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Falls from Ladders: Who Is Liable?

Falls are significant cause of injury and death, both at home and at work. Ladders are involved in many of these injuries. Falling from a height increases the likelihood of severe injuries, from broken bones to concussions, paralysis, and death. As such, using a ladder should be thought of as an inherently risky activity that requires special precautions. Of course, there are several scenarios where a fall from a ladder could occur. Each presents different legal issues:
  • When the ladder is used improperly by the injured person.
A common source of falls from ladders is a simple lack of care by the people who use them. Climbing a ladder that is obviously unstable, carrying something heavy or awkward while climbing, leaning a ladder at an unsafe angle, or standing the ladder on another object like a table, are all examples of cases where the user has contributed in some way to an accident. Nevada is a modified comparative negligence state. Even if someone else bears some of the fault for the accident, in litigation that person likely will argue that the injured plaintiff bears at least a portion of the fault. The amount the plaintiff can recover from a defendant can be reduced by the amount of his or her comparative fault. If the plaintiff is found to bear 50% or more of the fault, then the defendant will pay nothing.
  • When the ladder is defective.
Ladders need to be designed and manufactured to be safe for foreseeable uses by consumers. When a ladder has a defect that makes it unsafe, and a person is injured as a result, a products liability lawsuit may be warranted. In a products liability suit the plaintiff can seek compensation not only from the manufacturer of the ladder but also the businesses in the chain of distribution that brought the unsafe product to market. Note that the defect in the ladder might not be in the ladder itself but in how it is sold or documented. A so-called marketing defect lawsuit could be justified if, for example, a ladder’s instructions fail to mention a key safety step that users must take to ensure the ladder’s stability.
  • When someone other than the injured person causes the fall.
In some cases a fall from a ladder isn’t caused by the ladder or the person who falls, but by a third party’s negligence. This might arise if a person knowingly set up a ladder in an unsafe way and assured the injured person that it was safe to climb. Or it could happen if someone knocks into the ladder out of lack of necessary attention.
  • Falls from ladders at work.
Most work-related injuries fall under a completely different legal standard from other types of injury. With few exceptions, injuries from a fall at work are covered by Nevada’s workers’ compensation system. Workers’ compensation covers all injuries arising out of or in the course of employment. As a no-fault form of insurance, it will apply regardless of the underlying cause of the injury. Compliant employers are shielded from most lawsuits that arise in the course of their employees’ work.

GGRM is a Las Vegas personal injury law firm

Regardless of the circumstances of a fall from a ladder, it’s worthwhile talking to a personal injury attorney to determine if there are arguments to be made for seeking compensation from potentially at-fault parties. The law firm of Greenman Goldberg Raby Martinez has represented clients in personal injury and workers’ compensation cases for over 45 years. Call us today for a free attorney consultation about your injury at 702-388-4476 or reach out to us through our contacts page.

Health Care Choice and Workers’ Comp

Healthcare Choice and Workers’ Comp
People who are injured on the job can feel forced to work with health care providers that the insurance administrator dictates. Too often claims adjusters choose doctors more for their insurer-friendly track record rather than their concern for patient welfare. Injured workers should know that the law gives injured workers a choice of doctors, but exercising that right requires the patient to follow certain steps. Nevada’s industrial insurance law specifies the procedures for selecting a physician to evaluate and treat a worker’s injuries. The Nevada Division of Industrial Relations maintains a list of physicians it has qualified to treat workplace injuries. Insurers keep their own lists of physicians, whom they choose from among the DIR-approved list. After an injured worker submits a claim for benefits, the insurer can request the employee undergo an independent medical examination, or IME, with a doctor from the insurer’s list. The patient has the right to select the doctor who performs the IME from the insurer’s approved list, without first getting insurer approval. However, this exam is not optional, and failure to attend can be grounds for denying a claim. If the injured worker isn’t satisfied with the doctor who performed the IME, NRS 616C.090 provides that he or she has the right to choose a second doctor from the insurer’s approved list. Although insurers and physicians are required to notify employees of this right, many don’t. The choice must be made within the first 90 days of the claim. A request for a change of doctor after the 90-day window becomes subject to insurer approval. Even though there are limits on which doctor a patient can choose, making a choice is a vital part of protecting an injured worker’s rights. Insurers are in the business of finding ways to deny claims. Their incentive is to choose doctors who will diagnose conditions and recommend treatments that impose the least cost upon insurers. The doctors similarly have a strong financial incentive to keep their patient volumes high by making the “right” choices for insurers. In this system it’s essential for injured workers to actively seek out caregivers who will put the worker’s health ahead of profit. In circumstances where the deck seems to be stacked against an injured worker, an experienced workers’ compensation attorney can make a big difference. For over 45 years the law firm of Greenman Goldberg Raby Martinez has represented injured workers in the Las Vegas area. If you have been injured at work and have questions about your right to choose a doctor, our attorneys can help. To speak to an attorney at no cost, please give us a call today at 702-388-4476. We can also be reached through our contacts page.

Are Nevada Employers Responsible for Providing Ergonomic Workplaces?

Are Nevada Employers Responsible for Providing Ergonomic Workplaces?
Working in an environment that is not ergonomically designed can lead to long-term health problems. Issues like carpal tunnel syndrome, bursitis, and strained muscles can take years to resolve and can require surgery. Nevada employers are not specifically mandated to provide ergonomic workplaces, but a combination of safety regulations and financial incentives gives them good reason to take ergonomics seriously.

OSHA and ergonomics in Nevada

The “general duty clause” of the federal Occupational Safety and Health Act (OSHA) and the equivalent state law requires employers to provide a workplace that is “free from recognized hazards that are causing or likely to cause death or serious physical harm” to employees. 29 U.S.C. §654, NRS 618.375. The Occupational Safety and Health Review Commission, which adjudicates disputes arising from enforcement of federal OSHA standards, has held that ergonomics problems can be a “recognized hazard.” Pepperidge Farm, Inc., 1997 OSHARC LEXIS 40 (No. 89-265, 1997). Because bad ergonomics can lead to enforcement actions by state and federal OSHA agencies, employers have good reason to adopt policies to encourage healthy practices, provide ergonomics evaluations, and upgrade work spaces to reduce the risk of repetitive motion injuries. The state has adopted an instructive set of guidelines to improve workplace ergonomics for its own employees.

The cost of ergonomics-related injuries

Besides concerns about OSHA compliance, employers also have good financial reasons to improve the ergonomics of their workplaces. In addition to potentially losing productivity due to injuries, an employer may also face other kinds of costs, including:
  • Higher workers’ compensation premiums. An employee who suffers an on-the-job injury that requires medical care is entitled to workers’ compensation benefits. When workers make claims an employer’s insurance costs can go up.
  • Disability law compliance. When an employee’s work-related injuries lead to temporary or total disability, an employer becomes responsible for providing the employee with reasonable accommodations that account for the disability. This might include offering the employee light duty, or moving the employee to another role. In addition to being expensive, these changes can be disruptive to the workplace.
The law firm of Greenman Goldberg Raby Martinez represents personal injury and workers’ compensation clients in the Las Vegas area. If you have suffered an injury at work that is ergonomics-related, our experienced attorneys are happy to help you understand your legal options. For a free attorney consultation, reach out to us today at 702-388-4476, or ask us to call you through our contacts page.

Can Employers Be Liable for Workplace Violence?

Can Employers Be Liable for Workplace Violence?
The threat of violence has become an unfortunate part of the working world. From fistfights to sexual assault and shootings, when violence enters the workplace it can disrupt lives and hurt business. Someone who is seriously hurt in a violent incident at work should speak to an experienced personal injury lawyer about the legal options for recovering compensation. One question that will come up is whether the employer bears responsibility.

Violence and the workers’ compensation exclusive remedy rule

Nevada’s workers’ compensation law imposes stark limits on when an employee can sue an employer for injuries suffered while at work. With few exceptions, so long as the employer has the mandatory workers’ compensation coverage, an employee’s only remedy for “injury by accident arising out of and in the course of the employment” is to pursue a workers’ compensation claim. NRS 616A.020. Generally speaking, an employee cannot bring a personal injury lawsuit against his or her employer provided that the employer has workers’ compensation insurance. The Nevada Supreme Court has given a broad reading to the exclusive remedy rule. In Cummings v. United Resort Hotels, 85 Nev. 23 (1969), a hotel worker was murdered by a mentally ill coworker in the hotel’s employee locker room. The Court agreed with the lower court’s conclusion that the attack “arose out of” the dead worker’s employment, and therefore a workers’ compensation exclusive remedy rule barred a personal injury claim. The Court reached the same conclusion with respect to a workplace sexual assault. Wood v. Safeway, Inc., 121 Nev. 724 (2005). What if the employer knew about a dangerous employee and didn’t take steps to remedy the problem? Even in this case, the employer likely is protected by the exclusive remedy rule. Sweeping Servs. of Tex. v. Eighth Judicial Dist. Court, 2011 Nev. Unpub. LEXIS 159 (2011). Even though the employer knew that a dangerous situation was possible, it cannot be sued.

Intentional harm provides an exception

An important exception to the exclusive remedy rule is for intentional harm committed by an employer against an employee. The key difference with this exception is that the employer “deliberately and specifically intended to injure” the employee. Conway v. Circus Casinos, Inc., 116 Nev. 870, 875 (2000). In its Conway ruling the Supreme Court took pains to clarify that the intent requirement is something more than just knowing about the possibility of injury and not doing anything to prevent it. The injured employee has to show that the employer actively wanted cause the injury. A significant challenge in many such cases will be proving that the employer itself had the requisite intent necessary to overcome the exclusive remedy rule. The Supreme Court has allowed actions to go forward against an individual employer who physically attacked an employee. Barjesteh v. Faye’s Pub, 106 Nev. 120 (1990). It has also allowed a suit to go forward against other employees who allegedly committed intentional harm against a plaintiff. Fanders v. Riverside Resort & Casino, Inc., 126 Nev. 543 (2010).

Consult with experienced attorneys about your workplace violence claims

For over 45 years the law firm of Greenman Goldberg Raby Martinez has represented clients in the Las Vegas area in the areas of personal injury and workers compensation. Our attorneys can answer your tough questions about your legal options to respond to workplace violence. To speak to an attorney at no cost, please give us a call today at 702-388-4476. We can also be reached through our contacts page.

Workplace Injury Protections for Agricultural Laborers

Workplace Injury Protections for Agricultural Laborers
Nevada law excludes farm workers, including people in dairy, stock, and poultry industries, from the state’s mandatory workers’ compensation system. NRS 616A.110(4). This means that farm workers do not enjoy automatic, no-fault protection in the event they are injured on the job. But agricultural work is one of the most dangerous professions in the country, leading to questions about how an injured worker can recover compensation.

Personal injury lawsuits against agricultural employers

A major benefit for employers in the workers’ compensation system is that it provides the exclusive remedy for employees who are injured at work. Because farm laborers are outside the system, they are not limited by the exclusivity clause, meaning they can potentially file a personal injury lawsuit. If a worker is killed, his or her family may be able to pursue a wrongful death claim. A personal injury lawsuit likely will hinge on whether the employer acted negligently. To be actionable, the negligent behavior must have violated a legal duty owed to the worker and needs to have been the legal (or proximate) cause of the worker’s injury. The kinds of legal duties that can support a negligence claim vary based on the facts of the situation. For example, an employer that also owns or manages the property where the work is conducted may owe its workers an obligation to keep the premises reasonably safe. Where a given job involves known risks, an employer should be taking reasonable steps to manage those risks. There are at least two significant problems for farm workers who wish to pursue a personal injury claim. The first is that lawsuits take time. Until a case settles or gets decided in court, the worker bears all the costs of treatment for the injury. The second problem is that plenty of injuries in agricultural work happen not because of negligence but simply because the work itself is dangerous. A ladder tipping over or a cow’s kick may be independent of any action on the part of the employer. In each case, having the advice of an experienced personal injury attorney can be invaluable.

OSHA and agriculture

The federal Occupational Safety and Health Act (OSHA), 29 U.S.C. 15 et seq., requires every employer in the United States with at least 15 employees to ensure that the work environment is “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. This so-called “general duty clause” requires employers to take reasonable steps to address hazardous conditions. These steps might include providing appropriate safety equipment and training, ensuring that machinery is properly maintained, and making sure that dangers like deep holes or exposed electrical wires are not left unmarked. In addition to the general duty clause, a number of specific OSHA standards apply to agricultural operations. For example, employers with 11 or more hand-laborers in the field must provide toilets, potable drinking water, and hand washing facilities in the field at no cost to the workers. There are also special rules governing roll-over bars on tractors. An employer who fails to comply with OSHA requirements can be subject to administrative fines by state and federal enforcement agencies. The law protects workers who bring complaints against retaliation by employers. Unfortunately, OSHA does not provide a private cause of action, meaning a worker cannot directly sue an employer for violating OSHA standards. Crane v. Conoco, Inc., 41 F.3d 547, 553 (9th Cir. 1994).

GGRM is here to answer your questions

The personal injury attorneys at GGRM have served the Las Vegas community for over 45 years. If you have questions about legal options following an injury at work, our attorneys will be happy to answer your questions. For a free attorney consultation call us today at 702-388-4476 or send us a request on our contact page.

Sun Exposure At Work

Sun Exposure At Work
Routine exposure to sun while working can lead to short-term consequences, like severe sun burns and heat stroke, as well as long-term problems like melanoma. Workers who develop serious medical conditions as a result of repeated sun exposure on the job may have questions about their legal options.

OSHA and sun exposure

The Federal Occupational Safety and Health Act (OSHA) and its related regulations do not include rules governing sun exposure. An Occupational Safety and Health Administration interpretation indicates that although OSHA doesn’t specifically require employers to provide sun protection, such as sunscreen lotion, hats, or shade structures, employers are required to provide “appropriate personal protective equipment to prevent exposure to serious hazards.” In short, an employer must take steps to protect employees only from “serious” overexposure. The interpretation cites 29 CFR 1910.132(a), which calls for employers to provide suitable protections against “hazards of environment” that are “capable of causing injury or impairment in the function of any part of the body through absorption, inhalation or physical contact.” But the regulations set a high standard where “hazards” are present, requiring employers to prepare a written certification of hazard assessment, and provide employee training. The regulations specifically exempt employers from having to pay for everyday sun protection clothing and creams. The Administration has not established measurements for determining how much sun exposure qualifies as “overexposure.” In another interpretation, it cites the OSHA general duty clause, which requires employers to keep their workplaces “free from recognized hazards that are causing or are likely to cause death or serious physical harm.” 29 U.S.C. 654. In short, if sun exposure is so bad that it could cause an employee’ s death or serious physical harm, an employer has an obligation to treat it as a “hazard.” In Nevada, where our temperatures can be very high, one can expect sun exposure to meet these requirements in many circumstances.

Sun exposure and workers’ compensation

For workers who suffer injuries like heat stroke or who develop skin cancer, workers’ compensation may offer relief. To be covered by Nevada’ s workers’ compensation system, an injury must arise in the course and scope of employment. Among other things, this rule means that insurers will look for potential causes of the injury that were not related to work. For example, a construction worker who came to work after a night of hard drinking might have contributed to his heat stroke by making himself more vulnerable and not hydrating properly before coming to work. For occupational diseases that develop more slowly, like melanoma, workers will face a more difficult challenge. Unlike other kinds of work-related diseases where exposure to a specific hazard can be isolated to the workplace, sun exposure happens to everyone. But in such circumstances an experienced workers’ compensation attorney should be consulted to carefully evaluate the facts.

GGRM understands complex work-related injury

For over 45 years the attorneys at the law firm of Greenman Goldberg Raby Martinez have handled complicated workers’ compensation cases in the Las Vegas area. If you have questions about your legal options after suffering a sun-related injury at work, contact us for a free attorney consultation. We can be reached 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.

Workers’ Compensation Claims for Break-Time Injuries

Workers’ Compensation Claims for Break-Time Injuries
Nevada requires most employers to carry workers’ compensation insurance. To receive workers’ compensation benefits, an injured employee must show that his or her injuries “arose out of and in the course of his or her employment.” NRS 616C.150(1). Insurers closely examine the facts of an injury to determine if it meets this standard. As a practical matter, it can be difficult to define the borders between an employee’s job and personal life. Injuries suffered during breaks often fall into this grey area.

The Rio case offers an example

In Rio All Suite Hotel & Casino v. Phillips, 126 Nev. 346 (2010), a poker and blackjack dealer was on a 20-minute break when she fell walking down stairs to her employer’s break room. Id. at 348. The casino’s third-party workers’ compensation administrator denied Ms. Phillips’s claim, arguing that her injury did not arise out of the course of her employment. Id. The case made its way through the workers’ compensation appeals process and eventually ended up at the Nevada Supreme Court. To determine if an injury “arises from” employment, the Court in Rio looked at whether the employee showed “a causal connection between the injury and the employee’s work in which the origin of the injury is related to some risk involved within the scope of employment.” Id. at 350-51, citing Mitchell v. Clark County School District, 121 Nev. 179, 182 (2005) (internal quotation marks omitted). The Court went on to distinguish between three types of risk an employee can face at work: employment-related risk, personal risk, and neutral risk. Id. at 351, citing K-Mart Corp. v. Herring, 188 P.3d 140, 146 (Okla. 2008). Injuries suffered as a result of employment-related risk generally are covered by workers’ compensation benefits. Injuries from dangerous equipment, uneven ground at a work site, or other clearly work-related dangers are clearly within the scope of employment-related risk. But injuries arising from personal risks, even if they happen at work, are not covered. Personal risks are those that “could not possibly be attributed to the employment,” such as injuries arising from an employee’s personal health condition, like a fall caused by a bad knee or epilepsy. Id.

“Neutral” risk and the increased-risk test

The Court’s third category of risk, so-called “neutral” risk, encompasses dangers that aren’t readily assigned to either of the other two types of risk. Neutral risks include a fall like the one Ms. Phillips suffered, which happened without a clear work-related explanation (such as a badly maintained staircase) or a clear personal cause (such as an illness). To determine if an employee is entitled to benefits in a neutral risk situation, the Court in Rio adopted the so-called “increased-risk test.” Under this test, benefits should be given to an employee who is exposed “to a risk greater than that to which the general public is exposed.” Id. at 353, citing Herring, 188 P.3d at 146. An employee can face greater risk than the public simply by being exposed to a dangerous situation more often than a member of the general public—that is, the quantity of the risk may matter more than its inherent quality. Id. The Court ultimately held that Ms. Phillips was entitled to workers’ compensation benefits for her injury because she had to go up and down the stairs leading to the employee break room more often than the public, and therefore the risk of climbing the stairs was quantitatively greater for her than for the general public. Id. In its analysis, the court focused on two important facts about Ms. Phillips’s situation: she was required to take periodic breaks, and had to use the stairs to access to the employee break room. Id. at 354.

An experienced attorney can sort through the confusion

Applying the rules of the Rio case to situations involving significantly different facts can be difficult. That is why break-time injuries can be difficult to evaluate without the help of an experienced personal injury lawyer. If you have been injured while on break and you’re having trouble getting workers’ compensation coverage, be sure to talk to an attorney right away. The attorneys at the law firm of Greenman Goldberg Raby Martinez have deep experience with challenging cases. For a free attorney consultation, reach out to us today at 702-388-4476, or send us a request through our site.