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Workers’ Compensation Update: First Responders’ Heart and Lung Claims
Nevada Supreme Court clarifies burden of proof in defense to predisposing conditions:
Under both the heart and lung statutes at NRS 617.455(7) and NRS 617.457(11), an insurer/employer can assert as an affirmative defense the failure of the employee to correct correctible predisposing conditions in which the employee was ordered to correct in writing by the examining physician after an annual examination. The Nevada Supreme Court has now clarified the burden of proof in these cases in LVMPD v. Holland, 139 Nev. Adv. Op. 10 (Apr. 20, 2023), linked here. The initial burden is on the employee to establish disablement and the statutory requirements to qualify for the conclusive presumption. Then, the burden is on the employer/insurer to satisfy the elements of the affirmative defense and an employer/insurer cannot rely on the lack of evidence to satisfy this burden. The employee then has the opportunity to rebut the employer/insurer evidence if successfully does so, the employee will get the benefit of the presumption.
DIR enforcement of benefit penalties in heart and lung claim denial appeals:
Both NRS 617.455(11) and NRS 617.457(16) provide for an additional penalty that DIR may at its discretion order up to $200/day from the date an appeal is filed until the date a final decision is issued in heart and lung claim denial cases where the denial is reversed. This issue and the calculation of this penalty is currently being litigated. However, employers/insurers need to be aware that this penalty is now being implemented when making decisions to do a medical investigation and to make sure denial of heart/lung claims is issued as expeditiously as possible.
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