DEFINITIONS

Employer

Employer is defined by NRS 616A.230 as (with a narrow exception provided by NRS 616B.627(4)) the State, county, city, school district and all public and quasi-public corporations therein, regardless of the number of employees. Employer also includes every person, firm, voluntary association and private corporation which has in service any person under a contract for employment, the legal representative of any deceased employer, the Nevada Rural Housing Authority, and an owner or principal contractor who establishes and administers a consolidated insurance program covering employees.

Statutory Employer

Nevada statutes do not define or use the term “statutory employer”. However, Nevada state courts have created a five-part test to determine if an employer is considered a statutory employer. The test focuses on the amount of control exercised by the employer and whether the employee’s work can be considered the “normal” work of the employer. In determining whether an employer-employee relationship exists, the courts will give substantially equal weight to several different factors:
(1) the degree of supervision;
(2) the source of wages;
(3) the existence of a right to hire and fire;
(4) the right to control the hours and location of employment; and
(5) the extent to which the workers' activities further the general business concerns of the alleged employer. State Indus. Ins. System v. EG & G Special Projects, 738 P.2d 1311 (1987).

Employee

Pursuant to NRS 616A.105, employee is defined as every person in the service of an employer under any appointment or contract of hire or apprenticeship, express or implied, oral or written, whether lawfully or unlawfully employed, and include, but not exclusively: aliens and minors, all elected and appointed paid public offices, members of boards of directors of quasi-public or private corporations while rendering actual service for such corporations for pay, musicians providing music for hire, including members of local supporting bands and orchestras commonly known as house bands, and volunteer health practitioners as defined by NRS 415A.180 who are providing health or veterinary services pursuant to NRS 415A.

Employee does not include any employment which is both casual and not in the normal course of the trade, business profession or occupation of the employer. Employee also does not include people engaged as a theatrical or stage performer or in an exhibition, volunteer ski patroller who receives no compensation, amateur or intercollegiate sports officials, members of the clergy, real estate brokers or agents and a solicitor of products via telephone or in person other than at a retail store who works purely for commissions.

Borrowed Employee

Nevada courts apply the "whose business test", which stresses who receives the benefits from the service, as well as whether the service was within the normal scope of either employment. See McDowell Construction Supply Corp v. Williams, 518 P.2d 604 (1974) (partially overturned regarding the application of the “control test”)

See also, NRS 616C.215(2) – When an employee receives an injury for which compensation is payable and which was caused under circumstances creating a legal liability in some person other than the employer to pay damages in respect thereof, the injured employee may take proceedings against that person to recover damages.

Independent Contractor

“Independent contractor” means any person who renders service for a specified recompense for a specified result, under the control of the person’s principal as to the result of the person’s work only and not as to the means by which such result is accomplished. NRS 616A.255.

In Nevada, a principal contractor is not liable for the payment of compensation for any industrial injury to any independent contractor or any employee of an independent contractor if the contract between the principal contractor and the independent contractor is in writing and the contract provides that the independent contractor agrees to maintain coverage for industrial insurance, proof of such coverage is provided to the principal contractor, the principal contractor is not engaged in any construction project, and the independent contractor is not in the same trade, business, profession or occupation as the principal contractor. NRS 616B.639. In the absence of compliance with these conditions, the principal contractor will be liable for industrial injury to an independent contractor.

EXCLUSIVE REMEDY

General Rule

Nevada law provides that an injured employee, generally, cannot sue an employer, for work related injuries if the employer has purchased workers’ compensation insurance as required by Nevada law. “The rights and remedies provided in chapters 616A to 616D, inclusive, of NRS for an employee on account of an injury by accident sustained arising out of and in the course of the employment shall be exclusive, except as otherwise provided in those chapters, of all other rights and remedies of the employee, his or her personal or legal representatives, dependents or next of kin, at common law or

Exception Recognized

If an employee is injured on the job, and an employee/employer relationship exists between the employee and an uninsured employer, the employee may elect to be covered under Nevada’s Uninsured Employers Claims Account. The employee may also elect to not be covered under Nevada’s Uninsured Employers Claims Account and pursue available remedies at law. In any case, the uninsured employer will be held responsible for any costs arising from the injured employee’s claim, premium penalties and fines will be assessed, and the employer will be referred to the Attorney General’s office for investigation and possible action. See NRS 616B.636 and NRS 616C, generally.

JURISDICTION AND LIMITATIONS OF ACTIONS

General Rule

The workers’ compensation statutes are universally applicable to all employers in the state of Nevada with at least one employee.  ”Where an employer has in his or her service any employee under a contract of hire, except as otherwise expressly provided in chapters 616A to 616D, inclusive, of NRS, the terms, conditions and provisions of those chapters are conclusive, compulsory and obligatory upon both employer and employee.” NRS 616B.633

Extraterritorial Jurisdiction

The benefits provided in the Nevada Industrial Insurance Act or similar laws of another state are the exclusive remedy against an out of state employer for any injury, whether resulting in death or not, received by the employee while working for the employer in this Nevada, provided that the employer has furnished industrial insurance pursuant to the Nevada Industrial Insurance Act or similar laws of a state other than Nevada so as to cover the employee’s employment while in the state of Nevada. NRS 616B.600.

Time Limitation

Whenever any accident occurs to any employee, the employee shall forthwith report the accident and the injury resulting therefrom to his or her employer. When an employer learns of an accident, whether or not it is reported, the employer may direct the employee to submit to, or the employee may request, an examination by a physician or chiropractor, in order to ascertain the character and extent of the injury and render medical attention which is required immediately. NRS 616C.010.

Discovery Rule

An employee or, in the event of the employee’s death, one of the dependents of the employee, shall provide written notice of an occupational disease for which compensation is payable under this chapter to the employer of the employee as soon as practicable, but within 7 days after the employee or dependent has knowledge of the disability and its relationship to the employee’s employment. NRS 617.342.

Notice of Injury

An employee or, in the event of the employee’s death, one of the dependents of the employee, shall provide written notice of an injury that arose out of and in the course of employment to the employer of the employee as soon as practicable, but within 7 days after the accident. NRS 616C.015.

The claim of a leased employee is not barred if the leased employee gives notice to his or her client company supervisor, rather than to his or her leasing company supervisor. Notification of an injury by a leased employee to his or her client company supervisor shall be deemed sufficient notice of injury to the employer. NRS 616C.015.

Statute of Limitations

Other than in instances involving death of the injured employee, an injured employee, or a person acting on behalf of the employee, shall file a claim for compensation with the insurer within 90 days after an accident if the employee sought medical treatment for an injury arising out of and in the course of his or her employment, or the employee was off work as a result of an injury arising out of and in the course of his or her employment. In the event of the death of the injured employee resulting from the injury, a dependent of the employee, or a person acting on behalf of the employee, shall file a claim for compensation with the insurer within 1 year after the death of the injured employee. NRS 616C.020.

An employee is barred from recovering compensation pursuant to the statute if the employee fails to file a notice of injury pursuant to NRS 616C.015 or a claim for compensation pursuant to NRS 616C.020. However, an insurer may excuse the failure to file a notice of injury or a claim for compensation if the injury to the employee or another cause beyond the control of the employee prevented the employee from providing the notice or claim, the failure was caused by the employee’s mistake or ignorance of fact or of law, the failure was caused by the physical or mental inability of the employee, or the failure was caused by fraud, misrepresentation or deceit. NRS 616C.025.

Special Rules for Death Claims

In the event of the death of the injured employee resulting from the injury, a dependent of the employee, or a person acting on behalf of the employee, shall file a claim for compensation with the insurer within 1 year after the death of the injured employee. NRS 616C.020.

Pursuant to NRS 616C.505, if an injury by accident arising out of and in the course of employment causes the death of an employee in the employ of an employer, the compensation is known as a death benefit and covers payment for burial expenses (not to exceed $10,000) and the cost of transporting the remains of the deceased employee. Death benefit also provides for the surviving spouse of the deceased employee to receive payment in the amount of 66 2/3 percent of the average monthly wage of the deceased employee until the death of the surviving spouse. If there is a surviving spouse and surviving children, the statute provides for additional direction regarding how the payment proceeds are to be distributed amongst the survivors.

Occupational Disease Death Claims

No compensation may be paid to an injured eunder this chapter for disability which does not incapacitate the employee for at least 5 cumulative days within a 20-day period from earning full wages, but if the incapacity extends for 5 or more days within a 20-day period, the compensation must then be computed from the date of disability. The limitations in this section do not apply to medical benefits, which must be paid from the date of application for payment of medical benefits.

Occupational Disease Claims

An employee is not entitled to receive compensation for an occupational disease claim unless the employee establishes by a preponderance of the evidence that the employee’s occupational disease arose out of and in the course of his or her employment. If the employee files a notice of an occupational disease pursuant to NRS 617.342 after his or her employment has been terminated for any reason, there is a rebuttable presumption that the occupational disease did not arise out of and in the course of his or her employment. NRS 617.358.

No compensation may be paid for disability due to occupational disease claims which do not incapacitate the employee for at least 5 cumulative days within a 20-day period from earning full wages. If the incapacity extends for 5 or more days within a 20-day period, the compensation must be computed from the date of disability. These limitations do not apply to medical benefits, which must be paid from the date of application for payment of medical benefits. NRS 617.420.

Every employee who is disabled or dies because of an occupational disease arising out of and in the course of employment in the State of Nevada is entitled to the compensation for temporary disability, permanent disability or death, as the facts may warrant. NRS 617.430.

In cases of tenosynovitis, pre-patellar bursitis, and infection or inflammation of the skin, an employee is not entitled to compensation unless the employee remains a resident of the state of Nevada for 90 days after contracting the occupational disease, and the employee’s employer provides insurance coverage for occupational diseases. NRS 617.430.

If any employer fails to provide and secure compensation are required by NRS 617, any employee contracting an occupational disease may bring an action at law against the employer for damages as if the provisions of NRS 617 did not apply. NRS 617.215.

Extension of Limitation Period

An insurer may excuse the failure to file a notice of injury or a claim for compensation as required by statute if the injury to the employee or another cause beyond the control of the employee prevented the employee from providing the notice or claim, the failure was caused by the employee’s or dependent’s mistake or ignorance of fact or of law, the failure was caused by the physical or mental inability of the employee or the dependent, or the failure was caused by fraud, misrepresentation or deceit. NRS 616C.025.

COMPENSABILITY

General Rule

Every employer with at least one employee shall provide and secure compensation according to the terms, conditions and provisions of NRS 616A – 617 for any personal injuries by accident sustained by an employee arising out of and in the course of the employment.

“Injury”Defined

“Injury” or “personal injury” means a sudden and tangible happening of a traumatic nature, producing an immediate or prompt result which is established by medical evidence, including injuries to prosthetic devices. Also, except under narrow exceptions regarding certain activities at school districts, any injury sustained by an employee while engaging in an athletic or social event sponsored by his or her employer shall be deemed not to have arisen out of or in the course of employment unless the employee received remuneration for participation in the event. NRS 616A.265.

Nevada law carves out coronary thrombosis, coronary occlusion, or any other ailment or disorder of the heart, and any death or disability ensuing therefrom, as not deemed to be an injury by accident sustained by an employee arising out of and in the course of his or her employment. NRS 616A.265.

The exposure of an employee to a contagious disease while providing medical services, including emergency medical care, in the course and scope of his or her employment shall be deemed to be an injury by accident sustained by the employee arising out of and in the course of his or her employment. NRS 616A.265.

Types of Injuries

Accident Not Required

Nevada allows for recovery by employees injured on the job even if the injury is not the result of a specific traumatic event. One example is stress. NRS 616C.180 provides that an injury or disease sustained by an employee that is caused by stress is compensable if it arose out of and in the course of his or her employment. However, that statute goes on to provide that any ailment or disorder caused by any gradual mental stimulus, and any death or disability ensuing therefrom, shall be deemed not to be an injury or disease arising out of and in the course of employment.

Infectious Diseases

The exposure of an employee to a contagious disease while providing medical services, including emergency medical care, in the course and scope of his or her employment shall be deemed to be an injury by accident sustained by the employee arising out of and in the course of his or her employment. NRS 616A.265.

Heart

Coronary thrombosis, coronary occlusion, or any other ailment or disorder of the heart, and any death or disability ensuing therefrom, shall be deemed not to be an injury by accident sustained by an employee arising out of and in the course of his or her employment. NRS 616A.265

Psychological Injury

No specific statutory provision. See general definition of “injury” which is expansive in nature. See also NRS 616C.180 – Injury or disease caused by stress.

Occupational Diseases

“Disablement” and “total disablement” are used interchangeably under Nevada law and mean the event of becoming physically incapacitated, by reason of an occupational disease arising out of and in the course of employment, from engaging, for remuneration or profit, in any occupation for which he or she is or becomes reasonably fitted by education, training or experience. NRS 617.060

“Disease related to asbestos” means any disease caused by the inhalation of the fibers of asbestos, including but not limited to interstitial pulmonary fibrosis, mesothelioma, and bronchogenic, laryngeal, lymphatic or gastrointestinal carcinoma. NRS 617.065

“Silicosis” shall mean a disease of the lungs caused by breathing silica dust (silicon dioxide) producing fibrous nodules, distributed through the lungs and demonstrated by X-ray examination or by autopsy. NRS 617.140

EXCLUSIONS AND DEFENSES

Course of Employment

An injured employee or the dependents of the injured employee are not entitled to receive compensation for injuries unless the employee or the dependents establish by a preponderance of the evidence that the employee’s injury arose out of and in the course of his or her employment. NRS 616C.150. If the employee files a notice of an injury after his or her employment has been terminated for any reason, there is a rebuttable presumption that the injury did not arise out of and in the course of his or her employment. NRS 616C.150

Engaged in the Furtherance of Employer’s Business

If the injury occurs while an employee is in the course of employment, and if the injury meets all other requirements of NRS 616A -617, it will be compensable regardless of whether it occurred on or off the employer’s premises.

Not in Furtherance of Employer’s Business

If the injury occurs while an employee is not in the course of employment, the claim may be denied as not compensable.

Traveling Employees

Every employer shall provide and secure compensation for any personal injuries by accident sustained by an employee arising out of and in the course of the employment. Travel for which an employee receives wages shall be deemed in the course of employment. NRS 616B.612

If an employee who has been hired or is regularly employed in this State receives a personal injury by an accident arising out of and in the course of employment outside of this State, and as long as, without an extension of coverage by the employer, the injury occurs within 6 months after the employee leaves Nevada, the employee is entitled to compensation according to the law of the state of Nevada, and such compensation is the exclusive remedy of the employee. NRS 616C.190

If an employee who has been hired or is regularly employed in this State receives personal injury by accident arising out of and in the course of employment outside this State, and the employee accepts any compensation or benefits under the provisions of Nevada’s workers’ compensation statute, the acceptance of such compensation shall constitute a waiver by such employee or dependents of all rights and remedies against the employer at common law or given under the laws of any other state, and shall further constitute a full and complete release of such employer from any and all liability arising from such injury or death. NRS 616C.195

If an employee who has been hired or is regularly employed in this State receives a personal injury by an accident arising out of and in the course of employment outside this State, and the employee commences any action or proceeding in any other state to recover any damages or compensation from his or her employer for the injury or death, the act of commencing such an action or proceeding constitutes an irrevocable waiver of all compensation for the injury or death to which persons would otherwise have been entitled under the laws of Nevada. NRS 616C.200

Commuting

If the employee does not receive wages during the act of commuting, it is not considered within the course of employment and any injuries received therein are not compensable under Nevada workers’ compensation statute. However, travel for which an employee receives wages shall be deemed in the course of employment. NRS 616B.612

No Fixed Place of Work Exception: See “Commuting” above.

Transportation Included in Employment Exception: See “Commuting” above.

Special Missions, Assignments, or Circumstances Exception: See “Commuting” above.

Premises and Parking Lot Cases: See “Commuting” above.

Related to Employment

If, during the course of employment, an employee aggravates, precipitates or accelerates a preexisting condition which did not originally arise out of the course of employment the resulting condition of an employee shall be deemed to be an injury by accident that is compensable unless the insurer can prove by a preponderance of the evidence that the subsequent injury is not a substantial contributing cause of the resulting condition. Likewise, if an employee is injured in the course of employment and aggravates, precipitates or accelerates the preexisting condition while not in the course of employment, the injury shall be deemed in the course of employment unless the insurer can prove by preponderance of evidence that the original injury received during the course of employment was not a substantial cause of the resulting subsequent injury. NRS 616C.175

Intentionally Self-Inflicted Injury or Death

Compensation is not payable for an injury to an employee that is caused by the employee’s willful intention to injure himself or herself. NRS 616C.230

Employee’s Violation of the Law, Intoxication, and Illegal Use of Drugs

Compensation is not payable for an injury to an employee proximately caused by the employee’s intoxication or use of a controlled substance. NRS 616C.230

Employee’s Violation of Positive Orders of Employer

No compensation is payable for the death, disability or treatment of an employee if the employee’s death is caused by, or insofar as the employee’s disability is aggravated, caused or continued by, an unreasonable refusal or neglect to submit to or to follow any competent and reasonable surgical treatment or medical aid. Also, if any employee persists in an unsanitary or injurious practice that imperils or retards his or her recovery, or refuses to submit to such medical or surgical treatment as is necessary to promote his or her recovery, the employee’s compensation may be reduced or suspended. NRS 616C.230

Personal Animosity

Compensation is not payable for an injury to the employee caused by the employee’s willful intention to injure another. NRS 616C.230

Hostile Attacks

Compensation is not payable for an injury to the employee caused by the employee’s willful intention to injure another. NRS 616C.230

Retirement

The maximum period for payment of permanent partial disability benefits is for the duration of the disability or when the employee reaches the age of 70, whichever is earlier.

General Rule

In the instance of permanent partial disability, compensation must commence on the date of the injury or the day following the termination of temporary disability compensation, if any, whichever is later, and must continue on a monthly basis for 5 years or until the claimant is 70 years of age, whichever is later.

Proof of Voluntary Retirement

Nevada law does not address this issue.

Fraud or Misrepresentation

If an insurer determines that an employee has knowingly misrepresented or concealed a material fact to obtain any benefit or payment, the insurer may deduct from any benefits or payments due to the employee, the amount obtained by the employee because of the misrepresentation or concealment of a material fact. The employee shall reimburse the insurer for all benefits or payments received because of the willful misrepresentation or concealment of a material fact. NRS 616C.225

BENEFITS

Calculation of Average Weekly Wage

The rules for calculating Average Monthly Wage are contained in NRS 616A.065 (definition of Average Monthly Wage “AMW”), and in the regulations adopted at NAC 616C.420 -NAC 616C.447. Ordinarily, the insurer will calculate AMW by going back 84 days before the date of the accident and by averaging those gross earnings. However, if the claimant thinks that he earned more during a year with the same employer, he can ask the adjuster to look at AMW using his one year earnings history, or his full period of employment. The adjuster is obligated to use the highest AMW resulting from the use of those two methods.

If an injured employee is receiving compensation based on a calculation of the average monthly wage of the injured employee as determined pursuant to the regulations adopted by the Administrator pursuant to NRS 616C.420, the injured employee or the employer may request a hearing before a hearing officer pursuant to the provisions of NRS 616C.315 to 616C.385, inclusive, asking for a recalculation of the average monthly wage of the injured employee. NRS 616C.427

The Nevada Supreme Court recently published an opinion that discusses the regulations that provide that the rate of pay on the date of the accident or the onset of the disease should be used to calculate the average monthly wage where the employee is promoted to a different job just before the accident. In City of North Las Vegas v. Warburton, 127 Nev. Adv. Op. No. 62 (October 5, 2011), a pool lifeguard had just been promoted to pool manager when she was injured at work. She had not received her higher wages based on her new rate of pay as of the date of her injury. The Court held that her benefits should have been calculated using the rate of pay for the primary job she had been promoted to when she was hurt, i.e., the pool manager position.

Total Disability

Nevada law differentiates between temporary total disability and permanent total disability. If an injured employee is discharged from his or her employment as a result of misconduct, an insurer may deny compensation for temporary total disability to the injured employee because of that discharge for misconduct only if the insurer proves by a preponderance of the evidence that the injured employee was discharged from his or her employment solely for the employee’s misconduct and not for any reason relating to the employee’s claim for compensation, and it is the injured employee’s discharge from his or her employment for misconduct, and not the injury, that is the sole cause for the injured employee’s inability to return to work with the pre-injury employer. NRS 616C.232 . An insurer waives its rights if the insurer does not make a determination to deny or suspend compensation to the injured employee within 70 days after the date on which the insurer learns that the injured employee has been discharged for misconduct. NRS 616C.232. Discharge from employment for reasons other than gross misconduct does not limit an injured employee’s entitlement to receive benefits for temporary total disability. NRS 616C.232.The above rules apply only to compensation for temporary total disability.

Additionally, an employee who is receiving compensation for a permanent total disability is not entitled to compensation for permanent partial disability during the period when the employee is receiving compensation for the permanent total disability. Likewise, an employee receiving payment for temporary total disability is not entitled to compensation for a permanent partial disability during the period of temporary total disability, and an employee receiving payment for temporary partial disability is not entitled to compensation for a permanent partial disability during the period of temporary partial disability. NRS 616C.405.

Permanent Total Disability

Nevada statutes provide for the non-exclusive designation of certain specific injuries as being permanent total disability. They are as follows:
(a) The total and permanent loss of sight of both eyes;
(b) The loss by separation of both legs at or above the knee;
(c) The loss by separation of both arms at or above the elbow;
(d) An injury to the spine resulting in permanent and complete paralysis of both legs or both arms, or one leg and one arm;
(e) An injury to the skull resulting in incurable imbecility or insanity; and
(f) The loss by separation of one arm at or above the elbow, and one leg by separation at or above the knee.

Employees that are permanently and totally disabled from gainful employment are entitled to receive 66 2/3 of their average monthly wages for so long as they are unable to obtain employment. Additionally, an individual is considered to have an "odd-lot" permanent total disability if "he or she may be capable of holding various jobs from time to time, but that the kind of work he or she may perform is so limited in quality, dependability or quantity that a reasonably stable market for that work does not exist...." State Indus. Ins. Sys. v. Bokelman, 113 Nev. 1116, 1120, 946 P.2d 179, 182 (1997). To determine "odd-lot" status a judge or insurer may consider factors other than physical impairment to determine whether a nonscheduled injury qualifies the worker for permanent total disability benefits under the odd-lot doctrine. Such factors may include, among others, the worker's age, experience, training and education. In evaluating permanent total disability claims, the focus of the analysis is on the degree to which the physical impairment has hindered a worker's earning capacity. Nevada Indus. Comm'n v. Hildebrand, 100 Nev. 47, 675 P.2d 401 (1984).

An employee is entitled to receive compensation for a permanent total disability only so long as the permanent total disability continues to exist. The insurer has the burden of proving that the permanent total disability no longer exists. NRS 616C.440

Temporary Total Disability

In addition to accident benefits, injured employees are entitled to receive for the period of temporary total disability, 66 ⅔ percent of their average monthly wage up to a maximum yearly amount as defined by the department of industrial relations. In Fiscal Year 2014, the maximum average monthly wage that may be used for calculation of worker's compensation benefits is $5,290.70 or $63,488.40 annually and the maximum compensation an injured worker may receive is $3,527.13.

To qualify for temporary total disability, an injured employee must be unable to work for a period of five or more consecutive days or five cumulative days in a twenty day period due to their injuries and not be incarcerated. To prove disability, a treating physician or chiropractor must provide a certificate:
1.       Identifying the period of disability and a description of any physical limitations or restrictions imposed upon the work of the employee;
2.       Establishing whether the limitations or restrictions are permanent or temporary; and
3.       that is signed by a treating physician or chiropractor authorized pursuant to NRS 616B.527 or appropriately chosen pursuant to subsection 3 or 4 of NRS 616C.090

If the employer can accommodate work restrictions, but the employee's net wage is less than 66 2/3 of his or her pre-accident average monthly wage, the employee is eligible for temporary partial disability benefits.

Partial Disability

Permanent Partial Disability

Once the injured employee has completed medical treatment and is determined by a rating physician or chiropractor that he or she may have incurred a permanent partial disability and is stable and ratable, the insurer must schedule an appointment with an approved rating physician or chiropractor to determine the extent of the employee's disability. The extent of disability is determined by the evaluating physician under the American Medical Association's Guides to the Evaluation of Permanent Impairment, Fifth edition. Nevada mandates the use of the Fifth edition.

A rating evaluation must include an evaluation of the loss of motion, sensation and strength of an injured employee if the injury is of a type that might have caused such a loss. Except in the case of stress claims accepted pursuant to NRS 616C.180, no factors other than the degree of physical impairment of the whole person may be considered in calculating the entitlement to compensation for a permanent partial disability. PPD compensation is calculated based on a factor of 0.6 percent of the claimant's average monthly wage for injuries sustained on or after January 1, 2000.

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 permanent partial disability 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% permanent partial disability 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 permanent partial disability percentage is not based on the injured worker’s ability to return to work under the AMA Guides, under Nevada law, the permanent partial disability percentage governs the length of a retraining program that can be offered to a claimant who needs vocational retraining.

Temporary Partial Disability

Every employee in the employ of an employer who is injured by accident arising out of and in the course of employment, is entitled to receive for a temporary partial disability the difference between the wage earned after the injury and the compensation which the injured person would be entitled to receive if temporarily totally disabled when the wage is less than the compensation, but for a period not to exceed 24 months during the period of disability. NRS 616C.500

Impairment Rating

Nevada law provides that the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fifth Edition, must be applied to all impairment examinations, and must be applied to all examinations for a permanent partial disability that are conducted on or after the effective date of the current statutes, regardless of the date of injury. NRS 616C.110.

Nevada law also states that a chiropractor cannot be designated as a qualified rating medical provider to rate permanent partial disabilities unless the chiropractor has completed an approved advanced program of training in rating disabilities using the American Medical Association’s Guides to the Evaluation of Permanent Impairment. NRS 616C.105.

If an injured employee disagrees with the percentage of disability determined by a physician or chiropractor, the injured employee can obtain a second disability impairment rating from the list of qualified physicians or chiropractors at the employee’s own expense. If the physician or chiropractor selected to make the second determination finds a higher percentage of disability than the first physician or chiropractor, the injured employee can request that the hearing or appeals officer issue an order for the insurer to reimburse that expense. NRS 616C.100

Vocational Rehabilitation

An injured worker may be entitled to vocational rehabilitation benefits if the employee has permanent restrictions on his or her ability to work and the pre-accident employer is unable to accommodate the restrictions on a permanent basis by offering a permanent light duty position. Vocational rehabilitation benefits include job placement assistance and/or development and implementation of a training and education program to get workers the skills they need to return to gainful employment. Additionally, injured employees are entitled to vocational rehabilitation maintenance payments equal to 66.6% of their average monthly wage while they are participating in a vocational rehabilitation plan.

One important factor to consider prior to the development of a vocational rehabilitation plan is the percentage of permanent impairment found by a rating physician. Under Nevada law, the amount of the PPD award impacts the number of months an injured worker may receive vocational training. The limits, according to NRS 616C.255, are as follows:
(a) If the injured employee has incurred a permanent disability as a result of which permanent restrictions on the ability of the injured employee to work have been imposed but no permanent physical impairment rating has been issued, or a permanent disability with a permanent physical impairment of 1 percent or more but less than 6 percent… 9 months.
(b) If the injured employee has incurred a permanent physical impairment of 6 percent or more, but less than 11 percent… 1 year.
(c) If the injured employee has incurred a permanent physical impairment of 11 percent or more… 18 months.

Additionally, if an employee does not return to work for 28 consecutive calendar days as a result of an injury arising out of the course of his or her employment or an occupational disease, the insurer must contact the treating physician or chiropractor to determine whether there are physical limitations on the injured employee’s ability to work and whether the limitations, if any, are permanent or temporary. NRS 616C.545.

Return to Work with Loss of Earnings

Earning Power Assessment

Employer Job Offer

Vocational Expert

Return to Work

Under Nevada law, payments for a temporary total disability must cease as soon as a physician or chiropractor determines that the employee is physically capable of any gainful employment for which the employee is suited, after giving consideration to the employee’s education, training and experience. Payments must also cease when the employer offers the employee light-duty employment or employment that is modified according to the limitations or restrictions imposed by a physician or chiropractor. NRS 616C.475.

Any certification of disability issued by a qualified physician or chiropractor must include the length of time for the disability and a clear description of any physical limitations or restrictions applicable to the employee. NRS 616C.475.

An injured employee who qualifies for benefits for a temporary total disability and who receives medical treatment for that injury after the injured employee returns to work is entitled to compensation for each hour the injured employee is absent from the place of employment of the responsible employer to receive such medical treatment if the injured employee is required to travel more than 50 miles one way from the place of employment to receive such medical treatment. The compensation must be calculated based on increments of 4 hours or 8 hours. Additionally, an employer may not require an injured employee to use sick leave, annual leave, compensatory leave or any other personal leave for the injured employee’s absence from the place of employment to receive medical treatment for the injury after the injured employee returns to work. NRS 616C.477

Amputation or Loss of Use

Nevada law has defined specific injuries as deemed total and permanent in nature. In cases of the following specified injuries, in the absence of proof to the contrary, the disability caused shall be deemed total and permanent:
(a) The total and permanent loss of sight of both eyes.
(b) The loss by separation of both legs at or above the knee.
(c) The loss by separation of both arms at or above the elbow.
(d) An injury to the spine resulting in permanent and complete paralysis of both legs or both arms, or one leg and one arm.
(e) An injury to the skull resulting in incurable imbecility or insanity.
(f) The loss by separation of one arm at or above the elbow, and one leg by separation at or above the knee.

This list is not exclusive, and in all other cases permanent total disability must be determined by the insurer in accordance with the facts presented.

Disfigurement/Scarring

See “Amputation or Loss of Use,” above.

Loss of Sight

See “Amputation or Loss of Use,” above.

Loss of Hearing

No specific NV statutory provision addressing loss of hearing.

Loss of or Permanent Damage to Teeth

Loss of or permanent damage to teeth are compensable in Nevada. NRS 616C.485

Penalties

Pursuant to the provisions of NRS 616D, if an insurer, health care provider, third-party administrator or employer fails to follow the provisions of NRS 616A - 617, an injured employee may be entitled to payment of a substantial benefit penalty of between $3,000 to $50,000. If an insurer, health care provider, third-party administrator and employer does any of the following acts, a benefit penalty may be justified:
•       If an insurer, health care provider or employer induces a claimant to fail to report an accidental injury or occupational disease;

•       If an insurer intentionally fails to comply with a provision of the Nevada Industrial Insurance Act.

Notwithstanding the above, no cause of action may be brought or maintained against an insurer or a third-party administrator who violates any provision of NRS 616A, 616B, 616C or 617. Rather, the administrative fines provided for in NRS 616B.318 and 616D.120 are the exclusive remedies for any violation committed by an insurer or a third-party administrator. NRS 616D.030

Interest

If a contested claim for compensation is decided in favor of the claimant, he or she is entitled to an award of interest at the rate of 9 percent on the amount of compensation due the claimant from the date the payment on the claim would be due until the date that payment is made. NRS 616C.335

Costs

Witnesses who appears before a hearing or appeals officer pursuant to a subpoena are entitled to receive the same witness fee and mileage compensation as witnesses in civil cases. NRS 616D.080. Additionally, employees are entitled to recover costs for expenses incurred and wages lost as a result of attendance at a hearing requested by their employer or insurer. NRS 616C.365.

If a party petitions the district court for judicial review of a final decision of an appeals officer, and the petition is found by the district court to be frivolous or unreasonable, the district court can order costs and attorney’s fee to be paid by the petitioner. NRS 616C.385.

Counsel Fees

There is no rule limiting attorney fees for workers’ compensation matters. It is common for attorneys representing employees to negotiate their fees on a contingency basis as a percentage of the amount recovered on behalf of the employee.

Death Benefits

In Nevada, workers' compensation death benefits are payable to eligible survivors for the death of an employee caused by any “injury by accident arising out of and in the course of employment.” According to NRS 616C.505 and Vredenburg v. Sedgwick CMS, 124 Nev. 553, 557-58, 188 P.3d 1084, 1088 (2008) death benefits include:

- Burial expenses are payable in an amount not to exceed $10,000, plus the cost of transporting the remains of the deceased employee.

- 66 2/3 percent of the average monthly wage is payable until the death of the surviving spouse.

- If there is a surviving spouse and any surviving children of the deceased employee who are not the children of the surviving spouse, the compensation must be paid as follows until the entitlement of all children of the deceased employee to receive compensation pursuant to this subsection ceases:
(a) To the surviving spouse, 50 percent of the death benefit is payable until the death of the surviving spouse; and
(b) To each child of the deceased employee, regardless of whether the child is the child of the surviving spouse, the child’s proportionate share of 50 percent of the death benefit and, if the child has a guardian, the compensation the child is entitled to receive may be paid to the guardian.

- If there are any surviving children of the deceased employee under the age of 18 years, but no surviving spouse, then each such child is entitled to his or her proportionate share of 66 2/3 percent of the average monthly wage for the support of the child.

- The aggregate compensation must not exceed 66 2/3 percent of the average monthly wage.

Widow/Widower

See above

Death Benefits/Children

Death Benefits/Parents and Siblings

See above

Death Benefits/Amounts of Benefits

See above

Medical Benefits

Pursuant to Nevada Revised Statute (NRS) 616C.245, every injured employee is entitled to receive accident benefits. Accident benefits are defined as medical, surgical, hospital or other treatments, nursing, medicine, medical and surgical supplies, crutches and apparatuses, including prosthetic devices. Accident benefits include:
(a) Medical benefits as defined by NRS 617.130 ;
(b) Preventive treatment administered as a precaution to an employee who is exposed to a contagious disease while providing medical services, including emergency medical care, in the course and scope of his or her employment;
(c) Preventive treatment administered as a precaution to a police officer, a salaried or volunteer firefighter or an arson investigator who was exposed to a contagious disease.

While the definition of "accident benefits" is broad, it is not all encompassing. NRS 616A.035. Accident benefits do not include, and injured employees are not entitled to receive, the following:
(a) Exercise equipment, a hot tub or a spa for an employee's home;
(b) Membership in an athletic or health club;
(c) Except as otherwise provided in NRS 616C.245 , a motor vehicle; or
(d) The costs of operating a motor vehicle provided pursuant to NRS 616C.245, fees related to the operation or licensing of the motor vehicle or insurance for the motor vehicle.

An injured employee is entitled to mileage reimbursement (currently 56.5 cents per mile) if he or she is required to travel 20 miles or more, one way, or 40 miles or more in any one week for health care or for attendance at a rehabilitation center, from the injured employee's
(a) residence to the place where he or she receives health care; or
(b) place of employment to the place where he or she receives health care if the care is required during his or her normal working hours.

Likewise, if an injured employee is required to travel more than 50 miles per day to participate in a program of vocational rehabilitation, an insurer must reimburse the injured employee for their mileage. Additionally, mileage reimbursement is required if the injured worker is required to travel 20 miles or more, one way, from his or her residence or place of employment to a place of hearing designated by the insurer or the Department of Administration if the hearing concerns an appeal by the employer or insurer from a decision in favor of the injured employee and the decision is upheld on appeal.

Further, if an injured employee must travel before 7 a.m. or between 11:30 a.m. and 1:30 p.m. or cannot return to his or her residence or place of employment until after 7 p.m., or any combination thereof, reimbursement for meals is required.

Finally, an insurer must reimburse an injured employee for his or her expenses of travel if he or she is required to travel 50 miles or more, one way, from his or her residence or place of employment and is required to remain away from the residence or place of employment overnight. All claims for reimbursement of for mileage and per diem expenses must be submitted to the insurer within 60 days after the expenses are incurred.

Refusal of Medical Treatment

No compensation is payable for the death, disability or treatment of an employee if the employee’s death is caused by, or disability is aggravated, caused or continued by, an unreasonable refusal or neglect to submit to or to follow any competent and reasonable surgical treatment or medical aid. Additionally, if any employee persists in an unsanitary or injurious practice that slows or prevents his or her recovery, or refuses to submit to such medical or surgical treatment as is necessary to promote his or her recovery, the employee’s compensation may be reduced or suspended. NRS 616C.230.

Catastropic Injury

If an insurer accepts a claim for a catastrophic injury, the insurer must as soon as reasonably practicable assign the claim to a qualified adjuster, nurse and vocational rehabilitation counselor. Within 120 days after the date on which the treating physician determines that the condition of the injured employee has stabilized and that the injured employee requires a life care plan, the insurer must develop a life care plan in consultation with the adjuster, nurse and vocational rehabilitation counselor assigned to the claim and pay benefits and provide the proper medical services to the injured employee during the entire period of the development and implementation of the life care plan. NRS 616C.700. However, an insurer that has accepted a claim for a catastrophic injury may thereafter rescind or revise its original determination that the injury is a catastrophic injury if medical evidence supports the rescission or revision, the injured employee is stable and ratable or, other circumstances warrant such a rescission or revision. NRS 616C.710.

Nevada law regulates an adjuster’s ability to be able to adjust or “handle” a catastrophic injury claim. Pursuant to NRS 616C.720., an adjuster who administers a claim for a catastrophic injury must have at least 4 years of experience in adjusting workers’ compensation claims for lost time; or have at least 2 years of experience in adjusting workers’ compensation claims for lost time and work under the direct supervision of an adjuster who has at least 4 years of experience in adjusting such claims. NRS 616C.720.

SUBROGATION OR CREDIT

General Rule

If responsibility for an undisputed claim for compensation by an injured employee is contested, the insurer to which the employee first submits the claim is responsible for providing the required compensation to the employee pending final resolution of the issue regarding which insurer is responsible for the claim. If the insurer that initially provides compensation to the injured employee is not held responsible for payment of the claim, the insurer that is held responsible shall reimburse that insurer within 30 days after final resolution of the issue of responsibility for payment of the claim. NRS 616C.165

Attorney’s Fee

Subrogation liens extend to cover to attorney’s fees and non-economic damages. See Breen v. Caesars Palace, 102 Nev. 79, 715 P.2d 1070 (1986), interpreting NRS 616C.165.

Motor Vehicle Accidents

See NRS 616C.215 discussed above at General Rule

Health Benefits

See NRS 616C.215 discussed above at General Rule

Credits

See NRS 616C.215 discussed above at General Rule

ATTORNEYS

With a few exceptions, Nevada attorneys are not able to obtain certification as a specialist in a specific the area of law. Workers’ compensation is not considered an area of certifiable legal specialty in Nevada.

Nevada has a “Nevada Attorney for Injured Workers” appointed by an appeals officer or the Administrator, who represents without charge a claimant before the appeals officer, Administrator, district court or Supreme Court. In addition, the Nevada Attorney for Injured Workers gives advice regarding a claimant’s rights before a hearing officer and the procedure for enforcing those rights. However, if the Nevada Attorney for Injured Workers determines that a claim is frivolous or lacks merit, he or she may refuse to represent a claimant. NRS 616A.455.

Additionally, any claimant can engage private counsel at any time, but the employment of private counsel relieves the Nevada Attorney for Injured Workers from further representation of the claimant. Any claimant who uses the services of the Nevada Attorney for Injured Workers and who also retains private counsel has to reimburse the state for the reasonable cost of the services of the Nevada Attorney for Injured Workers. NRS 616A.460

Certifying Organization

Not Applicable

Required Documentation

Not Applicable

Additional Information

Not Applicable

CLAIMS PROFESSIONALS

There are no specific certification requirements to enable a claims professional to handle most workers compensation claims in Nevada. The actions of insurance claims professionals are governed by the Nevada Insurance Code (NRS 679A to 697). However, if an injury to an employee is deemed a “catastrophic injury” pursuant to NRS 616C.700, there are specific requirements for an adjuster to be considered qualified to handle the catastrophic injury claim. NRS 616C.720. An adjuster who administers a claim for a catastrophic injury must have at least 4 years of experience in adjusting workers’ compensation claims for lost time; or have at least 2 years of experience in adjusting workers’ compensation claims for lost time and work under the direct supervision of an adjuster who has at least 4 years of experience in adjusting such claims. NRS 616C.720.

LITIGATION AND APPEAL

Workers’ Compensation Hearing Proceedings

Nevada has “hearings officers” who oversee workers compensation claim proceedings. The Director of the Department of Administration appoints hearing officers to conduct hearings in contested cases for compensation under chapters 616A to 617 inclusive, of the NRS. The hearing officers serve at the pleasure of the Director of the Department of Administration. Hearing officers receive an annual salary from the State. If a hearing officer determines that he or she has a personal interest or a conflict of interest, directly or indirectly, in any case which is before him or her, the hearing officer must disqualify himself or herself from hearing the case and the case must be assigned to another hearing officer. NRS 616C.300

Department of Administration – Hearings Division

The Chief of the Hearings Division is responsible for the establishment of the code of conduct for hearing officers and appeals officers. The codes of conduct established by the Chief of the Hearings Division are designed to ensure fairness and impartiality, and to avoid the appearance of impropriety. The regulations adopted by the Chief of the Hearings Division set standards for the initial training and continuing education of hearing officers, and appeals officers. NRS 616C.295

Appointment of Workers’ Compensation Hearings Officers

See “Department of Administration – Hearings Division” above.

Qualifications of WCJ

See “Department of Administration – Hearings Division” above.

Procedure

NRS 616C.315 establishes the procedure relevant to workers compensation hearings. That law provides the following procedural requirements:
1. Any injured employee subject to the jurisdiction of the hearing officers may request a hearing before a hearing officer of any matter within the hearing officer’s authority. The workers compensation insurer must provide, without cost, the forms necessary to request a hearing to any person who requests them. A hearing cannot be scheduled until the hearing officer is provided the names of the claimant, employer, and the insurer or third-party administrator, the number of the claim, and a copy of the letter of determination being appealed.

2. A person who is aggrieved by a written determination of an insurer or the failure of an insurer to respond within 30 days to a written request mailed to the insurer by the person who is aggrieved, has the right to appeal the determination or failure to respond by filing a request for a hearing before a hearing officer. The request must be filed within 70 days after the date on which the notice of the insurer’s determination was mailed by the insurer or the unanswered written request was mailed to the insurer. The failure of an insurer to respond to a written request for a determination within 30 days after receipt of such a request will be deemed by the hearing officer to be a denial of the request.

3.The period within which a request for a hearing has to be filed may be extended for an additional 90 days if the person aggrieved shows by a preponderance of the evidence that the person was diagnosed with a terminal illness or was informed of the death or diagnosis of a terminal illness of his or her spouse, parent or child.

4. The failure to file a request for a hearing within the period specified can be excused if the person aggrieved shows by a preponderance of the evidence that the person did not receive the notice of the determination and the forms necessary to request a hearing.

5. The requested hearing before the hearing officer must be conducted as expeditiously and informally as is practicable. The parties to a contested claim may, if the claimant is represented by legal counsel, agree to forego a hearing before a hearing officer and submit the contested claim directly to an appeals officer.

6. Pursuant to NRS 616C.330, the hearing officer has 5 days from the date of receipt of the hearing request to set a hearing date and time. The hearing must be within 30 days after his or her receipt of the hearing request and must take place in Carson City, Nevada, or Las Vegas, Nevada, unless one or more of the parties agree to pay the additional costs to conduct the hearing in a different location. The hearing officer must provide notice of the hearing by mail or by personal service to all interested parties to the hearing at least 15 days before the hearing. NRS 616C.330

Investigatory Powers

Appeals officers, the Administrator, and the Administrator’s designee, have the following powers: issue subpoenas, administer oaths, certify to official acts, call and examine under oath any witness or party to a claim, maintain order, order an independent medical exam, rule upon all questions arising during the course of a hearing or proceeding, permit discovery by deposition or interrogatories, initiate and hold conferences for the settlement or simplification of issues, dispose of procedural requests or similar matters, and generally regulate and guide the course of a pending hearing or proceeding. NRS 616D.050

Reasoned Decision

The hearing officer must provide a written decision within 15 days after the hearing. The decision must be provided in the most efficient format possible. Notice of the decision must be provided to each party by mail. The decision of the hearing officer is not stayed if an appeal from that decision is taken unless an application for a stay is submitted by a party. If an application for stay is submitted, the decision is automatically stayed until a determination is made on the application. A determination on the application must be made within 30 days after the filing of the application. If, after reviewing the application, a stay is not granted by the hearing officer or an appeals officer, the decision must be complied with within 10 days after the refusal to grant a stay. NRS 616C.330.

Workers’ Compensation Appeal Board

Appeals officers are appointed by the Governor of the State of Nevada. Each appeals officer holds office for 2 years after the date of appointment and until the successor of the appeals officer is appointed and has qualified. To qualify as an appeals officer, one must be an attorney who has been licensed to practice law before all the courts of Nevada for at least 2 years. During the period of appointment, an appeals officer cannot also engage in the private practice of law. The decision of an appeals officer is the final and binding administrative decision on a claim for compensation by an injured employee. NRS 616C.340

General Rule

Any party wishing to appeal a decision of a hearing officer may appeal from the decision by filing a notice of appeal with an appeals officer within 30 days after the date of the decision. A claimant aggrieved by a written determination of the denial of a claim, by an insurer, or the failure of an insurer to respond in writing within 30 days to a written request of the claimant mailed to the insurer may file a notice of a contested claim with an appeals officer. The notice of contested claim must be filed within 70 days after the date on which the notice of the insurer’s determination was mailed by the insurer or the unanswered written request was mailed to the insurer. Within 10 days after receiving a notice of appeal or a notice of a contested claim, the appeals officer must schedule a hearing on the merits of the appeal or contested claim for a date and time within 90 days after receipt of the notice. NRS 616C.345

Scope of Review of Appeals Officer

The appeals officer must hear any matter raised before him or her on its merits, including new evidence bearing on the matter. If there is a medical question or dispute concerning an injured employee’s condition or concerning the necessity of treatment for which authorization for payment has been denied, the appeals officer may order an independent medical examination and refer the employee to a physician or chiropractor of his or her choice who has demonstrated special competence to treat the particular medical condition of the employee, whether or not the physician or chiropractor is on the insurer’s panel of providers of health care. If the medical question concerns the rating of a permanent disability, the appeals officer may refer the employee to a rating physician or chiropractor. The insurer must pay the costs of any examination requested by the appeals officer. Additionally, the appeals officer may consider the opinion of an examining physician or chiropractor, in addition to the opinion of an authorized treating physician or chiropractor, in determining the compensation payable to the injured employee. NRS 616C.360

Original Jurisdiction

The appeals officer may affirm, modify or reverse any decision made by a hearing officer and issue any necessary and proper order to give effect to his or her decision. NRS 616C.360

Nevada Supreme Court Review

Nevada does not have an intermediate Court of Appeals. The Nevada Supreme Court is both the court to which appeals are made and the final arbiter of all state legal controversies.

According to NRS 616C.370, judicial proceedings cannot be instituted by an injured employee for compensation for an injury or death unless a claim for compensation is filed and a final decision of an appeals officer has been rendered on the claim. Any judicial review is limited to review of the decision of an appeals officer.

If a party petitions the district court for judicial review of a final decision of an appeals officer, the Administrator or the Administrator’s designee, and the petition is found by the district court to be frivolous or brought without reasonable grounds, the district court may order costs and a reasonable attorney’s fee to be paid by the petitioner. NRS 616C.385

Jurisdiction

A petition for judicial review of a workers’ compensation matter is filed with the district court in Nevada. The district court will issue an order accepting or denying the request for judicial review. If denied, the district court’s denial can be appealed to the Nevada Supreme Court. NRS 616C.385

Appeal to Supreme Court

There is no intermediate Court of Appeals in Nevada. Therefore a decision of the District Court in regards to an accepted petition for judicial review, or an order denying judicial review may be appealed directly to the Nevada Supreme Court.

SETTLEMENT

There is no statutory provision for mandatory mediation in workers’ compensation matters in Nevada. The parties can voluntarily submit a contested matter to mediation subject to any terms agreed upon by the parties.

INSURANCE

General Rule

Where an employer employs any employee, the terms, conditions and provisions of Nevada’s Workers Compensation Act are conclusive, compulsory and obligatory upon both employer and employee. NRS 616B.633

Particular Requirements

Every employer must provide and secure compensation for any personal injuries by accident which are sustained by an employee arising out of and in the course of the employment. NRS 616B.612

General Rule Where Employer is Uninsured

If an employer is uninsured, the injured employee can directly pursue a claim at law pursuant to NRS 616B.636 or seek relief pursuant to the Uninsured Employers’ Claim Account under NRS 616C.220.

Damages by Action at Law Where Employer is Uninsured

If any employer fails to provide and secure compensation, any injured employee or the dependents of the employee may bring an action at law against the employer for damages as if those chapters did not apply. NRS 616B.636

Uninsured Employers Claim Account

Except as otherwise provided in this subsection, an employee may receive compensation from the Uninsured Employer's Claims Account if the employee was hired in this State or is regularly employed in this State, the employee suffers an accident or injury which arises out of and in the course of his or her employment, the employee files a claim for compensation with the Division; and the employee makes an irrevocable assignment to the Division of a right to be subrogated to the rights of the injured employee pursuant to NRS 616C.215. See NRS 616C.220.