Monthly Archives: February 2018

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Restaurant Responsibilities for Food Allergies

People who suffer from food allergies face constant challenges when they go out to eat. Being exposed to an allergen can have serious or even fatal health consequences. For restaurants, one challenge of food allergies is their sheer variety. When someone is exposed to an allergen in restaurant food and suffers serious injury as a result, the question may become whether the restaurant bears legal responsibility.

Liability requires negligence

Responsibility for personal injury is usually a question of negligence. A negligence claim against a restaurant must show that the restaurant owed the patron a duty of reasonable care, breached that duty, and as a result of the breach the patron was injured. In any negligence case, the duty of reasonable care needs to be based in law, created either by statute or by the courts. Nevada has a lengthy set of rules restaurants must follow for general sanitation and food preparation, chiefly to avoid the spread of food-borne illnesses. Nevada law also requires restaurants to train their employees in food safety, including general training in food allergies. NAC 446.053. Restaurants also must label prepackaged or repackaged food with lists of ingredients, including any source of major food allergies. For labeling purposes, “major food allergens” include milk, eggs, fish, shellfish, nuts, wheat, and soybeans. NAC 446.187. But in general, Nevada does not require restaurants to actively protect their customers from allergens. That makes sense. A restaurant can’t predict the allergies of every person who walked through the door. Instead, people who have food allergies must take steps to protect themselves, by asking questions and knowing the things they must avoid.

Where negligence might apply

A restaurant might bear liability for a customer’s allergy-related injuries if certain facts are present. Here are a few examples:
  • Failure to comply with training or labeling laws. If a restaurant doesn’t properly train its staff in the basics of food allergies, it may be committing negligence per se (that is, its negligence might be presumed from the fact that it was not complying with a regulatory requirement). But the failure to comply with regulations would need to be causally connected to the patron’s injury.
  • Providing bad information. A restaurant could be liable if it doesn’t provide accurate information once asked. For example, if a patron asks if a dish contains peanuts and the staff incorrectly responds that it does not, the restaurant may be liable if the patron suffers serious injury. Ultimately, this is why Nevada requires its restaurants to train its personnel: to avoid harmful mistakes.
  • Failure to respond to an emergency. When a restaurant patron suffers a medical emergency, the restaurant becomes responsible for taking reasonable steps to help. That might include promptly calling 911 and taking other steps that an ordinary person might take. This doesn’t mean that the restaurant needs to take every possible step. For example, a restaurant that doesn’t keep an EpiPen auto-injector on hand to respond to serious allergic reactions isn’t necessarily behaving unreasonably.

We are happy to answer your questions

For over 45 years the law firm of Greenman Goldberg Raby Martinez has helped clients in the Las Vegas area seek compensation for their injuries. If you have questions about your legal options following a serious allergic reaction to food and would like to speak to a lawyer, call us today for a free consultation at 702-388-4476, or reach us through our contact page.

An Employer’s Responsibilities After Receiving a Sexual Harassment Complaint

Over the last year sexual harassment in the workplace has become a major topic of discussion. Employees who face harassment can feel powerless, but the law offers recourse for victims to recover compensation. Employers need to be mindful of how they respond to initial complaints of sexual harassment.

Sexual harassment is a form of unlawful discrimination

Among other things, Nevada’s Fair Employment Practices Act, NRS 613.310 et seq., and Title VII of the federal Civil Rights Act of 1964, 42 U.S.C. 2000e et seq., prohibit employers with 15 or more employees from discriminating against employees on the basis of sex. Sexual harassment can be a form of employment discrimination if it is frequent or severe enough to create a hostile work environment, or if the employer takes adverse employment actions against the victim. Nevada law provides a burden-shifting mechanism where the victim of sexual harassment is fired or suffers some other adverse action as a consequence, such as changed work hours or denied promotion. In such cases, the victim needs to show some basic facts: (1) he or she is a member of a protected class, (2) he or she is qualified for the job, (3) he or she is satisfying the job requirements, (4) he or she suffered an adverse employment action, and (5) the employer assigned others to do the same work. Apeceche v. White Pine County, 96 Nev. 723 (1980). If the victim can show these things, the burden shifts to the employer to prove that the adverse action was taken for a legitimate, nondiscriminatory reason. For many victims of sexual harassment, this burden shifting will be a mixed blessing. The employer in such cases typically goes to great lengths to show that the actions taken against the employee were justified. In other words, the law asks the employer to blame the victim. A victim needs a good attorney to ensure that the focus remains on the employer’s bad behavior.

How anti-harassment policies can protect employers

In cases where no adverse employment actions have been taken, an employer can escape liability for sexual harassment of an employee by a supervisor if the employer can show two things. First, the employer needs to have exercised reasonable care to prevent and promptly address harassing behavior, for example by providing clear complaint resolution processes. Second, the victim must have unreasonably failed to take advantage of the mechanisms made available by the employer to resolve the issue. Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998), Faragher v. City of Boca Raton, 524 U.S. 775 (1998). For victims of sexual harassment, the important lesson of these rules is that choosing to not bring a complaint forward may foreclose recovery through civil litigation. Whether the choice to not raise a complaint is “unreasonable” will depend on the circumstances, but employees can be certain that attorneys for employers will work hard to find any fact that suggests the employee did not take advantage of the employer’s complaint procedures. For employers, these rules create a clear requirement that they have adequate policies in place to deal with harassment complaints. They must also take real steps to address problems. An employer that simply tells victims of harassment to “deal with it” isn’t doing its part to prevent unlawful discrimination.

GGRM serves workers in Las Vegas

Enduring sexual harassment at work can be extremely stressful, especially when it leads to lost opportunities or even a lost job. When an employer doesn’t address complaints in a way that is fair and resolves the problem, a lawsuit might be necessary. The law firm of Greenman Goldberg Raby Martinez works with clients in the Las Vegas area to get the recovery they deserve. To speak to an attorney, reach out to us today at 702-388-4476, or contact us through our website.

What Can Employers Ask About Prior Workers’ Comp Claims?

A question that often comes up for workers who have filed workers’ compensation claims in the past is how those claims could affect their future job prospects. The concern is that employers want to avoid the expense of hiring a worker with injury risks or, worse, a history of filing fraudulent claims. They could potentially use a job applicant’s history of workers’ compensation claims to turn the applicant away. Fortunately, federal and state law provide specific limits on how Nevada employers can use a worker’s claims history.

Federal law prohibits disability discrimination

The federal Americans with Disabilities Act (ADA), 42 U.S.C. 12101 et seq., prohibits employment discrimination on the basis of an applicant’s or employee’s disability. According to guidance from the Equal Employment Opportunities Commission, under the ADA an employer can ask about a job applicant’s disability and prior workers’ compensation claims only after making an initial job offer. An employer also cannot lawfully obtain such information from third parties until after making the initial job offer. A job offer can lawfully be conditioned upon passing a medical examination. Employers are still permitted to require applicants to pass nonmedical agility or strength tests if they are necessary for the job, such as jobs in law enforcement. In each case, such screening must be given to every applicant in the same job category. Not every work-related injury leads to a disability that is protected by the ADA. The ADA defines “disability” as a physical or mental impairment that substantially limits a major life activity, having a record of such an impairment, or being regarded as having such an impairment (for example, if an employer decides that an injury limits an employee’s ability to work, even if it doesn’t limit the employee’s day-to-day activities). Many workers’ compensation claims will arise from injuries that are not serious enough to meet this standard. On the one hand, this means that non-disability conditions might still come up in the course of a job application process. On the other hand, employers who probe an applicant’s medical history risk uncovering a protected disability before they are legally entitled to know about it.

When prior claims are uncovered, what then?

Once an employer learns about a new hire’s prior workers’ compensation claims, the ADA’s protections continue to apply. However, in some cases an employee’s claims history can be used to justify terminating an employment relationship for a reason other than disability. For example, the history may reveal that the employee has been dishonest during a medical examination. It may also reveal that the employee has filed numerous claims that were rejected, leading an employer to infer that the employee has a tendency to make false claims. In some cases, a history may uncover a condition that prevents the employee from safely doing the job. Generally speaking, a scrupulous employer will be careful about basing hiring decisions on someone’s workers’ comp claims history. A claim of unlawful discrimination is a potentially expensive and time-consuming problem that is best avoided through well-designed screening practices. For employees, the important thing to remember is that the law limits how employers use workers’ medical information. But medical information can have nonmedical implications.

GGRM assists workers in the Las Vegas area

The law firm of Greenman Goldberg Raby Martinez has handled workers’ compensation cases in Las Vegas for more than 45 years. If you have questions about how your claims history might affect your future employment options, we are here to help. For a free attorney consultation, reach out to us today at 702-388-4476, or ask us to call you through our contacts page.

Employer Responsibilities for Air Quality

Air pollution at work can cause serious health problems, and can aggravate conditions like asthma. For employers, maintaining good air quality in the workplace helps to keep employees healthy and safe, and improves productivity.

OSHA and indoor air quality

The general duty clause of the federal Occupational Safety and Health Act of 1970 (OSHA Act) requires employers to keep their workplaces free from recognized hazards that are causing or are likely to cause death or serious physical harm” to their employees. 29 U.S.C. 654. Although the regulations under the OSHA Act and Nevada’s own OSHA law, NRS 618 et seq., do not address indoor air quality in general, specific standards have been adopted, including: In addition to the specific standards, the Occupational Safety and Health Administration provides nonbinding guidance for employers who operate commercial and institutional buildings. For employees working in places that do not fall within one of the specific standards, the OSHA Act’s general duty clause offers an umbrella protection against inadequate ventilation or other unhealthy air quality problems. For example, a restaurant that fails to maintain adequate vent hoods and exposes its workers to constant oven smoke might be violating OSHA standards, among other things. The Safety Consultation and Training Section (SCATS) of the Nevada Division of Industrial Relations offers air quality evaluations by qualified industrial hygienists in the Las Vegas area.

Smoking and the Nevada Clean Indoor Air Act

The Nevada Clean Indoor Air Act, NRS 202.2483, regulates where smoking of tobacco is permitted in places of employment. The law prohibits smoking in most publicly accessible businesses, including indoor areas at restaurants, shops, schools, and government buildings. It also requires employers to post “No Smoking” signs and take steps to stop prohibited smoking. The Clean Indoor Air Act permits smoking in casinos, outdoor areas of restaurants, and other venues, so while it limits employee exposure to tobacco smoke to a large degree, it leaves many Las Vegas employees exposed to second-hand smoke.

Smoking marijuana in public is still illegal

Public consumption of marijuana, the recreational use of which has been legal in Nevada since January 2017, continues to be illegal. Unlike the Clean Indoor Air Act’s exceptions for tobacco smoking, Nevada’s recreational marijuana law makes no exceptions. Smoking marijuana in a public place, which is defined simply as “an area to which the public is invited or in which the public is permitted regardless of age,” is a misdemeanor. NRS 453D.030(17), NRS 453D.400(2).

GGRM helps Las Vegas workers protect their rights

Workers who are concerned that their employers are not taking adequate care to prevent air quality problems have a range of options for addressing the problem. State and federal agencies provide complaint mechanisms, and in some situations a workers’ compensation claim or even a personal injury lawsuit may be appropriate. The law firm of Greenman Goldberg Raby Martinez works with employees in the Las Vegas area to get compensation for injuries caused by problems like bad workplace air quality. For a free consultation call us today at 702-388-4476, or send us a request through our site.

Legal Liability for Sports-Related CTE

Legal Liability for Sports-Related CTE
Chronic traumatic encephalopathy, or CTE, has become a focus issue for sports in general, and especially for contact sports like football and boxing. CTE is connected to repetitive brain trauma from blows to the head. It is a progressive degenerative disease, leading to serious symptoms like memory loss, depression, and dementia. CTE is usually only diagnosed after the ill person dies. For someone who is dealing with problems that are potentially related to sports-induced head trauma, pursuing a lawsuit may be an option.

Potential legal theories for CTE litigation

Litigation for sports-related head injuries can follow several different strategies. The best strategy for a given situation can only be determined by an attorney who has carefully examined the available evidence. But generally speaking, these are the most likely theories upon which a case would rest:
  • Personal injury. A sports league, whether at the professional or amateur level, owes its participants a duty to ensure that the activity is reasonably safe. Failing to do so could expose the league to a personal injury claim based in negligence. For example, a peewee football club that doesn’t take adequate care to ensure that its players’ helmets fit properly could be responsible for the consequences of resulting concussions. A league can also be responsible for not taking reasonable steps to respond to head injuries when they do occur. Personal injury suits may also be appropriate against individuals who have behaved negligently.
  • Products liability. If helmets or other safety equipment do not perform as intended, a plaintiff might have a products liability claim against the manufacturer or seller. Among other things, a products liability claim in Nevada must show that the product had a defect that made it unreasonably dangerous. Nev. J.I. 7.02. This standard may be challenging to overcome absent compelling facts. For example, helmet manufacturer Riddell is facing litigation for alleged misrepresentations in its advertising.
  • Wrongful death. Because CTE is often only recognized after the sufferer dies, the individual’s heirs or representatives may wish to bring a wrongful death suit against a league or individuals that they believe negligently caused the death of their loved one.

Challenges for CTE lawsuits

A lawsuit arising out of CTE will probably face a number of significant challenges. These are just a few examples:
  • Proving causation. For many CTE litigants a major difficulty will be proving that the specific defendant in a case was responsible for the underlying cause of the condition. Because CTE develops over time, it may have many sources. For example, a football player who began his career as a child might have difficulty establishing whether his injuries arose at the peewee level or in middle school, high school, or college.
  • Passage of time. Because CTE is a progressive disease, many years may divide the triggering injuries and diagnosis. The passage of time can render evidence unavailable and erode memories. In this regard, it doesn’t help that CTE affects memory.
  • Assumption of risk. Because CTE tends to be linked most strongly to contact sports like football, boxing, or hockey, defendants may focus on the injured player’s assumption of risk as a participant. This will probably become more prevalent as awareness grows about CTE and other head injuries. Although someone injured in the era before CTE was widely known might not have known about it, and therefore might not have been able to willingly assume the risk, the situation is arguably different today.
  • Liability waivers. Participants in amateur sports typically are asked to sign liability waivers that limit the legal responsibility of organizers and others. It’s always important to read such waivers carefully before signing them.

Consult with experienced personal injury lawyers

CTE can be a particularly devastating injury for people suffering from it and for the loved ones who care for them. Especially when CTE leads to unmanageable medical costs, litigation may offer a path to financial relief. The personal injury attorneys at GGRM have served the Las Vegas community for over 45 years. For a free attorney consultation call us today at 702-388-4476, or send us a request on our contact page.

First Responders and Third-Party Negligence

First Responders and Third-Party Negligence
First responders face a lot of risks on the job. Firefighters sometimes have to enter burning buildings. Police officers sometimes get into physical altercations with suspects. But sometimes the risks they face are not of the typical sort one might expect. The firefighter rushing into a burning building could fall on a badly maintained staircase. Or a police officer could be attacked by a dog that isn’t properly restrained. In cases where third party neglect causes an injury, what legal recourse is available to the injured first responder?

The “firefighter’s rule” limits personal injury lawsuits

Nevada limits when a first responder can sue a third party for personal injuries the first responder suffers while responding to an emergency. The so-called “firefighter’s rule” is based on the idea that emergency personnel are public servants paid to take risks in the course of their duties. Essentially, the rule assumes that first responders assume the risk of injury. In Nevada, the rule originated in the state Supreme Court decision in Steelman v. Lind, 97 Nev. 425 (1981). In response to Steelman, the Nevada legislature created an exemption to the rule’s default bar against recovery. Under NRS 41.139, a first responder may sue for personal injury if the injury was caused by the defendant’s willful act or lack of ordinary care or skill in the management of their property and one of the following things was true:
  1. The conduct causing the injury occurred after the defendant knew or should have known about the presence of the first responder on the property.
  2. The person intended to cause the injury (for example, by setting a trap).
  3. The conduct violated a statute, ordinance or regulation that was intended to protect the first responder, or that prohibits resistance or requires compliance with the first responder’s instructions.
  4. The injury arose as a consequence of arson.
In Moody v. Manny’s Auto Repair, 110 Nev. 320, 326 (1994), the Nevada Supreme Court interpreted NRS 41.139 as a narrowing of the firefighter’s rule’s bar against recovery to “those instances when the negligent act which injures the public servant is the same act which required the public servant's presence.” In Moody the question was whether the firefighter’s rule prevented a police officer for injuries caused by a cable strung across the entrance to the defendant’s parking lot. Officer Moody had turned into the lot as a shortcut while in pursuit of a driver who had run a red light. Id. at 322. Because the event causing the officer’s presence on the property wasn’t related to the thing that caused the injury, the officer’s suit could go forward.

File a workers’ compensation claim

Regardless of whether the firefighter’s rule prevents a civil lawsuit, a first responder who is injured while on the job should file a workers’ compensation claim. Although the benefits of  workers’ compensation insurance might be substantially less than what could potentially be recovered in a personal injury lawsuit, the fact remains that recovering damages through civil litigation can be slow. Workers’ comp coverage ensures that injured first responders get the care they need without going into personal debt. In cases where a personal injury suit is an option, the workers’ comp insurance carrier likely will require the first responder to agree to some form of subrogation. Insurance subrogation allows insurers to recover their costs from third parties who are responsible for the insured worker’s injuries. When considering whether a personal injury suit is a good idea, it’s worth evaluating how an insurer’s subrogation rights may limit personal recovery.

GGRM serves Las Vegas first responders

For over 45 years the law firm of Greenman Goldberg Raby Martinez has proudly served the police, firefighters, and emergency medical personnel of the Las Vegas area. If you have questions about how Nevada’s firefighter’s rule affects your legal options, our attorneys are here to help.  To speak to an attorney, call us today at 702-388-4476, or ask us to call you by leaving a note on our contact page.

Post-Traumatic Stress Disorder and Workers’ Compensation in Nevada

Post-Traumatic Stress Disorder and Workers' Compensation in Nevada
Post-traumatic stress disorder, or PTSD, has received a lot of media attention for its prevalence among soldiers returning from overseas. But PTSD can also be a problem for people who experience extremely stressful workplace situations here at home. This is especially true for first responders who deal with violent or traumatic situations, but can also apply to someone who witnesses a bad work accident. Because the symptoms of PTSD can make working difficult or impossible, it can qualify someone for disability benefits. If the event that triggered PTSD happened at work, the sufferer may also qualify for workers’ compensation benefits.

Nevada’s stress injury statute

NRS 616C.180 governs workers’ compensation for injury or disease caused by stress, including PTSD. There are two important features of this statute. First, it explicitly exempts from coverage any condition “caused by any gradual mental stimulus.” This precludes workers’ comp claims for certain types of anxiety-related conditions. Second, the statute defines when a stress-related claim is compensable. To qualify for benefits, the condition must meet these factors:
  1. The employee has a mental injury caused by extreme stress in time of danger.
  2. The primary cause of the injury was an event that arose out of and during the course of employment.
  3. The stress was not caused by a layoff, termination, or any disciplinary action.
NRS 616C.180(3). The most important feature of this statute is the requirement that the stress must arise from a distinct event. A gradual accumulation of stress will not be compensable. In McGrath v. State Dep’t of Pub. Safety, 123 Nev. 120 (2007), the Nevada Supreme Court interpreted the statute to require claimants “to identify a discrete, identifiable, traumatic occurrence that gave rise to stress.” Like other disease-related workers’ comp claims, proving that the injury “arose out of and during the course of employment” may also be a challenge for PTSD sufferers. For example, if the traumatic event was not itself work-related, an insurer may try to deny the claim. A police officer involved in an on-duty shooting might have little trouble with this element, but it might be less clear for an off-duty officer who witnesses a traumatic traffic accident and offers her assistance.

Late onset further complicates claims

One challenge of PTSD is that it can develop long after the precipitating event. For a worker who begins to experience symptoms long after the event, it can be difficult to meet the statutory requirements for a good compensation claim. In Nevada a work-related illness must be reported to the employer within seven days of being discovered. In the case of PTSD, which can come on gradually, the point when the condition was known may become a major point of dispute. Insurers will deny claims on the basis that they were not reported on time, shifting the burden to the employee to show that he or she provided timely notice only after becoming aware of the connection between the traumatic work-event and PTSD. Late onset involves other practical problems as well. It may be difficult to trace the PTSD to a specific event. Witnesses to the event also may be difficult to procure.

GGRM is here to support people dealing with PTSD

The attorneys at the law firm of Greenman Goldberg Raby Martinez have handled complicated workers’ compensation cases for over 45 years. We are especially proud of our work with first responders in the Las Vegas area. If you are suffering from work-related PTSD and have questions about how to pursue a workers’ compensation claim, reach out to us for a free attorney consultation. Call us at 702-388-4476, or send us a request through our site.

Evidence in Workers’ Compensation Cases

Evidence in Workers' Compensation Cases
Gathering the necessary evidence is a critical part of successfully disputing a denied workers’ compensation claim. To receive benefits an injured worker needs to prove several things, including that the injury was work-related, that the worker was an employee of the employer at the time of the injury, and that the worker satisfied the statutory formalities of a claim.

Kinds of evidence in a workers’ compensation dispute

There are several kinds of evidence needed in any workers’ comp dispute. As a preliminary matter, the employee needs to have copies of required forms, along with evidence that they were submitted on time to the employer, insurer, and third-party administrator. Claims are often denied due to missed paperwork deadlines. At least two forms are required in any Nevada workers’ compensation claim. The Notice of Injury or Occupational Disease (Form C-1), also called an incident report, must be submitted to the employer within seven days of the injury or becoming aware of a work-related disease. The claim process itself begins with the submittal of an Employee’s Claim for Compensation/Report of Initial Treatment (Form C-4). Typically this form is furnished and submitted by the healthcare provider. It must be submitted to the insurer within three working days of treatment. Needless to say, the facts of an injury are central to making a good claim for benefits. Medical records not only show that the injury exists, they also show that the related healthcare services should be covered or reimbursed. Bear in mind that medical records can also prove an insurer’s case, if they show that an injury was not related to work. The employee also needs proof of employment at the time of the injury. Workers’ compensation does not cover independent contractors in many situations. For some, proving employment should be a straightforward matter of providing copies of recent pay stubs, an offer letter, or other relevant documentation. For others, such as those who are hired only by verbal agreement or get paid entirely in cash, proving an employment relationship can be a challenge. Finally, third-party statements can be critical to supporting a claim. Witnesses to an accident can verify that the injury was work-related, as well as other details. In some cases experts are needed to establish causation between the job and the injury. For example, an expert can provide testimony about the link between workplace conditions and an employee’s cancer.

When evidence is needed

An injured Nevada worker who wants to dispute a denied claim must follow the process administered by the Department of Administration. Evidence must be presented at the initial hearing, which can take place within a fairly short period of time after the hearing request. Although the initial hearing is relatively informal, having high-quality evidence available can be the key to ending the dispute at this early stage. On the other hand, incomplete or inadequate evidence will not give the hearing officer sufficient grounds for overturning the claim denial.

GGRM can help

One reason to involve an experienced workers’ compensation attorney early in a claims process is to ensure that important evidence is gathered, preserved, and organized in a way that maximizes the likelihood of getting benefits. Employees who face claim denials can be sure that attorneys for the employer and insurer will work hard to defend their clients’ positions. The law firm of Greenman Goldberg Raby Martinez has helped employees in the Las Vegas area pursue their workers’ compensation claims for more than 45 years. We would be happy to talk to you about strategies for getting the benefits you deserve. To speak to an attorney, please give us a call today at 702-388-4476. We can also be reached through our contacts page.

How to Handle Work-Related Hearing Loss

How to Handle Work-Related Hearing Loss
Nevada’s workers’ compensation laws treat hearing loss as an occupational disease. Like some other kinds of disease, such as cancer, hearing loss can raise challenging evidentiary problems for workers who seek workers’ compensation coverage. A sudden, catastrophic loss of hearing caused by a single loud noise is relatively straightforward. But often hearing degrades over the course of routine exposure to loud sounds, like noisy engines, sirens, or gun shots. When the hearing loss is due to an accumulation of small incidents, proving that the employer is responsible can be a challenge.

The types of hearing loss

A good starting point for anyone thinking about how hearing loss relates to workers’ compensation is to understand the kinds of hearing loss. Hearing loss is divided into three types. Conductive hearing loss is caused by problems in the outer or middle ear that prevent some frequencies from reaching the inner ear, where sounds are converted into electrical signals that the brain interprets. Conductive hearing loss can be caused by things like ear infections, fluid from colds, or punctured ear drums. Exposure to loud noise doesn’t cause conductive hearing loss. Work-related conductive hearing loss would need to involve something more than just noise: an object getting stuck in the outer ear, for example. Sensorineural hearing loss is the second type. It takes place in the inner ear and can be caused by aging, genetic predisposition, or illnesses. It can also be caused by exposure to loud noises, making it the more likely type of hearing loss to be covered by workers’ compensation. The third type of hearing loss is a mix of the first two. Someone who has noise-related damage to the inner ear and routine fluid buildup in the middle ear due to allergies might be diagnosed with mixed hearing loss. In these cases, the challenge is to allocate the relative significance of the two (or more) causes of hearing loss. An audiologist may be able to distinguish between different causes and provide a diagnosis of the extent to which sensorineural hearing loss is a factor.

Where the work is loud, problems arise

Employers that regularly expose their workers to loud noises are routinely advised, and in some cases required, to put their employees through pre-employment hearing tests (or audiograms). A test at the beginning of employment provides a baseline that serves at least two important purposes. First, it relieves the employer of any obligation for covering existing hearing loss that might have occurred at the employee’s prior jobs. Second, it can serve as evidence of how much hearing loss the employee has suffered, especially if the loss has been gradual. In some cases, like firefighters and police officers (see NRS 617.454), employees are required to undergo routine hearing tests. The timing requirement for reporting an occupational disease poses a real challenge to employees who have suffered hearing loss. Nevada law requires employees to report an occupational disease within seven days of knowing about the disease and its relationship to their job. NRS 617.342(1). But determining when an employee “knew” about the hearing loss can be difficult. Waiting too long to act can be grounds for a denied claim. For that reason, workers who think their hearing has been affected by their jobs shouldn’t wait to begin the reporting and claims process.

Experienced workers’ compensation attorneys can help

The attorneys at the law firm of Greenman Goldberg Raby Martinez specialize in resolving complicated workers’ compensation problems. We have served employees in the Las Vegas area for over 45 years, and we’d be happy to answer your questions. For a free attorney consultation call us today at 702-388-4476, or ask us to reach out to you through our contact page.

Recreational Marijuana and Workers’ Comp in Nevada

Recreational Marijuana and Workers' Comp in Nevada
In January 2017 Nevada joined a handful of other states in decriminalizing recreational marijuana use. NRS 453D.010 et seq. Legalization has raised a number of interesting employment-related legal questions. Workers who use marijuana recreationally should take time to understand how marijuana use interacts with workers’ compensation coverage.

Decriminalization of marijuana left other prohibitions in place

Perhaps the most important thing to bear in mind about Nevada’s recreational use statute is that it only eliminated certain criminal penalties for possession and use of marijuana. It does not require employers to no longer test employees for marijuana use. Nor does it change the way workers’ compensation insurers use evidence of drug use to deny claims. Nevada’s workers’ compensation statute provides that an insurer can deny a workers’ compensation claim if the injury “occurred while the employee was under the influence of a controlled or prohibited substance.” NRS616C.230(1)(d). The test to determine if an employee was “under the influence” of marijuana is the same as the test used to determine liability under DUI laws: 10 or more nanograms per milliliter in a urine sample, or 2 or more nanograms per milliliter in a blood sample. NRS 484C.110. The law provides an exception for workers who have lawful prescriptions for medical marijuana. As decriminalization matures it will be interesting to see how insurers go about proving that a worker was under the influence of marijuana. Unlike drivers, who are deemed to provide implied consent for a blood test to determine intoxication during a traffic stop, an injured worker might not have a blood or urine sample taken. On the other hand, an insurer might use information from a manager or other employees to infer that the employee had recently used marijuana at the time of the injury.

Overcoming a denied claim

An employee whose claim is denied can overcome the denial only by showing clear and convincing evidence that being under the influence of marijuana was not the proximate cause of the injury. Nevada’s “clear and convincing” evidence standard calls for proof showing that the claim is highly likely to be true. In technical terms, clear-and-convincing is a higher standard than the “preponderance of the evidence” standard applied to many questions of proof in civil lawsuits. Albert H. Wohlers & Co. v. Bartgis, 114 Nev. 1249, 1260 (1998). The preponderance test only asks whether evidence for one proposition outweighs the evidence for the arguments against it. “Clear and convincing” requires something more, which can be a difficult standard to meet depending on the facts and the kinds of evidence available. The proximate cause test asks if the worker’s injury would not have taken place but for the marijuana use. Each case will require a careful legal analysis to determine if this connection can be broken through clear and convincing evidence. Some cases will be easier than others. For example, if a worker is injured by an object that falls from above, the fact that the worker had smoked marijuana the night before might not be a proximate cause of the injury. On the other hand, if the worker smoked marijuana in the morning and stumbled into a ditch, the worker may have difficulty showing that the drug’s influence didn’t lead to the fall.

Contact GGRM to discuss your options

The intersection of workers’ compensation law and recreational marijuana involves tricky issues that need expert analysis. If you have had a workers’ compensation claim denied because of recreational marijuana use, you may have legal options available to you. The attorneys at GGRM have helped workers’ compensation clients in the Las Vegas area for over 45 years. For a free attorney consultation call us at 702-388-4476, or request a call through our website.