Nevada’s Use of the AMA Guides in Rating Injured Workers’ Permanent Impairment

By Virginia Hunt, Law Office of Virginia L. Hunt, Las Vegas, Nevada

5^th Edition of the Guides Is Required

Most states that utilize the AMA Guides to Evaluation of Permanent Impairment use the most recent edition of the Guides published by the AMA. Nevada, however, specifically requires that physicians and chiropractors on the approved list of rating doctors continue to use the 5th edition of the Guides as opposed to the most recent edition published by the AMA. Attorneys for injured workers and many rating doctors successfully lobbied the Nevada legislature in 2009 to pass a bill requiring continued use of the 5th edition, because they believed that most awards for serious injuries would be significantly lower if rated under the newer 6th edition.¹

No ADL Award on Spinal Injuries Pending Nevada Supreme Court Review

Rating physicians and chiropractors who perform permanent partial disability evaluations on injured workers with spinal injuries must follow the criteria in Chapter 15 of the AMA Guides, 5^th edition. That includes a consideration of how the spinal injury affects the injured worker's ability to perform activities of daily living (ADL's). The rating doctor may add 1% to 3% additional whole person impairment for how the injury affects ADL's. However, in June 2008, the Nevada Self-Insurers Association (NSIA) obtained a partial stay from a Clark County, Nevada district court judge in a lawsuit brought by the NSIA against the Division of Industrial Relations, the state agency responsible for overseeing Nevada's workers' compensation system.

The partial stay in Nevada Self-Insurers Associations v. DIR, states that until the ADL issue is decided by the Nevada Supreme Court, rating doctors are to continue to include impairments for ADL's when appropriate under the Guides, but insurers are not obligated to pay that part of the award for ADL's. Injured workers who can wait it out, and elect to receive their award in installments instead of a lump sum, will receive their award for ADL's when, and if, the Nevada Supreme Court decides that Nevada law does not preclude awards for ADL's. Most injured workers cannot wait and choose to receive a lump sum award of the uncontested PPD award, thereby forfeiting any award of ADL's.

Rating for Psychological Impairment is Limited

Nevada law limits permanent partial disability awards for “physical impairment”, and therefore, purely psychological conditions resulting from an industrial accident are not rated.² A 2009 amendment to the law, however, allows a rating doctor to consider psychological impairment during a rating for those rare stress claims that are accepted under the narrow confines of the Nevada law that allows claims for injury or disease caused by stress. NRS 616C.180 essentially limits stress claims to mental injuries caused by extreme stress in times of danger, and excludes any claims for stress caused by job layoff, termination, disciplinary action, or gradual mental stimulus at work.

DIR Oversees Rating Doctors and the Rating Process

The Division of Industrial Relations for the Department of Business and Industry for the State of Nevada is responsible for maintaining a list of physicians and chiropractors who have passed a test on how to apply the AMA Guides. Unless a claimant or his attorney agrees with an insurer or third-party administrator on a particular rating doctor, the insurer is required to obtain the next name from DIR's rotating list of rating doctors. The PPD award is calculated by using the percentage of impairment given by the rating doctor, the average monthly wage of the injured worker, and the injured worker's age at the time the award is calculated. Injured workers may accept to receive up to the equivalent of a 25% PPD impairment in a lump sum, with the remainder of any percentage over 25% payable in installments until the injured worker is 70-years old. Although the PPD percentage is not based on the injured worker's ability to return to work under the AMA Guides, under Nevada law, the PPD percentage governs the length of a retraining program that can be offered to a claimant who needs vocational retraining.

Footnotes

1. Section 3 of S.B. 195 amends NRS 616C.110.

2. NRS 616C.490(5) states that no factors others than the degree of physical impairment of the whole man may be considered in calculating the entitlement to compensation for a permanent partial disability. This is the same provision that the Self-Insurers used to convince the district court judge that an award for ADL's is impermissible under Nevada law.