Nevada Attorney for Injured Workers v. Nevada Self-Insurers Ass'n

225 P.3d 1265, 126 Nev. 74, 126 Nev. Adv. Rep. 7, 2010 Nev. LEXIS 6
CourtNevada Supreme Court
DecidedFebruary 25, 2010
Docket51859
StatusPublished
Cited by32 cases

This text of 225 P.3d 1265 (Nevada Attorney for Injured Workers v. Nevada Self-Insurers Ass'n) is published on Counsel Stack Legal Research, covering Nevada Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Nevada Attorney for Injured Workers v. Nevada Self-Insurers Ass'n, 225 P.3d 1265, 126 Nev. 74, 126 Nev. Adv. Rep. 7, 2010 Nev. LEXIS 6 (Neb. 2010).

Opinion

*76 OPINION

By the Court,

Hardesty, J.:

In this appeal, we consider whether a workers’ compensation regulation contradicts the statutory provisions for determining the percentage of an employee’s disability resulting from a work-related spinal injury. Respondent Nevada Self-Insurers Association (the Association) filed a petition with appellant State of Nevada Department of Business and Industry, Division of Industrial Relations (DIR), requesting that DIR amend one of its regulations to conform to statutory provisions that prohibit physicians from considering factors other than a person’s physical impairment when evaluating a work-related injury. After DIR denied the Association’s petition, the Association filed a complaint for declaratory relief in the district court, which the district court granted, concluding that DIR’s regulation violated applicable statutory provisions by allowing physicians to consider a person’s ability to perform activities of daily living.

NRS 616C. 110(1) requires that DIR adopt the fifth edition of the American Medical Association Guides to the Evaluation of Permanent Impairment (Linda Cocchiarella & Gunnar B.J. Andersson eds., 5th ed. 2000) (AMA Guides), for use in all permanent partial disability examinations. NRS 616C. 110(2) also authorizes DIR to amend the applicable regulations, as it deems appropriate, but those amendments “[mjust not consider any factors other than the degree of physical impairment of the whole man in calculating the entitlement to compensation.” NRS 616C.110(2)(c). In accordance with this statute, DIR adopted a regulation incorporating the fifth edition and also adopted NAC 616C.476, which prohibits the utilization of certain chapters of the AMA Guides but implicitly permits physicians and chiropractors to consider a person’s ability to perform activities of daily living when making a disability impairment rating for spinal injuries.

The Association maintains that language in NRS 616C.110(2)(c) and NRS 616C.490(5) providing that, in calculating an employee’s entitlement to compensation for a permanent partial disability, the only factor to be considered is “the degree of physical impairment of the whole man,” prohibits consideration of activities of daily living. Thus, the parties to this appeal dispute whether allowing *77 rating physicians to take into account a spinal injury’s impact on a person’s activities of daily living is an improper consideration of pain — something other than “physical impairment” — in violation of Nevada law.

We determine that Nevada’s statutory scheme and the adoption of the fifth edition of the AMA Guides indicate the Legislature’s intent that activities of daily living should be taken into consideration when evaluating work-related spinal injuries. We conclude that evaluating activities of daily living is not an improper consideration of subjective pain complaints or chronic pain because, prior to assessing a person’s ability to perform activities of daily living, an objectively identifiable spinal injury must be present; thus, NAC 616C.476 does not violate NRS 616C.110(2)(c) or NRS 616C.490(5). 1 Accordingly, we reverse the order of the district court.

FACTS AND PROCEDURAL HISTORY

The AMA Guides, fifth edition

The AMA Guides was originally published in 1971 to establish “a standardized, objective approach to evaluating medical impairments” for purposes of workers’ compensation benefits. AMA Guides, supra, § 1.1, at 1. The AMA Guides set forth impairment criteria that certified rating physicians and chiropractors are able to use to evaluate injured workers and give them an “[impairment percentage[ ] or rating[ ].” Id. § 1.2, at 4.

Impairment ratings reflect functional limitation, rather than disability, and demonstrate the severity of the medical condition and the “degree to which the impairment decreases an individual’s ability to perform common activities of daily living.” Id. Activities of daily living do not include work activities, and instead consist of everyday activities such as: self-care, personal hygiene, communication, physical activity (sitting, standing, walking, reclining, climbing stairs), sensory function (taste, smell, tactile feeling, *78 sight, hearing), nonspecialized hand activity (grasping, lifting, tactile discrimination), travel (riding, driving, flying), sexual function, and sleep. Id.

To evaluate the severity that a person’s injury has on activities of daily living, a physician applies his or her “knowledge of the patient’s medical condition and clinical judgment.” Id. § 1.2, at 5. Once the rating physician or chiropractor determines the impairment rating, then the insurance provider considers the impairment rating in conjunction with other factors, such as the worker’s age, education, and previous experience, to establish disability. See id. § 1.2, at 8; NRS 616C.490(2).

Chapter 15 of the fifth edition of the AMA Guides, governing injuries of the spine, is most frequently used for impairment evaluations. See Steven Babitsky & James J. Mangraviti, Jr., Understanding the AMA Guides in Workers’ Compensation § 4.05 (4th ed. 2008) (Understanding the AMA Guides). Under the more utilized of the two methods for determining spinal impairment ratings, 2 there are different categories of spine impairments. AMA Guides, supra, § 15.4, at 384. Distinguishable from the fourth edition of the AMA Guides, the fifth edition provides that an impairment rating for each category can be adjusted up to three percent to account for treatment results and their impact on a person’s ability to complete activities of daily living. See Understanding the AMA Guides, supra, § 4.02(E); see AMA Guides, supra, § 15.4, at 384. Notably, to award the additional range of up to 3 percent, objective medical evidence must establish that a permanent physical impairment exists. Understanding the AMA Guides, supra, § 4.05(C).

Free access — add to your briefcase to read the full text and ask questions with AI

Related

SER (GEORGIO) v. STATE
141 Nev. Adv. Op. No. 57 (Nevada Supreme Court, 2025)
DOE DANCER I VS. LA FUENTE, INC.
2021 NV 3 (Nevada Supreme Court, 2021)
POOLE VS. NEV. AUTO DEALERSHIP INV.'S, LLC
2019 NV 39 (Nevada Supreme Court, 2019)
DEMARANVILLE VS. CANNON COCHRAN MGMT. SERV.'S, INC.
2019 NV 35 (Nevada Supreme Court, 2019)
Poole v. Nev. Auto Dealership Invs.
Court of Appeals of Nevada, 2019
Knickmeyer v. State of Nevada
2017 NV 84 (Nevada Supreme Court, 2017)
KNICKMEYER VS. STATE, EX. REL. EIGHTH JUD. DIST. CT.
2017 NV 84 (Nevada Supreme Court, 2017)
Knickmeyer v. State of Nevada
Court of Appeals of Nevada, 2017
DYKEMA VS. DEL WEBB COMMUNITIES, INC.
2016 NV 82 (Nevada Supreme Court, 2016)
NATIONSTAR MORTG. VS. RODRIGUEZ
2016 NV 55 (Nevada Supreme Court, 2016)
HORIZONS AT SEVEN HILLS VS. IKON HOLDINGS
2016 NV 35 (Nevada Supreme Court, 2016)
VU (PHONG) VS. DIST. CT. (GAMMICK)
2016 NV 21 (Nevada Supreme Court, 2016)
PIROOZI, M.D. VS. DIST. CT. (HURST)
2015 NV 100 (Nevada Supreme Court, 2015)
Piroozi v. Eighth Jud. Dist. Ct.
2015 NV 100 (Nevada Supreme Court, 2015)

Cite This Page — Counsel Stack

Bluebook (online)
225 P.3d 1265, 126 Nev. 74, 126 Nev. Adv. Rep. 7, 2010 Nev. LEXIS 6, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nevada-attorney-for-injured-workers-v-nevada-self-insurers-assn-nev-2010.