Nevada Law Offers Little Flexibility for Late TTD Payments

Frank Ferreri

Las Vegas, NV ( – A string of four late payments of temporary total disability benefits to a former waitress left Treasure Island Hotel and Casino doubling down on arguments for why the tardy payments were timely under state law.

However, Treasure Island learned that Nevada law doesn’t have much wiggle room for delays. Agreeing with a lower court, the Nevada Court of Appeals found in Treasure Island Hotel/Casino vs. Voorhees, No. 78009-COA (Nev. Ct. App. 05/20/20), that “substantial evidence” supported the waitress’s case and showed a pattern of late payments.

The waitress slipped and fell on a wet floor during her shift, injuring her ankles, knees and elbows. She submitted a worker’s compensation claim, which was handled through Treasure Island’s third-party administrator. The waitress was released to work with light-duty restrictions, but Treasure Island couldn’t accommodate them. As a result, the TPA awarded her TTD benefits.

A year later, the waitress filed an administrative complaint alleging that the TPA was issuing the payments late. Nevada’s Division of Industrial Relations found that the TPA had made four late payments that consisted of a pattern of untimely payments in violation of state law. An appeals officer upheld the division’s findings, so Treasure Island appealed to court. The lower court upheld the appeals officer’s decision, prompting Treasure Island to seek review from the appeals court.

Under Nevada law, TTD payments must issue within 14 working days after receipt of the initial certificate of disability and regularly thereafter. Employers may face administrative fines and benefit penalties when they have “engaged in a pattern of untimely payments to injured employees,” with the administrative process and courts determining what constitutes a “pattern.”

In this case, the court examined the circumstances around each alleged late payment to determine whether a pattern of untimely payments existed, as follows.

First Late Payment

The first payment was scheduled to be made by Dec. 4, 2014, because state law requires that the first TTD payment must be issued within 14 working days after the receipt of the initial certification of disability. In this case, that occurred on Nov. 10, 2014. Treasure Island countered that the clock should not have started ticking that early because as late as Nov. 12, 2014, the waitress was working in a modified duty capacity.

This argument came up short because the appeals officer used the Nov. 12 date to get the Dec. 4 deadline and Treasure Island’s first payment didn’t issue until Dec. 8. Thus, the court explained the payment would still have been late with Treasure Island’s proposed start date.

Second Late Payment

Treasure Island and the TPA conceded the lateness of the second late payment but defended on the grounds that a technical issue beyond their control caused the problem. The court explained that in considering whether an employer engaged in a pattern of late payments, Nevada law doesn’t provide for consideration of whether the late payment is reasonable.

“[A]ll that matters when applying this statute is that the payment is late,” the court wrote. “[Treasure Island and the TPA’s] argument that their delay in making this payment was reasonable under the circumstances is not applicable to determining whether to uphold the violation as charged.”

Third Late Payment

Arguing that the payments were delayed due to a transfer of care request from the waitress, Treasure Island and the TPA asserted that they needed a new certificate of disability before they could make the payment. The court explained that Treasure Island and the TPA misinterpreted Nevada law.

“The statute says nothing about requiring a new certificate of disability after transferring care,” the court reasoned. “In fact, the statute’s plain language indicates that payment will continue regularly … after submission of an initial certificate of disability.”

Although the waitress changed doctors, she did not need a new certificate of disability. The waitress’s restrictions were the same, and the TPA failed to follow its own payment schedule. Thus, the court upheld the appeals officer’s finding of lateness on the payment.

Fourth Late Payment

Following another transfer of care for the waitress, Treasure Island and the TPA argued that they couldn’t make this payment because they didn’t have notice of ongoing restrictions from the doctor. This argument failed for reasons similar to those for the third late payment.

“[Treasure Island and the TPA] do not demonstrate why the light duty restrictions [the waitress’s] previous doctor set in place … were no longer sufficient,” the court wrote, reinforcing the point that Nevada law does not require a new certificate of disability whenever an employee transfers care and restrictions are ongoing.

A Pattern

Treasure Island and the TPA also argued that even if the payments were late, each one should be treated separately and not viewed as a pattern. The court explained that the Division of Industrial Relations considered “every factor” under state law for determining whether a pattern of untimely payments existed. Ultimately, the division reached the conclusion, which was upheld by the appeals officer and the lower court, that four late TTD payments in a one-year period to a single employee constituted a pattern under Nevada law.

The court agreed and affirmed the ruling in the waitress’s favor.

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