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Responding to Abuse of the Mentally Disabled

When a loved one suffers from a mental handicap, it can be especially painful to learn that he or she has been abused in some way. Whether the abuse is at the hands of a caregiver, a trusted friend, or a stranger, the offender’s actions could have long-term consequences both for the abused person and those who must continue providing care. Representatives of the abused person may wish to seek compensation from the abuser by filing a lawsuit.

What constitutes abuse in Nevada

Nevada law protects “vulnerable persons” from abuse. A vulnerable person is someone who has a physical or mental impairment that substantially limits one or more of the major life activities of the person and has a medical or psychological record of the impairment or is otherwise regarded as having the impairment. NRS 41.1395(4)(e). The law specifically provides that the definition includes people with intellectual disabilities, severe learning disabilities, severe mental or emotional illness, or who has suffered from a terminal or catastrophic illness or injury. It may be helpful to note that the law’s language regarding a condition affecting “major life activities” and allowing for a condition to be diagnosed or merely “perceived” track the definitions of disability used in important statutes like the federal Americans with Disabilities Act, or ADA.

“Abuse” falls into two categories. The first is a willful and unjustified infliction of pain, injury, or mental anguish. The second category involves an intentional deprivation of food, shelter, clothing, or services that are necessary to maintain the victim’s physical or mental health. NRS 41.1395(4)(a). The key component of this definition is that the alleged abuser must have acted willfully and without justification. It isn’t enough to show that the abuser was negligent or sloppy in how he or she cared for the mentally disabled person. Instead, the abuser needed to intend to do the harm.

Who can be an abuser?

Note that the definition of abuse doesn’t express any opinion about who can do the abusing. For purposes of showing abuse, it makes no difference if the defendant was a professional providing care in a formal arrangement or just a friend. Anyone around the mentally disabled person could commit abuse according to the first category set out above—an intentional infliction of mental or physical suffering is a clear case. The challenge for plaintiffs in these cases can be proving that the abuse happened and was the defendant’s fault. This is especially true if the victim lacks capacity to testify against the defendant.

The second category of abuse is potentially more subtle. How much food, shelter, clothing, and other services are “necessary” for any one person’s wellbeing? Were the defendant’s actions justified under the circumstances? For example, if an especially ill person was threatening to hurt themselves with clothing, it may be appropriate to leave them without clothes for a time. Situations that at first glance seem like abuse may offer defendants a winning argument. These are tricky questions that require careful analysis and skilled lawyering.

GGRM is a Las Vegas personal injury law firm

For over 45 years the law firm of Greenman Goldberg Raby Martinez has represented injured clients in the Las Vegas area. We are dedicated to providing personal, caring attention to each of our clients. If you or a loved one has suffered abuse and you would like to better understand your legal options, call us today for a free attorney consultation at 702-388-4476 or send us a request on our contact page.

Cancer and Disability Rights in Nevada

Cancer and Disability Rights

Cancer affects every part of patients’ lives, including their careers. The rigors of treatment can force someone to take time off and often hurts job performance. In the midst of a battle with cancer, a patient may need to take advantage of rights and protections for people with disabilities, including the federal Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 et seq., and the Family and Medical Leave Act (FMLA).

The ADA prohibits workplace discrimination on the basis of disability

The ADA protects cancer patients who work for an employer with at least 15 employees from being unfairly treated by their employers as a consequence of their illness. Cancer and its treatment will likely qualify a patient as disabled for ADA purposes. The law’s definition of “disability” captures any physical or mental impairment that substantially limits a major life activity. It also covers people with a history of such impairments (for example, cancer survivors) and someone who is perceived to have such impairments (for example, an employee who has lost his or her hair while undergoing chemotherapy treatments).

Under the ADA an employer cannot take an adverse employment action solely on the basis of a worker’s disability. Instead an employer must take steps to provide a worker with reasonable accommodations that allow the worker to continue employment. Reasonable accommodations might include a changed work schedule, temporary or permanent reassignment to a less demanding role, or physical changes to the workplace to make the employee more comfortable, such as providing a chair where before the employee was asked to stand.

The ADA Amendments Act of 2008 clarifies the ADA’s scope of “disability” to include anything that limits basic bodily functions. It also expressly provides that a condition’s impairments cannot be judged in light of mitigating treatments. For example, a cancer patient who is taking anti-nausea medication may still require accommodations to deal with nausea.

The FMLA offers options for cancer patients and their families

The FMLA protects patients who need to take time off work for treatment by prohibiting employers from firing them. It also protects employees who need to take time off to care for a loved one. An eligible employee may take up to 12 weeks of unpaid leave, cannot lose any employer-provided health insurance coverage while on leave, and must be allowed to return to the same position once leave has ended.

Compared to the ADA the applicability of the FMLA is somewhat narrower. It only applies to employers with at least 50 employees, and an employee must have been employed for at least 12 months to be eligible. Note that unpaid leave may qualify as a “reasonable accommodation” under the ADA only after an employee has exhausted his or her FMLA leave. The Equal Employment Opportunity Commission provides a useful explanation of leave under the ADA here.

GGRM is here to help employees in the Las Vegas area

At Greenman Goldberg Raby Martinez we know how difficult it can be to face workplace discrimination while also fighting cancer. Our experienced attorneys shoulder the burden of working out disputes with your employer so you can focus on healing. For a free attorney consultation, reach out to us today at 702-388-4476, or ask us to call you through our contacts page.

Opioid Use and Nevada Workers’ Comp Claims

Opioid Use and Nevada Workers' Comp Claims

Opioids are a group of drugs that includes legal painkilling medications like oxycodone and hydrocodone as well as illegal drugs like heroin. Although opioids offer effective treatment for pain, their use can lead to dependency. Illegal use of prescription opioids has become a serious problem throughout the country. Workers who suffer injuries on the job may have questions about how Nevada’s workers’ compensation law treats opioid use.

Workers’ compensation coverage and drug use

Like other drugs or alcohol, opioids may impair judgment and physical reaction times. Under Nevada’s workers’ compensation law, an insurer can deny an injured worker benefits if the worker was under the influence of a controlled substance at the time of the injury, unless the worker can show that being under the influence was not the proximate cause of the injury. NRS 616C.230(1)(d). The legal definition of “under the influence” for opioids varies depending on the substance involved, but follows the same standards as police use to determine if a driver was driving while intoxicated.

A worker who does not have a valid prescription for opioids therefore risks loss of workers’ compensation coverage. Because opioids can cause occupational impairment, a user may be more likely to suffer injury. Loss of coverage is just one more risk a user assumes by continuing to abuse opioids. The best course is always to seek help with overcoming drug dependencies. Many employers offer anonymous employee assistance programs to help their workers stay healthy.

Prescription medications and disability

Nevada workers’ compensation law makes an exception for workers with lawful prescriptions for controlled substances, including opioids. NRS 616C.230(1)(d). An insurer cannot base a denied claim solely on the fact that someone is taking prescription medication.

Workers who are currently taking prescription opioids to manage pain for a condition also may qualify for the legal protections extended to disabled individuals. Under the Americans with Disabilities Act (ADA), an employer must provide a disabled employee with reasonable accommodations to account for his or her disability. In Nevada a disabled person cannot be fired solely for taking prescription medication to treat a disability. For workers who take prescription opioids to treat job-related injuries that are covered by workers’ compensation, an employer may need to offer light duty work.

Talk to an experienced workers’ compensation attorney if you have questions

If you have questions about how opioid use may affect your ability to claim workers’ compensation benefits, the attorneys at Greenman Goldberg Raby Martinez are here to help. We have served the Las Vegas working community for more than 45 years and have extensive experience dealing with tricky workers’ comp issues. For a free consultation call us today at 702-388-4476, or send us a request through our site.

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.