Some worker’s compensation insurers routinely deny pre-existing conditions as non-industrial. It is very predictable. For many injured workers in Nevada, this causes confusion. I see the same factual scenario over and over again. The injured worker was doing just fine before they suffered their industrial injury. They were able to lift objects, bend, crawl, and perform their daily employment activities with no problems for years. Then they suffer an industrial injury and file a Nevada worker’s compensation claim. The treating physician writes in his/her report that in addition to the industrial diagnosis, the injured worker also has a non-industrial diagnosis. The injured worker then receives a letter of determination from the worker’s compensation insurer stating that they are denying any and all treatment for the pre-existing condition. Benefits are also cut off, such as temporary total disabilities payments for being off of work! But what about logic? The injured worker was doing great prior to the industrial injury, and now the pre-existing condition is active, causing them pain. How can it be considered non-industrial?
Contrary to how many insurers handle this issue, in Nevada worker’s compensation claims, pre-existing non-industrial conditions can be accepted as part of the claim. Nevada law (NRS 616C.175) provides that:
1. If an injured worker in Nevada has a preexisting condition from a cause or origin that did not arise out of or in the course of the employee's current or past employment, and
2. The industrial injury aggravates, precipitates or accelerates the preexisting condition,
then the resulting condition shall be deemed to be an injury by accident that is compensable pursuant to the provisions of chapters NRS 616A to 616D.
The only way out of accepting the resulting condition is for the insurer to try and prove that the industrial injury is not a substantial contributing cause of the resulting condition.
The bottom line is just because the treating physician tells the injured worker that their condition is pre-existing and non-industrial, it does not necessarily mean that the condition should be denied as part of the Nevada workers compensation claim. And if the insurer denies the condition, they may be wrong, as I have seen many, many times.
The Remedy:
The injured worker can appeal the insurer’s determination and litigate this issue before the Hearings Officer and Appeals Officer of the Department of Administration. Therefore, this is just one more reason that all injured workers should seek and find an attorney who is a certified expert and specialist by the State Bar of Nevada in Nevada worker’s compensation.
I hope that this has been helpful and informative. Please read my other blogs for more free, valuable information.
Joel A. Santos, Esq., is a Nevada worker’s compensation attorney. He is certified by the State Bar of Nevada as a Worker’s Compensation Expert and Specialist.
Copyright 2020 - Joel A. Santos, Esq.