Before Saitta, Hardesty and Parraguirre. Opinion by Hardesty.
In this appeal affirming a district court’s order granting an employee’s petition for judicial review, the Nevada Supreme Court considered the proper method of calculating workers’ compensation benefits for an employee who was promoted but was injured before receiving the wage increase associated with the promotion. The hearing officer initially determined the employee’s wages should be calculated using the wage with the promotion; however, an appeals officer reversed, concluding that, based on administrative regulations (NAC 616.435), the wage had to be based on her earnings at the time of the injury. The employee petitioned for judicial review by the district court; the district court reversed the appeal officer’s ruling and the city/employer appealed. The Court upheld the district court’s decision that the employee was entitled to compensation based on her position as of the date of the injury, despite the fact that her promotion was still being processed on the date of the underlying injury. The Court reviewed NAC 616C.435 and NAC 616C.444 in making its determination. Typically, an employee’s workers’ compensation benefits are calculated by averaging a 12-week history of past earnings. See NAC 616C.435(1). If a 12-week history is not available, the average monthly wage can be calculated by using a 4-week history, pursuant to NAC 616C.435(4). However, if the methods set forth in NAC 616C.435 cannot be applied reasonably and fairly, the average monthly wage must be calculated in a manner that reasonably represents the average monthly wage. See NAC 616C.435(7)(a). The Court determined that the calculations set forth in NAC 616C.435(1) and (4) did not “reasonably and fairly” determine the amount of the employee’s workers’ compensation benefits, instead finding that NAC 616C.444(1) set forth a more specific method for calculating a worker’s wage in the circumstances presented. NAC 616C.444 requires that the average monthly wage must be calculated such that the primary job at the time of the accident must be used in the calculation. The Court noted that a specific statute or administrative regulation controls over a general statute on the same issue and the provisions of NAC 616C.435(7) and NAC 616C.444 were plain and unambiguous. The Court ultimately determined that there was ample evidence in the record to demonstrate that the employee’s primary job was that of the promoted position and upheld the district court’s order, and affirmed the hearing officer’s decision. (By Kristen Gallagher, Associate in the Las Vegas office of McDonald Carano Wilson)
