AB200 - Revises provisions relating to industrial insurance. (BDR 53-862)

A.B. 200 - *AB200* ASSEMBLY BILL NO. 200–ASSEMBLYMEMBER KARRIS PREFILED FEBRUARY 3, 2025 ____________ Referred to Committee on Commerce and Labor SUMMARY—Revises provisions relating to industrial insurance. (BDR 53-862) FISCAL NOTE: Effect on Local Government: No. Effect on the State: Yes. ~ EXPLANATION – Matter in bolded italics is new; matter between brackets [omitted material] is material to be omitted. AN ACT relating to industrial insurance; establishing certain methods which must be used by the Administrator of the Division of Industrial Relations of the Department of Business and Industry to calculate an average monthly prevailing wage; revising provisions to provide for the recalculation of the average monthly prevailing wage of an injured construction worker; requiring the compensation of a construction worker who is injured or disabled or who dies to be based on the greater of the worker’s average monthly wage or average monthly prevailing wage; revising provisions governing the payment in a lump sum for a construction worker with a permanent partial disability; and providing other matters properly relating thereto. Legislative Counsel’s Digest: Existing law establishes the Nevada Industrial Insurance Act and the Nevada 1 Occupational Diseases Act, which provide for the payment of compensation to 2 employees who are injured or disabled or who die as a result of an occupational 3 injury or occupational disease. (Chapters 616A-616D and 617 of NRS) 4 Existing law provides that compensation for permanent total disability, 5 temporary total disability, permanent partial disability and death is based on a 6 calculation of the average monthly wage of the injured employee. (NRS 616C.440, 7 616C.475, 616C.490, 616C.505) The Administrator of the Division of Industrial 8 Relations of the Department of Business and Industry is required to provide by 9 regulation for a method of determining average monthly wage, to include, if 10 possible, historical wages earned by the injured employee. (NRS 616C.420) 11 Sections 7-9 and 11 of this bill instead require that, in the case of an injured 12 employee who is a construction worker, compensation be based on the greater of 13 – 2 – - *AB200* the employee’s average monthly wage or average monthly prevailing wage. 14 Section 5 of this bill requires the Administrator to provide by regulation for a 15 method of determining average monthly prevailing wage based, if possible, on the 16 historical number of hours worked as a construction worker by an injured 17 construction worker who is a skilled mechanic, skilled worker, semiskilled 18 mechanic, semiskilled worker or unskilled worker and the prevailing wage that is 19 applicable to public works for the region and trade in which the construction 20 worker was employed on the date of the accident or injury, regardless of whether 21 the construction worker was actually employed on a public work. 22 Existing law provides for the recalculation of the average monthly wage of an 23 injured employee under certain circumstances. (NRS 616C.427) Section 6 of this 24 bill provides for the recalculation of the average monthly prevailing wage under 25 those same circumstances. 26 Existing law: (1) provides that a claimant under the Nevada Industrial 27 Insurance Act may elect to receive payment for a permanent partial disability in a 28 lump sum under certain circumstances; and (2) with certain exceptions, provides 29 that the total lump-sum payment must not be less than one-half the product of the 30 average monthly wage multiplied by the percentage of disability. (NRS 616C.495) 31 Section 10 of this bill provides that, in the case of an injured construction worker, 32 the total lump-sum payment must not be less than one-half the product of the 33 greater of the average monthly wage or average monthly prevailing wage 34 multiplied by the percentage of disability. 35 Sections 2 and 3 of this bill define the terms “average monthly prevailing 36 wage” and “construction worker” for the purposes of the Nevada Industrial 37 Insurance Act. Section 4 of this bill makes a conforming change to indicate the 38 applicability of the definitions in sections 2 and 3. 39 THE PEOPLE OF THE STATE OF NEVADA, REPRESENTED IN SENATE AND ASSEMBLY, DO ENACT AS FOLLOWS: Section 1. Chapter 616A of NRS is hereby amended by 1 adding thereto the provisions set forth as sections 2 and 3 of this act. 2 Sec. 2. “Average monthly prevailing wage” means the 3 prevailing wage as determined in the manner provided in NRS 4 338.030, that is applicable to the region and trade in which a 5 construction worker who is a skilled mechanic, skilled worker, 6 semiskilled mechanic, semiskilled worker or unskilled worker was 7 employed on the date of the accident or injury to that construction 8 worker for an average number of hours in a month worked by that 9 construction worker, as determined pursuant to the method 10 established pursuant to section 5 of this act. 11 Sec. 3. “Construction worker” has the meaning ascribed to it 12 in NRS 618.957. 13 Sec. 4. NRS 616A.025 is hereby amended to read as follows: 14 616A.025 As used in chapters 616A to 616D, inclusive, of 15 NRS, unless the context otherwise requires, the words and terms 16 defined in NRS 616A.030 to 616A.360, inclusive, and sections 2 17 and 3 of this act have the meanings ascribed to them in those 18 sections. 19 – 3 – - *AB200* Sec. 5. Chapter 616C of NRS is hereby amended by adding 1 thereto a new section to read as follows: 2 1. The Administrator shall provide by regulation for a method 3 of determining average monthly prevailing wage. 4 2. The method established pursuant to subsection 1 must 5 provide that: 6 (a) The hourly rate applied to the average number of hours 7 worked as a construction worker in a month by an injured 8 construction worker who is a skilled mechanic, skilled worker, 9 semiskilled mechanic, semiskilled worker or unskilled worker 10 must be the prevailing wage, as determined in the manner 11 provided in NRS 338.030, that is applicable to the region and trade 12 in which that construction worker was employed on the date of the 13 accident or injury, regardless of whether the construction worker 14 was employed on a public work that is subject to chapter 338 of 15 NRS. 16 (b) Except as otherwise provided in this subsection, a history 17 of hours worked as a construction worker for a period of 12 weeks 18 must be used to calculate an average monthly prevailing wage. 19 (c) If a 12-week period of hours worked as a construction 20 worker is not representative of the average number of hours 21 worked as a construction worker in a month by the injured 22 employee, hours worked as a construction worker over a period of 23 1 year or the full period of employment, if it is less than 1 year, 24 may be used. Hours worked as a construction worker over 1 year 25 or the full period of employment, if it is less than 1 year, must be 26 used if the average monthly prevailing wage would be increased. 27 (d) If a construction worker who is injured is a member of a 28 labor organization and is regularly employed by referrals from the 29 office of that organization, hours worked as a construction worker 30 for all employers for a period of 1 year may be used. A period of 1 31 year using all the hours worked as a construction worker by the 32 injured employee from all his or her employers must be used if the 33 average monthly prevailing wage would be increased. 34 (e) If information concerning hours worked as a construction 35 worker is not available for a period of 12 weeks, hours worked as a 36 construction worker may be averaged for the available period, but 37 not for a period of less than 4 weeks. 38 (f) If information concerning hours worked as a construction 39 worker is unavailable for a period of at least 4 weeks, average 40 monthly prevailing wage must be projected using the working 41 schedule which the injured construction worker was projected to 42 work as a construction worker. 43 (g) If the methods of determining an average number of hours 44 worked as a construction worker pursuant to paragraphs (b) to (f), 45 – 4 – - *AB200* inclusive, cannot be applied reasonably and fairly, an average 1 monthly prevailing wage must be calculated by the insurer at 100 2 percent of: 3 (1) The sum which reasonably represents the average 4 monthly prevailing wage of the injured construction worker, as 5 defined in regulations adopted pursuant to this section, at the time 6 the injury or illness occurs; or 7 (2) The amount determined using the prevailing wage, as 8 determined in the manner provided in NRS 338.030, that is 9 applicable to the region and trade in which the construction 10 worker was employed on the date the injury or illness occurs, 11 regardless of whether the construction worker was employed on a 12 public work that is subject to chapter 338 of NRS, and the 13 projected working schedule which the injured construction worker 14 was projected to work as a construction worker. 15 3. In determining average monthly prevailing wage pursuant 16 to subsection 1, the method must include hours worked in 17 concurrent employment of the injured construction worker only if 18 the concurrent employment is employment by one or more 19 employers who are insured for workers’ compensation or 20 government disability benefits by: 21 (a) A private carrier; 22 (b) A plan of self-insurance; 23 (c) A workers’ compensation insurance system operating 24 under the laws of any other state or territory of the United States; 25 or 26 (d) A workers’ compensation or disability benefit plan 27 provided and administered by the Federal Government or any 28 agency thereof. 29 4. Except as otherwise provided by subsection 3, concurrent 30 employment includes, without limitation, hours worked in: 31 (a) Active or reserve duty with or in: 32 (1) The Army, Navy, Air Force, Marine Corps or Coast 33 Guard of the United States; 34 (2) The Merchant Marine; or 35 (3) The National Guard; or 36 (b) Employment by: 37 (1) The Federal Government or any branch or agency 38 thereof; 39 (2) A state, territorial, county, municipal or local 40 government of any state or territory of the United States; or 41 (3) A private employer, whether the employment is full- 42 time, part-time, temporary, periodic, seasonal or otherwise limited 43 in term, or pursuant to contract. 44 – 5 – - *AB200* 5. As used in this section, “concurrent employment” means 1 work as a construction worker performed by an employee for two 2 or more employers during the 1-year period immediately preceding 3 the date of injury or the onset of occupational disease. 4 Sec. 6. NRS 616C.427 is hereby amended to read as follows: 5 616C.427 1. Notwithstanding the provisions of subsection 3 6 of NRS 616C.315 and except as otherwise provided in this section, 7 if an injured employee is receiving compensation based on a 8 calculation of the average monthly wage or average monthly 9 prevailing wage of the injured employee as determined pursuant to 10 the regulations adopted by the Administrator pursuant to NRS 11 616C.420 [,] or section 5 of this act, as applicable, the injured 12 employee or the employer may request a hearing before a hearing 13 officer pursuant to the provisions of NRS 616C.315 to 616C.385, 14 inclusive, asking for a recalculation of the average monthly wage or, 15 if applicable, the average monthly prevailing wage of the injured 16 employee. 17 2. The injured employee is entitled to have his or her average 18 monthly wage or, if applicable, average monthly prevailing wage 19 recalculated if the injured employee proves by a preponderance of 20 the evidence that the insurer calculated the average monthly wage or 21 average monthly prevailing wage improperly or incorrectly as a 22 result of: 23 (a) The use of any improper or incorrect information or 24 methodology; 25 (b) The failure to use any proper or correct information or 26 methodology; 27 (c) Any error of law or fact; or 28 (d) Any other error, omission, neglect or wrongful act. 29 3. If the injured employee proves that the insurer calculated his 30 or her average monthly wage or, if applicable, average monthly 31 prevailing wage improperly or incorrectly, resulting in an 32 underpayment of compensation: 33 (a) The insurer shall: 34 (1) Increase the injured employee’s future compensation 35 based on the correct average monthly wage [;] or average monthly 36 prevailing wage, as applicable; and 37 (2) Pay the injured employee a lump sum in an amount equal 38 to the underpayment of compensation for the period during which 39 the insurer was using the incorrect average monthly wage [;] or 40 average monthly prevailing wage, as applicable; and 41 (b) The remedy provided in paragraph (a) is the sole remedy for 42 the underpayment and the insurer is not subject to the imposition of 43 any fine or benefit penalty therefor. 44 – 6 – - *AB200* 4. If the hearing officer determines that the calculation of the 1 average monthly wage or, if applicable, average monthly 2 prevailing wage resulted in an overpayment of compensation, the 3 insurer may require the injured employee to repay to the insurer an 4 amount equal to the overpayment received by the injured employee 5 during any one 30-day period. 6 5. The average monthly wage or average monthly prevailing 7 wage, as applicable, of an injured employee may not be challenged 8 by the insurer, the employer or the injured employee after the date 9 on which any portion of an award for permanent partial disability is 10 paid or the claim closes, whichever occurs first. 11 6. The provisions of this section do not apply if the issue of the 12 average monthly wage or, if applicable, average monthly 13 prevailing wage of the injured employee was previously adjudicated 14 to a final decision in: 15 (a) A hearing before a hearing officer or appeals officer pursuant 16 to the provisions of NRS 616C.315 to 616C.385, inclusive; or 17 (b) Any proceedings for judicial review. 18 Sec. 7. NRS 616C.440 is hereby amended to read as follows: 19 616C.440 1. Except as otherwise provided in this section and 20 NRS 616C.175, every employee in the employ of an employer, 21 within the provisions of chapters 616A to 616D, inclusive, of NRS, [Text truncated for display. Full text available on LegiScan.]