Las Vegas Injury Lawyers Blog

The Nevada Supreme Court has ruled that NRS 616B.227 requires untaxed tip income to be included in the average monthly wage calculation to determine workers' compensation benefits, as long as the employee reported the tips to his employer. Sierra Nevada Administrators v Asen Negriev.

Asen Negriev worked as a bartender at the Big Inning Sports Pub in Las Vegas. Negriev was paid $8.00 an hour by the pub. He also received tips from his customers which he reported to the pub. The pub did not report Negriev's tips on his Form W-2, nor did Negriev report the tips on his federal or state income tax returns.

When Negriev fell and injured his back while going into the pub's kitchen, Negriev filed a workers' compensation claim with the pub's workers' compensation carrier, Sierra Nevada Administrators. In calculating Negriev's workers' compensation benefits, Sierra refused to include any compensation Negriev received from his unreported tips. Negriev appealed Sierra's average monthly wage calculation to an administrative hearing officer who affirmed Sierra's average monthly wage calculation. According to the hearing officer, because Negriev did not pay taxes on his tips the tips were not compensation under NRS 616B.227. Negriev appealed. The appeals officer reversed the hearing officer's decision and ordered Sierra to include Negriev's unreported tip income in the calculation of Negriev's workers' compensation benefits. According to the appeals officer, the unreported tips met the requirements of NRS 616B.227 because Negriev faithfully reported his tips to the pub, and it was the pub's fault for not including Negriev's tips on his paychecks or Form W-2.

Sierra filed a petition for judicial review in the district court that was denied. Sierra appealed.

NRS 616B.227( 4) provides, in pertinent part, that a "private carrier ... shall calculate compensation for an employee on the basis of wages paid by the employer plus the amount of tips reported by the employee." NRS 616B.227(1) further requires that an employer make a copy of each report that an employee files regarding his or her tips in order to report this amount to the IRS. The Supreme Court thus concluded that NRS 616B.227 requires a workers' compensation carrier to include tip income in an employee's average monthly wage calculation if the employee reported the tip income to his or her employer, which Negriev did. Further, that an employee, such as Negriev, did not actually pay taxes on the tip income is irrelevant to the average monthly wage calculation.

Continue reading "Nevada Supreme Court Rules Untaxed Tip Income Is Includible in Calculating Workers' Compensation Benefits - Las Vegas Employment Law Attorney Andre Lagomarsino" »

Professional athletes are employees. When injured on the job, even those who earned million dollar salaries are covered employees under most states' workers' compensation laws. However, because many athletes favor filing for benefits in states that pay out a higher workers' compensation benefit, states such as California are growing weary of workers' compensation claims from former NFL Players.

Recently, the 9th U.S. Circuit Court of Appeals denied California workers' compensation payment to former Tennessee Titans offensive lineman Bruce Matthews. According to the 9th Circuit Court of Appeals, Matthews did not allege "sufficient contacts with California to show that his workers' compensation claim comes within the scope of California's workers' compensation regime." Furthermore, Matthews did not establish that the arbitration award violated "an explicit, well-defined and dominant public policy of the state of California. Because Matthews did not show that the award deprived him of something to which he is entitled under state law, he likewise did not show that it violated federal labor policy,"

Though born in North Carolina, Matthews attended high school in Arcadia, CA. Accepted to play football at the University of Southern California, Matthews became achieved "All-American" status and was drafted in the first round of the 1983 NFL draft. During his 19-year NFL career, he played for one team, the Houston Oilers, who later became the Tennessee Titans. Matthews currently is the offensive line coach for the Titans. Though in his football career he played several NFL games in the state of California, Matthews never played for a California NFL franchise.

Matthews filed for workers' compensation insurance benefits in California in 2008, six years after he retired in 2002, for the pain and disability due to injuries he sustained during his career. The Titans and the NFL Management Council opposed the filing arguing that Matthews' application for benefits in California breached an employment agreement requiring workers' compensation claims to be decided under Tennessee law. The decision by the three-judge panel on the 9th Circuit Court of Appeals to deny workers' compensation benefits to Matthews upheld an arbitration award barring the NFL Hall of Famer from pursuing his workers' compensation claim under California law.

Continue reading "Las Vegas Workers' Compensation Attorney Andre Lagomarsino - California Courts Grow Weary of Workers' Compensation Claims from Former NFL Players" »

According to a New Mexico Court of Appeals, not only does the Workers' Compensation Act apply regardless of whether the employer or employee is responsible for the injury, the Workers' Compensation Act apply regardless of whether the injury was caused by an inherent risk of the job.

Alfredo Castillo worked as a warehouse laborer at Caprock Pipe & Supply. Because the warehouse was open, pigeons frequently flew through and roosted in the warehouse, exposing Caprock's workers to roosting pigeons and pigeon feces. Castillo contracted psittacosis, an infection caused by bacteria found in bird droppings, and died. His family then filed a wrongful death suit. Caprock filed a motion to dismiss the wrongful death suit, arguing that Castillo's death arose out of and in the course of his employment, therefore the exclusivity provisions of the Workers' Compensation Act applied, and thus Castillo's family was limited to workers' compensation benefits.

After reviewing the facts, the district court agreed with Caprock that workers' compensation laws applied and thus barred Castillo's family from pursuing a wrongful death suit. Caprock's Motion to Dismiss was granted. The Castillo family appealed.

The appeals court sided with the district court. For the Worker's Compensation Act to apply and bar a cause of action by an employee, three requirements must be met:

1. [A]t the time of the accident, the employer has complied with the provisions thereof regarding insurance;
2. [A]t the time of the accident, the employee is performing service arising out of and in the course of his employment; and
3. [T]he injury or death is proximately caused by an accident arising out of and in the course of his employment and is not intentionally self-inflicted.

While all parties agreed that the first two requirements were met, the dispute lay within the third requirement. Castillo's family argued that the "accident" did not arise out of and in the court of Castillo's employment.

According to the appeals court, the phrase, in the course of employment, "relates to the time, place, and circumstances under which the accident takes place." Flores v. McKay Oil Corp., 2008-NMCA-123, ¶ 10, 144 N.M. 782, 192 P.3d 777. This means that "an injury occurs in the course of employment when it takes place within the period of employment, at a place where the employee may reasonably be, and while the employee is reasonably fulfilling the duties of employment or doing something incidental to it." Grimes v. Wal-Mart Stores Inc., 2007-NMCA-028, ¶ 7, 141 N.M. 249, 154 P.3d 64.

Furthermore, case law has established that "'arising out of employment' . . . require[s] a showing that the injury was caused by a peculiar or increased risk to which claimant, as distinguished from the general public, was subjected by his employment." Berry v. J.C. Penney Co., 74 N.M. 484, 485-86, 394 P.2d 996, 997 (1964). Castillo's injury was caused by his exposure to pigeons and pigeon feces within Defendant's warehouse. Castillo had a peculiar or increased risk of being exposed to pigeons solely as a result of his employment in a warehouse occupied by pigeons. And it appears that this risk was particular to Castillo and his fellow laborers at this warehouse and not the general public because the allegations of roosting were limited to the warehouse.

The requirement that the injury occur in the course of his employment was met. His injury is nonetheless exclusively covered by the" workers' compensation laws. Sonya Castillo, et al v. Caprock Pipe & Supply, Inc. 2012 N.M.

Continue reading "Las Vegas Workers' Compensation Attorney Andre Lagomarsino - Appeals Court Rules Death by Pigeon Constitutes Injury under Workers' Compensation Act" »

An appeals court has held that a waiter who was "injured" while attempting to swallow a "piece of quesadilla that was too big for his esophagus" is not eligible for workers' compensation benefits.

Michael Bernard was a host and waiter at a TGI Friday restaurant. As part of his duties, he was required to make food recommendations to customers. As customary in many restaurants, TGI Friday required its staff to attend food tastings for menu items. While attendance at the food tastings was mandatory and conducted while the staff was on-the-clock, no staff member was required to eat anything they did not want to eat and was not disciplined if he or she chose not to sample a menu item.

In January 2010, while sampling a quesadilla, Bernard began to choke. The piece of quesadilla lodged in his throat, perforated his esophagus, and caused a collapsed lung. Bernard underwent emergency surgery at a local hospital. Thereafter he filed a workers' compensation claim arguing that his injuries occurred in the course of his employment and arose out of an actual risk of his employment. Bernard made no allegation that the quesadilla was unusual or defective in any way or that he had previously had problems swallowing food, thereby putting TGIF Friday on notice that his injury was foreseeable. Nor did he argue that the piece of quesadilla in some way triggered his Crohn's disease, which he had suffered with since childhood.

The Virginia Workers' Compensation Commission denied the claim holding that though Bernard's injury occurred in the course of his employment, his failure to fully chew the quesadilla did not arise out of his employment. "In cases of injury due to food provided by the employer, we have found compensable injuries only when there was something unusual or abnormal about the food, i.e. it was spicy, hot in temperature, or contained a hard object. Here, there was no problem documented with the quesadilla which became stuck in the claimant's throat and caused his injury. The claimant did not assert that it was something that he should not eat because of his medical condition. The claimant would have been equally exposed to any risk connected with eating an ordinary quesadilla had he eaten it apart from his employment."

Bernard appealed.

The Virginia Court of Appeals held that the Workers' Compensation Act applies when the claimant "satisfies both the 'arising out of' and the 'in the course of' prongs of the statutory requirements of compensability." Butler v. S. States Coop., Inc., 270 Va. 459, 465, 620 S.E.2d 768, 772 (2005). "The concepts 'arising out of' and 'in the course of' employment are not synonymous and both conditions must be proved before compensation will be awarded." Clifton v. Clifton Cable Contracting, LLC, 54 Va.App. 532, 539, 680 S.E.2d 348, 352 (2009).

While TGIF provided Bernard with the quesadilla, while he was working, and encouraged him to eat it--thus his injury occurred in the course of his employment. We disagree, however, that his failure to fully chew the quesadilla and his resulting injury arose out of his employment. An employee who trips while walking up a staircase at work cannot recover compensation unless something about the steps (or some other condition of the workplace) presented a hazard or danger peculiar to the worksite. Even though the employer provided the steps, and encouraged the employee to use them, if there is "nothing unusual about or wrong with the steps," an employee who trips over them cannot show the accident "arose out of" the employment. Johnson, 237 Va. at 185-86, 376 S.E.2d at 76.

Denial of workers' compensation benefits upheld. Bernard V. Carlson Companies TGIF, Record No. 2590-11-2, July 17, 2012.

Continue reading "Las Vegas Workers' Compensation Attorney Andre Lagomarsino - Appeals Court Rules Choking on a Quesadilla Does Not Qualify for Workers' Compensation Benefits" »

It's a regular day ... or night. You get up; you go to work. You're working hard, when the unthinkable happens - you're injured while doing your job.

"Regardless of whether you caused the injury or the injury is due to the fault of your employer, with workers' compensation, you can get lost compensation and reimbursement for your medical expenses," explained Las Vegas Workers' Compensation Attorney Andre Lagomarsino. "Workers' compensation is essentially no-fault insurance for workplace injuries."

To get the ball rolling, though, it is important that an employee notify his or her employer that he or she has been injured on the job. Furthermore, the employee should give notification to the employer as soon as medically possible after the injury occurs. "Basically, if getting medical treatment for your injury is your first and foremost concern, notifying your employer of your work place injury should be 1a," said Attorney Lagomarsino, who has handled numerous workers' compensation cases in Las Vegas and the state of Nevada.

Under Nevada statutes, an employee injured on the job should give notice of his or her injury to his or her employer within seven days of the injury. Form C-1 - Notice of Injury or Occupational Disease Incident Report is used to give notice and is submitted whether or not the employee required immediate medical treatment. After both the employee and employer sign Form C-1, the employer will give the employee a copy then keep a copy of the Form C-1 on file for three years. If an employer makes any effort to get the employee to suppress a questionable claim, under Provision 1 of Nevada Revised Statutes 616D.120, the employer can be fined $1,500 for an initial violation. Subsequent violations each carry a $15,000.00 fine.

An employee has 90 days from the date of the injury to seek medical treatment. If the employee does seek medical treatment, the employee and the health care provider will then fill out Form C-4 - Employee's Claim for Compensation/Report of Initial Treatment. Both the employee and the health care provider will sign the form C-4.

Sometimes if the health care provider does not believe the employee's injury or illness is work-related, the health care provider will not sign the Form C-4, believing his or her signature indicates the employee's injury is work-related. However, this is incorrect. The health care provider's signature just acknowledges the information within the form. Form C-4 provides a space for a health care provider to indicate if he or she feels the injury is not work-related.

Generally, a treating physician or chiropractor will file Form C-4 within 3 days of the start of treatment. A copy of the C-4 is given to the injured employee and the employer. After receiving the completed Form C-4, the employer has six working days to complete a copy of the Form C-3 - Employer's Report of Industrial Injury or Occupational Disease and forward it to the insurer. The Form C-3 allows the employer to explain how he or she believes the injury or illness occurred and whether it was work-related.

Continue reading "Las Vegas Workers' Compensation Attorney Andre Lagomarsino: Workers' Compensation: Employees and Employers Are Required to Give Notice " »

Though the workers' compensation laws in most states define who is an employee, and therefore who is eligible for workers' compensation benefits, most states adhere in some manner to the checklist used by the Internal Revenue Service (IRS) to identify when a worker should be treated as an employee and when a worker should be treated as an independent contractor. See IRS Topic 762 - Independent Contractor v Employee. Basically, according to the IRS, a worker should be treated as an employee if the employer has:

Behavioral Control: the right to direct and control what work the worker accomplishes and how the worker does the work.

Financial Control: the right to direct or control the financial and business aspects of the worker's job, which includes:

• The extent to which the worker has unreimbursed business expenses
• The extent of the worker's investment in the facilities or tools used in performing services
• The extent to which the worker makes his or her services available to the relevant market
• How the business pays the worker, and
• The extent to which the worker can realize a profit or incur a loss

Type of Relationship: a relationship with the worker and that relationship includes:

• Written contracts describing the relationship the parties intended to create
• Whether the business provides the worker with employee-type benefits, such as insurance, a pension plan, vacation pay, or sick pay
• The permanency of the relationship, and
• The extent to which services performed by the worker are a key aspect of the regular business of the company

Professional athletes are employees. Therefore, professional athletes, even those with million dollar salaries, are covered employees under most workers' compensation laws and entitled to benefits when injured on the job. Recently, however, during the labor negotiation between the NFL Players Association (NFLPA) and the National Football League (NFL), the issue of how professional athletes have been allowed to forum shop their workers' compensation benefits came front and center.

While every state pays basic medical benefits essentially uniformly, states pay out additional medical benefits, disability benefits and death benefits differently. For instance, the state of California has allowed retired NFL players to apply for workers' compensation in California if the player played in at least one scheduled NFL game within the state. Because California generally pays out a higher workers' compensation benefit than many other states, and California's statute of limitations is longer, many retired NFL players file for workers' compensation benefits in California instead of the state or states where the team(s) they played for is (are) located.

Since professional teams, including NFL teams, are self-insured, higher workers' compensation benefits create higher insurance costs. Therefore, many NFL teams now include a forum selection clause in their player contracts that only allows a current or once retired NFL player to file for workers' compensation benefits in a certain state. And the recent case of Booker v Cincinnati Bengals should make more NFL, and other professional, teams, begin to include a forum selection clause for workers' compensation in their player contracts. Booker v Cincinnati Bengals, Case No. ADJ4661829 (May 1, 2012)

In Booker, Vaughn Booker, a former player for the NFL Cincinnati Bengals, filed a workers' compensation claim in California. During his career, Mr. Booker played one of his 48 scheduled football games in California. California denied Booker's claim on the basis that the state of California did not have jurisdiction. California held that a forum selection clause in Booker's contract with the Bengals gave jurisdiction to Ohio. Specifically, the clause said the following:

"As a tangible incentive for the club, to employ the services of players, the players and promises agree that the demand for workers' compensation, dispute or action resulting from the use of the player with the club is to be subjected 'compensation laws of Ohio and are not just workers, workers' compensation laws of another state. The player further agrees that any claim, filing, petition or cause of action in any way on the rights of workers compensation or benefits from the use of the player with the club, including, without limitation, the applicability and enforceability of this change, only and exclusively in the courts of Ohio, Industrial Commission of Ohio, or any other such court to be brought Ohio has jurisdiction over the matter. "

California also noted that Booker only temporarily worked in California, Ohio and California had similar workers compensation laws, Ohio laws covered Booker when he was playing (working) in California; and Ohio had reciprocity with California in accordance with section 3600.5(b).

Continue reading "Las Vegas Workers' Compensation Attorney Andre Lagomarsino: Professional Athletes and Workers' Compensation " »

According to the United States Bureau of Labor Statistics, the metropolitan Las Vegas area has an available work force of close to a million with over 800 thousand currently employed. In 2010 the state of Nevada reported 4 thousand incidences of nonfatal occupational injuries and illness.

Under Nevada's workers' compensation statutes, employers not exempt by statute, are required to provide workers' compensation insurance to their employees for injuries they sustain in the course and scope of their employment. NRS 616C.150(1). Workers' compensation covers medical treatment, compensation for lost work time due to temporary total or permanent disability, awards for permanent or total disability, death benefits to dependents, vocational rehabilitation, and other related expenses.

Under NRS 616A.020, in exchange for these benefits, the employee cannot sue their employer. Furthermore, a Nevada employer cannot deny benefits to an employee for work-related injuries, regardless of whose fault caused the injury.

These workers' compensation statutes apply whether the injured worker is a U.S. citizen, permanent resident, or illegal immigrant working illegally in the U.S. If the workplace injury occurs in Nevada, and the injured worker proves he or she was working for a Nevada employer at the time the workplace injury occurred, an illegal immigrant is entitled to workers' compensation benefits. One exception, however, is an illegal immigrant is not entitled to workers' compensation benefits for vocational rehabilitation.
Additionally, illegal immigrants may be entitled to receive temporary total disability benefits which are payable at 66 2/3 of their average monthly wage, up to the state maximum. The illegal immigrant just must show that a treating physician has prohibited them from working because of the workplace injury. The illegal immigrant may also be entitled to receive a permanent partial disability award for any permanent injuries.

Continue reading "In Nevada, Illegal Immigrants Get Same Workers' Compensation Benefits as U.S. Citizens and Permanent Residents" »

In 2009, 12% of Nevada's workplace fatalities were caused by workers falling to a lower level. Under Nevada's workers' compensation statutes, employers not exempt by statute, are required to provide workers' compensation insurance to their employees for injuries they sustain in the course and scope of their employment. NRS 616C.150(1). Workers ' compensation covers medical treatment, compensation for lost work time due to temporary total or permanent disability, awards for permanent or total disability, death benefits to dependents, vocational rehabilitation, and other related expenses.

While workers' compensation has generally been awarded regardless of fault (employer or employee), the Nevada business community now wonders if a recent decision by the Nevada Supreme Court will open the door for the employee's fault to be considered as a factor in determining workers' compensation awards.

Under NRS 616A.020 exclusive remedy doctrine, in exchange for an entitlement to benefits, an employee cannot sue their employer and an employer cannot deny benefits to an employee for work-related injuries, regardless of whose fault caused the injury.

In Fitzgeralds Casino/Hotel and Cannon Cochran Management Services, Inc. versus Gary Mogg, Mogg, a security guard, injured himself when he fell over his chair while trying to put his feet on top of his desk. Fitzgerald's Casino/Hotel v. Mogg, No. 55818 (11/18/11). Fitzgeralds Casino and Cannon Cochran denied Mogg's claim for workers' compensation benefits. An appeals officer reversed the denial and awarded Mogg workers' compensation benefits.

Fitzgeralds Casino and Cannon Cochran filed an appeal of the appeals officer's decision with the District Court. The District Court upheld the appeals officer's decision. Fitzgeralds Casino and Cannon Cochran filed a further appeal with the Nevada Supreme Court raising two primary issues: 1) whether Mogg's injuries arose out of and in the scope of his employment, and 2) whether Mogg's conduct was barred by an implied prohibition against such conduct so as to avoid the application of the personal comfort doctrine.

Regarding both issues, the Nevada Supreme Court found that "injuries resulting from employment-related risks, such as a defective chair, are 'all the obvious kinds of injur[ies] that one thinks of at once as industrial injur[ies],' however "where an injury is caused by a condition personal to the employee, such as a bad knee, epilepsy, multiple sclerosis or the like, or while engaging in unreasonable personal comfort activities, compensation for such an injury is generally unavailable." Further, if the chair was not defective, was Mogg, because of his job, at an increased risk for injury, which is compensable, than the general public would be, which is not compensable. Finding no evidence from the appeal's officer to answer these questions, the Nevada Supreme Court reversed the grant of workers' compensation to Mogg and remanded the case back to the appeal's officer for further findings.

Continue reading "Nevada Supreme Court Threatens Workers' Compensation Benefits" »