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Temporary Light-Duty in Nevada and Why the Fire Department Captain is Working as a Secretary

Author: Cheryl Wilson

Guest Editor: Ashley Kaye

March 1, 2021 8:19pm

No one wants an injury while working to earn a living, including the “boss.”  The boss has a certain stature within a particular work environment and, even after injury, may expect to maintain their stature during recovery.  However, under Nevada law, industrial insurance will equalize the status of an injured employee.[i]  Once an employee is able to resume light-duty work, the employer does not guarantee the same or even a similar replacement job.  “Light duty work’” does not mean “same duties” at work, and, as discussed in Vance Taylor v. Truckee Meadows Fire Protection District, a fire department captain can be required to perform as a secretary during a medical recovery.[ii]

Background

The Taylor case involved a northern Nevada fire department captain who severely injured his shoulder in a training exercise.  He filed a claim with his employer’s industrial insurance carrier for benefits.  Pursuant to Nevada statute, while an employee is temporarily totally disabled (i.e. cannot work), the employee will receive 66 and 2/3 percent of his average monthly wage.[iii]  An employer may offer temporary, light-duty employment in lieu of such temporary total disability (TTD) payments.[iv]  The TTD benefit payments “must” cease when the employer offers light-duty or modified employment.[v]

In Taylor, once the captain was stable and awaiting shoulder surgery, he accepted light-duty work as a secretary Monday through Friday from 8 a.m. to 5 p.m., where he performed data entry and filing projects.  After surgery, he received TTD payments until his physician released him to light-duty status.  When offered the same administrative position, the captain refused, arguing the duties were “humiliating and unlawful” and not substantially similar to his actual job duties.  The employer’s industrial insurance carrier terminated the captain’s TTD benefits.  On appeal to the Nevada Supreme Court, the captain argued the secretarial employment was not “substantially similar” to his highly skilled management responsibilities, and was thus beneath him.

Analysis

The Nevada Supreme Court used the Taylor case to clarify the meaning of the phrase “substantially similar” light-duty work:

Under NRS 616C.475(8), the temporary, light-duty employment offered by the employer must (1) be “substantially similar to the employee’s position at the time of his or her injury in relation to the location of the employment and the hours the employee is required to work”; (2) “[p]rovide] ] a gross wage that is . . . substantially similar to the gross wage the employee was earning at the time of his or her injury”; and (3) “[have] the same employment benefits as the position of the employee at the time of his or her injury.” NRS 616C.475(8)(a)-(c) (emphases added).  The purpose of NRS 616C.475(8) is to ensure that the employer makes a legitimate offer of employment, rather than one that imposes an unreasonable burden on the employee.[vi]

The “substantially similar” requirement relates to the location and hours of work, wages, and benefits.  It does not relate to the actual duties or daily chores.

The Nevada Supreme Court stated it was clear the two positions were substantially similar based on the work schedules, location, and wages.  The temporary position was located at a building six miles from the captain’s prior work location and closer to his home.  Preinjury, the captain worked 48 hours on and 96 hours off each week.  Conversely, the light-duty job was 40 hours each week but has the same pay as a firefighter.  If the captain had accepted the light-duty employment, based on his work history, which would include overtime, he would have been paid $10,115 a month.

The Nevada Supreme Court took time to consider the history and purpose of temporary, light-duty employment and why it makes sense “some work” is better than no work:

The statute does not require that an employee’s light-duty job have the same duties or chain of command as his or her preinjury position.  Rather, as the legislative history of the statute makes clear, NRS 616C.475(8) allows the employer to offer an injured employee work on a temporary basis “which otherwise might not qualify as an acceptable offer if it was made for permanent employment.”  . . .Thus, given this purpose and the short-term nature of the light-duty employment offer, a light-duty job that is menial or otherwise in a different capacity as the preinjury job is not unreasonable. . .  Taylor suffered from a shoulder injury and could not perform the physical requirements of a firefighter.  The administrative office position was both available and satisfied Taylor’s temporary physical limitations.  It was in no way a demotion, as Taylor claims, but rather a temporary position that he was physically capable of doing until he recovered fully from his injury and could return to his job as fire captain.[vii]

Takeaway

When an injured employee is ready to return to work on “light-duty,” the employer must offer a temporary position substantially similar to the location, wages, and benefits of the preinjury position.  However, it is not necessary the employer offer the same duties as preinjury, and it can assign the returning employee menial duties until recovery and the ability to resume full-time duties.

[i] NRS 616C.475.

[ii] Vance Taylor v. Truckee Meadows Fire Protection District, 137 Nev. Adv. Op. 1, (February 4, 2021).

[iii] NRS 616C.475(1).

[iv] NRS 616C.475(8).

[v] NRS 616C.475(5)(b).

[vi] Taylor, supra at p. 4.

[vii] Id. at p. 11-12.

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