parts previously accepted in the claim, where there has been no change in circumstances as to those body parts.”
The impact of this case means that you must now show medical evidence that supports reopening of every body part for which you seek medical treatment.
