Injured workers lose round in court

Brian Seals

Thursday, June 25, 1998 | 11:32 a.m.

A judge has blocked a new Nevada regulation that would give workers with injured backs disability payments based not on measurable evidence, but on observations by a physician.

The Division of Industrial Relations wrote a rule last year providing for partial disability status based on observational tests for workers who had suffered on-the-job spinal injures. Prior to that, disability status had to be determined through a tangible physical condition.

The 1997 regulation was overturned in late May by Judge Kathy Hardcastle after a court challenge by the casino-oriented Nevada Self Insurers Association. She ruled that the Nevada law requires objective evidence of disability.

Last week, the judge denied a state motion to keep the rule in force prior to Supreme Court review.

The observations called for under the proposed rules come at the end of the workers' compensation process, after a worker has undergone treatment.

Ron Swirczek, Industrial Relations Division administrator, said the dispute is over how to judge a worker's condition after receiving treatment for an injury compared to his or her condition before the accident.

Swirczek used an analogy of an attorney who has three fingers cut off on the job. The person could still function at work, but at the same time would be impaired due to the loss of the fingers.

He said a worker can be hindered by pain even though there is no attributable physical problem causing it.

"Medicine, as much as we'd all like to think, is not an exact science," Swirczek said. "What about the case where what you see and feel appears to be normal, but you know you are not normal?"

But the Self Insurers Association contended otherwise.

"Pain, in and of itself, isn't a physical impairment," said Malani Kotchka, an attorney representing the association. "It can't be observed, it can't be measured, whereas everything else to determine permanent partial disability is measurable."

The Self Insurers Association is comprised of about 60 members representing an array of industries and governmental bodies, such as Clark County and Metro Police. Of its 14 officers and board members, nine represent hotel-casinos.

Association President Sandra Simon said the group had not calculated what the regulation would cost companies if left in place, but noted it would affect all businesses with worker compensation policies, not just the self-insured. Both are bound by state workers' compensation rules.

"It wouldn't just cost us, it would cost everybody across the board," Simon said.

The rules say that if pain is observable and partially interferes with everyday activities, but would not preclude the employee from returning to work altogether, they would be considered 1 to 2 percent impaired.

If the pain gradually hinders an employee's ability to carry out daily activities or precludes a worker from returning to work, they would be categorized as 3 to 4 percent impaired.

The payment people receive for partial permanent disability status is determined by a formula based on age, income at the time a worker becomes disabled and the percentage under which the worker is categorized, said Ken Webb, southern district manager of the Industrial Insurance Regulations division.

The higher the percentage, the higher the payment. Doctors would also be able to give such percentage ratings for injuries to other parts of the body based on observation, said Webb.

While Hardcastle ruled that Nevada law requires objective evidence of disability, state law also directs the Division of Industrial Relations to base the regulations on American Medical Association guidelines. Those guides were revised in 1993 and allowed for observation for measuring back pain, which prompted the attempted change in Nevada's regulations.

The guide states "pain may be viewed as an impairment that should be assessed according to the individual's residual functioning capacity."

However, Kotchka noted in court filings that the guides also "state that chronic pain and pain-related behavior are not, per se, impairments."

The Division of Industrial Relations does not track injuries categorized by type. It receives about 800 partial permanent disability filings per month for all types of injuries.

Wiles said it's the division's position that workers injured while the regulations are void would not be eligible should the district court's decision be reversed.