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Natural Disasters and First Responder Workers’ Comp

Natural Disasters and First Responder Workers’ Comp
During natural disasters first responders often rush toward the places of greatest hazard. Wildfires, severe weather, floods, and even earthquakes are among the disasters emergency personnel may face here in Nevada. And as we saw during the 2017 firestorms in California, from time to time Nevadans also go to other states to lend assistance to local crews. First responders may have questions about how Nevada’s workers’ compensation system protects them during these events.

Disaster declarations and workers’ compensation

Nevada’s industrial insurance law doesn’t specifically address natural disasters. But Nevada law authorizes the governor to declare a state of emergency in the event of a disaster “of unprecedented size and destructiveness.” Part of the rationale for this law is to ensure that the state can access federal resources to respond to crises. The governor used this authority last year to respond to severe weather in the state. The law also grants the governor broad authority to make and modify rules and regulations to, among other things, ensure the availability of emergency response personnel in times of crisis. NRS 414.060. Similar laws have been used in other states to facilitate provision of workers’ compensation benefits to first responders who are involved in disaster relief efforts. For example, in response to Hurricane Harvey the governor of Texas ordered workers’ compensation insurers to continue providing benefits to workers in affected areas, while also extending deadlines and expanding coverage in important ways. Under the right conditions, the Nevada governor could take similar steps. The Texas example highlights an important consideration during major disasters. In some cases a worker’s ordinary doctor or pharmacy may not be accessible. Workers with existing, covered conditions may need exceptions to their benefits rules, such coverage for out-of-network care or deadline extensions to account for lost power or disrupted communications. Absent a specific declaration from the governor or another authorized government official, workers in this situation may need help getting the care they need.

Workers’ comp has you covered

Even without an emergency declaration from the governor, Nevada’s workers’ compensation system should cover first responders who are injured during natural disasters while they are doing their jobs. Nevada’s industrial insurance system covers injuries that arise out of and in the course of a worker’s employment. NRS 616C.150. Police officers, firefighters, and EMS professionals who respond to natural disasters at the behest of their employers are covered. State law also explicitly provides coverage for volunteer firefighters, both nonprofessionals and professionals alike. Law enforcement personnel are typically authorized to take steps to protect the public even when they are off-duty, but it’s worth checking an employer’s policies to ensure that off-duty activities are covered. Nevada’s workers’ compensation law specifically provides coverage for injuries suffered out of state.  NRS 616C.190. First responders who go out of state to assist local agencies can do so knowing any injury they suffer will be covered. At Greenman Goldberg Raby Martinez we are proud of our long history of helping clients in the Las Vegas first-responder community resolve their workers’ compensation disputes. During emergencies insurers can become difficult to work with, due to high volumes or financial pressures. Having an experienced attorney staying on top of a dispute can make all the difference. For a free attorney consultation, call us at 702-388-4476 or send us a request through our site.

Is a “Do-Not-Resuscitate” Tattoo Binding? Lessons for EMS Professionals

Is a “Do-Not-Resuscitate” Tattoo Binding? Lessons for EMS Professionals
A recent case in Florida has raised a novel question for emergency medical personnel. In December an unaccompanied, unconscious man was brought into a Florida emergency room. He had no identification with him. Tattooed on his chest in bold, clear letters were the words “Do Not Resuscitate” together with a signature. At first the doctors decided to disregard the tattoo, but an ethics committee later advised them to honor it, concluding “that it was most reasonable to infer that the tattoo expressed an authentic preference.” A formal DNR form that complied with Florida law was later found to confirm that the tattoo indeed reflected the man’s legal intent. What lessons can Nevada EMS professionals draw from the Florida case?

Florida and Nevada have similar DNR rules

A key issue raised by the Florida man’s tattoo is whether a tattoo can create a legally binding DNR order. Like Nevada, Florida’s DNR rules impose specific technical requirements that must be met for a DNR order to be legally binding upon medical staff. A Florida DNR order must be printed on yellow paper and signed by both the patient and the patient’s physician. Medical professionals are only obligated to comply with a DNR order if the original is presented, or if the patient is wearing a DNR identification device, which under Florida law is a miniature version of the larger form and also gets signed by a physician. FAC 64J-2.018. Nevada’s rules are fairly similar to Florida’s, though they add an extra step for someone to obtain a binding DNR order. Once an application form is signed by the patient and physician, the form is submitted to the Nevada Division of Public and Behavioral Health. The Division issues a special identification card that alerts medical personnel to the patient’s binding preference.

A tattoo may not be legally binding, but it creates an ethical question

A narrow reading of Nevada’s DNR rules leaves little room for interpreting a tattoo like the one encountered in Florida as a binding order. The tattoo lacked the elements of a formal DNR application, including a physician signature. An EMS professional who encounters a similar tattoo therefore may not have a legal obligation to follow it. At the same time, such a tattoo does appear to give notice to medical personnel that the patient has a preference against resuscitation. If circumstances permit, EMS professionals should take the time to inspect the patient’s home or personal belongings for a valid DNR order. Questions should be asked of anyone else present who might know about the provenance of the tattoo, in case they can help uncover a more binding document. Perhaps the most important lesson of the Florida case for EMS professionals is that the decision of whether to honor a DNR tattoo ideally should rest with individuals with the authority to make formal decisions on behalf of the employer. Although a decision in the field to honor a do-not-resuscitate tattoo might seem like the ethical choice, it is not supported by the law.

GGRM is proud of its work with the Las Vegas EMS community

The attorneys at Greenman Goldberg Raby Martinez have a long track record of supporting clients in the Las Vegas first responder community. We are happy to answer your questions about Nevada’s laws regarding DNR orders. For a no-cost attorney consultation, call us today at 702-388-4476, or ask us to call you through our contact page.

Can Emergency Personnel Sue Landowners for Negligent Maintenance?

Emergency personnel often get hurt in the course of responding to emergencies. Firefighters can be injured by conditions on a property that have nothing to do with a fire. EMS professionals can fall on badly maintained stairs. Police can be attacked by dogs that aren’t adequately chained. When a landowner’s failure to take proper care of a property causes an injury, first responders may wonder if they have the option to sue for personal injury damages.

First responders assume the risk of injury

Nevada law limits when first responders can sue for injuries they suffer on the job. There are two policy reasons for this. First, first responders are paid by the public to confront dangers that members of the public may create through negligent acts. And second, first responders are paid and trained to assume the risk of personal injury. Steelman v. Lind, 97 Nev. 425, 427-28 (1981). In adopting this “firefighter’s rule” the Nevada Supreme Court in Steelman reasoned that the public might hesitate to call upon emergency personnel if doing so would create a risk of being sued. Instead, first responders are paid a salary and given fringe benefits, including workers’ compensation coverage. See id. at 427. But first responders should note that Nevada’s workers’ compensation law (the Nevada Industrial Insurance Act) prevents most lawsuits against employers for personal injury. NRS 616A.020. The only recourse against an employer for a job-related injury is to file a workers’ compensation claim.

Lawsuits for negligence unrelated to the emergency

The facts in Steelman illustrate how the firefighter’s rule works in the case of another person’s negligence. In Steelman a police officer pulled to the side of an interstate highway to assist someone who had lost beehives off the back of his trailer. The officer parked his car behind the trailer, with lights flashing, and was sitting in the patrol car when a tractor trailer struck it. In Steelman the beehive owner (Mr. Lind) had committed an act of negligence by allowing his beehives to fall into the roadway. But because Officer Steelman was responding to the emergency created by Mr. Lind’s negligence in Steelman’s role as a police officer, the firefighter’s rule applied. The same logic applies to negligent maintenance by a landowner where the negligence was the cause of the first responder being on the property. But the Nevada Supreme Court has ruled that the firefighter’s rule does not necessarily bar lawsuits for injuries arising from negligence that was unrelated to the event that led the first responder to be there. Moody v. Manny’s Auto Repair, 110 Nev. 320 (1994). A firefighter who gets burned helping someone escape from a structure fire probably can’t sue the landowner for negligently maintaining a gas line. But an EMS professional who is injured when a badly built staircase collapses may have recourse under the rule in Moody.

Statutory exceptions to the firefighter’s rule

There are several statutory exceptions to the firefighter’s rule. NRS 41.139 provides that first responders can sue for personal injury in cases where someone has not exercised ordinary care or skill in the management of a property, provided that the conduct that caused the injury (1) occurred after the responsible person knew or should have known that the first responder was on the property, (2) was conducted with the intent of hurting the first responder, (3) violated a statute, ordinance, or regulation, or (4) was arson.

GGRM can help sort through the details

For over 45 years, the lawyers at Greenman Goldberg Raby Martinez have helped injured clients in the Las Vegas first responder community protect their legal rights and get the compensation they deserve. If you have questions about how the firefighter’s rule limits your options to sue a landowner for negligent maintenance, our attorneys are happy to help. For a free consultation reach out to us today at 702-388-4476 or contact us through our website.

Workers’ Comp Lessons for Off-Duty Police Officers from the Route 91 Harvest Festival Shooting

Workers’ Comp Lessons for Off-Duty Police Officers from the Route 91 Harvest Festival Shooting
When the shooting started at the Route 91 Harvest Festival on October 1, off-duty police officers at the scene became a heroic part of the effort to get concert-goers to safety. Hundreds of off-duty officers from California were attending the festival, and many of them were injured in the course of their efforts. Now they are finding that their home agencies are denying their workers’ compensation claims due to the way California’s laws are worded.

The reason California officers’ workers’ comp claims are being denied

The issue for the injured California officers is that California’s labor code specifies that workers’ compensation coverage only extends to off-duty injuries that occur within California. Section 3600.2(a) of the California Labor Code provides that benefits will be provided to any off-duty officer who is injured while engaged “in the apprehension or attempted apprehension of law violators or suspected law violators, or protection or preservation of life or property, or the preservation of peace anywhere in this state . . .” (emphasis added). Orange County has rejected four officers’ claims on grounds that the statute leaves no room for covering actions outside the state, and other jurisdictions are weighing the issue. Litigation is expected to follow, and members of California’s legislature are discussing bills to extend coverage to the injured officers. There are concerns that the proposed “fixes” would only cover short-term care, and not things like long term disability.

Workers’ compensation considerations for off-duty Nevada officers

Nevada’s workers’ compensation laws do not have the kind of geographical limitation that California’s laws impose. To receive workers’ compensation benefits for an injury a Nevada police officer is required only to show that the injury “arose out of and in the course of his or her employment.” NRS 616C.150. The central question for first responders, then, is whether their off-duty actions to protect the public fall within the scope of their employment duties. Officers should take a moment to look at their department’s specific policies and collective bargaining agreements to understand how off-duty situations are defined. For example, the section 2.37.01 of the North Las Vegas Police Department Policy Manual provides that off-duty officers “will always be subject . . . to emergency requests for assistance from citizens.” Under this language, an off-duty officer responding to an emergency is acting under department policy and therefore any injury suffered as a consequence would likely be “in the course of employment.” An important question for North Las Vegas officers is whether responding to emergencies outside the department’s jurisdiction still qualifies. From a public policy standpoint, no law enforcement agency wants to discourage its first responders from offering assistance when their skills and training can help keep the public safe. But as the Route 91 aftermath has shown, an injured officer can find recovering for off-duty injuries involves an unexpected legal fight.

GGRM serves the Las Vegas police community

In these complex and dangerous times, our police officers can face difficult questions that don’t have clear answers, especially in emergencies. For more than 40 years the attorneys at GGRM have served the legal needs of the Las Vegas first responder community. Our attorneys are happy to talk to officers about how workers’ compensation covers off-duty situations. Call us at 702-388-4476, or request a consultation through our website.