CHANGE IN THE APPORTIONMENT Of PPD Awards
Existing law requires, in a case where an injured employee is determined to have a permanent partial disability (PPD) and there is a previous disability, an apportionment to be made by subtracting the percentage of previous disability as it existed at the time of the previous disability from the percentage of present disability as it existed at the time of the present disability. (NRS 616C.490.) In recent years, insurers have requested (or demanded) that rating physicians apportion impairment ratings based on degenerative findings in X-rays and MRIs, or based on treating providers’ records that indicate the injured worker suffered from a preexisting degenerative condition. The Nevada Legislature just passed SB289, which amends the current law and prohibits apportionment, unless the insurer can prove by a preponderance of evidence certain specific criteria.
Most importantly, rating physicians are now prohibited from apportionment of impairment awards based on imaging studies taken after the date of injury that merely show degenerative changes. Apportionment now requires the existence of medical records before the date of injury. If the insurer has not provided records predating the injury, then apportionment for a degenerative condition is now prohibited by statute (unless there is a prior PPD or physical evidence of a prior surgery). Preexisting medical records or documents are defined by statute. These preexisting records or documents must contain one or more of the following: (a) diagnoses, (b) measurements, (c) imaging studies, (d) laboratory testing, or (e) other commonly relied upon medical evidence that supports the finding of a preexisting, ratable impairment (under the specific provisions of the edition of the American Medical Association’s Guides to the Evaluation of Permanent Impairment that had been adopted by the Division pursuant to NRS 616C.110) at the time of that rating evaluation. SCENARIO NO. 2 Generally, if no prior medical records exist showing that an impairment existed before the date of the injury, apportionment is not allowed. However, if the insurer has provided a copy of a prior PPD to the same body part which was injured in the subject claim, then apportionment is permitted, as was the case prior to the passing of SB289. SCENARIO NO. 3 The final exception occurs when the rating physician is able to ascertain or observe physical evidence of a prior surgery. For example, if the injured worker has surgical scars and hardware in his back from a former fusion, then the rating physician may apportion based on physical evidence of the prior surgery. If there is no physical evidence of a prior surgery or no documentation establishing that there was a prior surgery performed, then apportionment is not permitted without a prior PPD exam. SB289 is effective May 31, 2021 . This means that insurers must abide by these rules as of today’s date and cannot require rating physicians to apportion under the old rules for any reports written after May 31, 2021.
Under Sections 1 and 7 of SB289, apportionment is only permitted in three scenarios:
(1) The insurer has provided the rating physician with medical documentation or records that existed before the date of injury and the documentation or records contain actual evidence of impairment or disability.
(2) The insurer has provided the rating physicians with a prior PPD report for the same body part which was injured in the present claim.
(3) Physical evidence of a prior surgery to the same body part which was injured in the present claim. SCENARIO NO. 1 Prior to apportionment, this scenario requires the rating physician to confirm that actual medical records existed before the date of injury and that these records establish the existence of an impairment or disability. Also, this scenario requires the rating physician to opine (to a reasonable degree of medical probability) that the injured worker had a specific percentage of impairment immediately prior to the date of injury.
2 725-867-8495 | WWW.CLAGGETTLAW.COM | WORKERS’ COMPENSATION AND PERSONAL INJURY
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