In 2009, Nevada law, NRS 616C.490(5), was amended to allow authorized rating doctors to rate any permanent psychological impairment of claimants that have stress claims accepted under the narrow confines of NRS 616C.180. Previously, Nevada law allowed only impairment awards for physical impairment. In order to implement this change, the Division of Industrial Relations of the Department of Business and Industry for Nevada revised and adopted regulations, effective June 30, 2010, providing details on how to rate psychological stress claims.
It is important to remember that only those claims that are accepted as stress claims under NRS 616C.180 are affected by these regulations governing how to rate psychological impairment. NRS 616C.180 provides that any disorder caused by any gradual mental stress shall be deemed not to arise out of and in the course of employment. In order for an injury or disease caused by stress to be deemed arising out of and in the course of employment, an employee must prove by clear and convincing medical or psychiatric evidence that he has a mental injury cause by extreme stress in time of danger, the primary cause of the injury was an event that arose out of employment, and the stress was not caused by his layoff, a termination, or disciplinary action.
In 2007, the Nevada Supreme Court had an opportunity to consider the requirements of stress claims filed under NRS 616C.180. In McGrath v. State Dep’t of Public Safety, 159 P.3d 239, 123 Nev. Adv. Op.15 (2007), the court held that built up stress over the course of multiple incidents while at work as a highway patrolwoman was not sufficient to show that mental injuries were caused by extreme stress in time of danger. The patrol woman was unable to identify a discrete traumatic occurrence that caused her mental problems, and the claim was denied.
The newly revised regulations that govern rating evaluations require that the rating physician use an approved worksheet when rating psychological impairment under “Mental and Behavioral Disorders” chapter of the AMA Guides to Evaluation of Impairment. There is no reason why the adoption of these regulations and the approval of this worksheet to rate psychological impairment should open any floodgates for stress claims. The same stringent requirements for establishing a stress claim under NRS 616C.180 exists.
I spoke with a DIR employee on July 15, 2010 and learned that there was one pending request for a rating on an accepted stress claim, and that DIR had not decided yet what specialty rating physician would be assigned to do the rating. The revised regulations require that a psychiatrist rate work-related mental impairment, and the work sheet itself requires a consideration of the severity of the work-related psychiatric diagnosis. The panel of rating physicians and chiropractors last updated by DIR on July 11, 2010 did not include any psychiatrists. The DIR employee I spoke with stated that DIR was working on adding psychiatrists to the panel, and in the interim, DIR would decide whether to use one of the neurologists on the panel or some other specialty physician currently on the panel. She agreed that given that very few claims can satisfy NRS 616.180, the addition of these regulations and worksheet to rate mental impairment was not a reason to get excited.
By Virginia L. Hunt, Esq.www.huntlawoffice.comhttp://www.nevadaworkerscompensationlaw.com/