To add a boo boo boo to the holidays, the Nevada Supreme Court has reversed an appeal from a district court order denying a petition for judicial review in a workers’ compensation action, thus preventing workers injured on the job from receiving full disability compensation awards.
In Public Agency Compensation Trust v. Blake, 127 Nev. Adv. Op. 77 (2011), the respondent, Dale Blake, injured his back during the course and in the scope of his employment on December 15, 2004. Prior to this injury, in 1982, 1983, 1993, and 1995, Mr. Blake had four other work related incidents which caused injury to his back.
Under Nevada Revised Statutes workers who incur nonfatal occupational injuries and illnesses are entitled to benefits, regardless of fault. In determining the amount of worker compensation benefits the amount of the worker’s impairment must be calculated by a physician after the worker is deemed to be “stable and ratable” (after medical treatment the injured portion of the worker’s body is as well as it can be but there is still impairment).
For his 1995 injury and using the second edition of the AMA guidelines, Mr. Blake’s permanent partial disability (PPD) was rated as 14% of a whole person and his worker compensation benefits calculated accordingly. For his 2004 injury, Mr. Blake was deemed under the fifth edition of the AMA guidelines to have a PPD of 40% of a whole person. Mr. Blake’s worker compensation benefits were calculated by subtracting his previous PPD rating of 14% from his new rating of 40%. When appellant Public Agency Compensation Trust (PACT), which was the insure of record for Mr. Blake’s employer when the 2004 injury occurred, questioned whether a 14% rating under the old guidelines was equivalent to a 14% rating under the new guidelines, Mr. Blake’s physician reviewed his findings.
In a filed addendum to his original evaluation, the physician did not address whether PPD rating calculations would be identical under the old and new guidelines. The physician did state the data was insufficient to determine Mr. Blake’s condition and PPD rating prior to his 2004 injury; however the new guidelines in the fifth edition of the AMA Guides allowed for an estimate of the previous impairment. The physician estimated the previous impairment had a rating of 23%, not 14%, and worker compensation benefits for the 2004 injury should thus be calculated using a 17%, not a 26%, impairment rating. On appeal, Mr. Blake’s original worker compensation benefits based on a 26% impairment rating was reinstituted and this decision was upheld by the district court. PACT appealed the district court’s decision.
Nevada’s Supreme Court subsequently ruled that “NRS 616C.490 (9) is plain and unambiguous and requires that the calculations for prior and subsequent injuries be reconciled by first using the current edition of the AMA Guides to determine both the percentage of the entire disability and the percentage of the previous disability, and then subtracting the latter number from the former to calculate the award for the current injury. We further conclude that to the extent that NAC 616C.490 allows for computation of PPD compensation without reconciliation of the different editions of the AMA Guides, it impermissibly conflicts with NRS 616C.490 and is invalid.”
The high court then held Mr. Blake’s worker compensation benefits were thus calculable with a 17% impairment rating. Based on this ruling Nevada’s Division of Industrial Relations (DIR), which reviews physician impairment evaluations, has stated it will no longer utilize NAC 616C.490 (4) in reviewing impairment evaluations nor correct rating errors.
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