NRS616C.427. Challenge to determination of average monthly wage; remedy for incorrect average monthly wage.

      1.  Notwithstanding the provisions of subsection 3 of NRS 616C.315 and except as otherwise provided in this section, if an injured employee is receiving compensation based on a calculation of the average monthly wage of the injured employee as determined pursuant to the regulations adopted by the Administrator pursuant to NRS 616C.420, the injured employee or the employer may request a hearing before a hearing officer pursuant to the provisions of NRS 616C.315 to 616C.385, inclusive, asking for a recalculation of the average monthly wage of the injured employee.

      2.  The injured employee is entitled to have his or her average monthly wage recalculated if the injured employee proves by a preponderance of the evidence that the insurer calculated the average monthly wage improperly or incorrectly as a result of:

      (a) The use of any improper or incorrect information or methodology;

      (b) The failure to use any proper or correct information or methodology;

      (c) Any error of law or fact; or

      (d) Any other error, omission, neglect or wrongful act.

      3.  If the injured employee proves that the insurer calculated his or her average monthly wage improperly or incorrectly, resulting in an underpayment of compensation:

      (a) The insurer shall:

             (1) Increase the injured employee’s future compensation based on the correct average monthly wage; and

             (2) Pay the injured employee a lump sum in an amount equal to the underpayment of compensation for the period during which the insurer was using the incorrect average monthly wage; and

      (b) The remedy provided in paragraph (a) is the sole remedy for the underpayment and the insurer is not subject to the imposition of any fine or benefit penalty therefor.

      4.  If the hearing officer determines that the calculation of the average monthly wage resulted in an overpayment of compensation, the insurer may require the injured employee to repay to the insurer an amount equal to the overpayment received by the injured employee during any one 30-day period.

      5.  The average monthly wage of an injured employee may not be challenged by the insurer, the employer or the injured employee after the date on which any portion of an award for permanent partial disability is paid or the claim closes, whichever occurs first.

      6.  The provisions of this section do not apply if the issue of the average monthly wage of the injured employee was previously adjudicated to a final decision in:

      (a) A hearing before a hearing officer or appeals officer pursuant to the provisions of NRS 616C.315 to 616C.385, inclusive; or

      (b) Any proceedings for judicial review.

      (Added to NRS by 2007, 3342)