Elizondo v. Hood Mach., Inc., 129 Nev. Adv. Op. 84 (Nov. 7, 2013)

Before Justices Hardesty, Parraguirre, and Cherry. Opinion by Justice Hardesty.
In this appeal, the Court considered whether an appeals officer’s conclusory order in a workers’ compensation matter failed to meet the statutory requirements of NRS 233B.125 by not including findings of fact and conclusions of law. NRS 233B.125 governs adverse written orders in administrative proceedings and states that “a final decision must include findings of facts and conclusions of law, separately stated.” The Court concluded that the appeals officer’s order was deficient by omitting specific findings of fact or citation to the law as required by the plain and unambiguous language of NRS 233B.125. The Court also analyzed whether the doctrines of claim and issue preclusion compelled dismissal of Appellant’s fourth attempt to reopen an industrial injury claim. NRS 616C.390 provided Appellant with a statutory right to request the reopening of his claim and upon written application, the insurer was required to reopen a claim based on a change of circumstances. The Court concluded that the appeals officer erred by applying the doctrines of issue and claim preclusion because the proper analysis is whether there is a change of circumstances. Accordingly, the district court’s rejection of the request to reopen Elizondo’s claim on preclusion grounds was in error. Reversed and remanded. (Lisa M. Wiltshire Alstead, Associate in the Reno office of McDonald Carano Wilson LLP.)

Williams v. United Parcel Servs., 129 Nev. Adv. Op. 41 (June 6, 2013)

Before Justices Gibbons, Douglas, and Saitta. Opinion by Justice Saitta.
In this appeal from a district court order denying a petition for judicial review in a workers’ compensation action, the Court examined the meaning of “off work” under NRS 616C.390(5). Under NRS 616C.390(5), a claimant either has to be “off work” or has to receive a “permanent partial disability award” to reopen a claim more than one year after the closing date of the claim. Appellant sustained workplace injuries when he fell from a ladder and Appellant’s physician did not clear Appellant to return to work until two days later. Appellant filed a worker’s compensation claim with his employer and received an award that was not a “permanent partial disability award.” After experiencing subsequent back pain, appellant sought to reopen his claim two years after the claim closed. An appeals officer refused to reopen Appellant’s claim because the appeals officer determined that Appellant was never “off work” under NRS 616C.390(5). The appeals officer interpreted “off work” to mean that an employee has to miss at least five days of work as the result of a work injury. The Court first held that failing to apply to reopen a claim within the limitations period set forth in NRS 616C.390(5) acts as a jurisdictional bar to reopening the claim. The Court then held that an employee does not have to miss a certain minimum amount of time from work to be “off work” under NRS 616C.390(5) - an employee only has to lose time from work as the result of a work injury to be “off work” under the statute. Reversed and remanded. (Chris Stanko, Summer Clerk in the Reno office of McDonald Carano Wilson.)

City of Las Vegas v. Evans, 129 Nev. Adv. Op. 31 (May 2, 2013)

Before Justices Gibbons, Douglas, and Saitta. Opinion by Justice Saitta.
In this appeal from a denial of a petition for judicial review in a workers’ compensation matter, the Court considered two issues: (1) whether a firefighter could still seek workers’ compensation benefits without obtaining the benefit of a specific rebuttable presumption provided by NRS 617.453; and (2) whether substantial evidence supported an appeals officer’s decision that a firefighter’s cancer was a compensable occupational disease. NRS 617.440 outlines the requirements for proving a compensable occupational disease and NRS 617.358(1) requires that an employee prove “by a preponderance of the evidence that the employee’s occupational disease arose out of and in the scope of his or her employment.” These two provisions, however, do not apply to claims filed under NRS 617.453, which establishes a conditional rebuttable presumption that a firefighter’s cancer arose out of his or her employment if he or she has been employed as a firefighter full-time for five or more years. The Court analyzed the relationship between these statutes and concluded that when a workers' compensation claimant fails to meet a condition necessary to receive the benefit of the presumption set forth in NRS 617.453, this results in only the loss of the presumption and does not preclude the claimant from obtaining compensation under the more general statutory requirements. In this case, the employee had only been employed as a full-time firefighter for four years. Even though he was not entitled to the rebuttable presumption of NRS 617.453, he could still obtain compensation by demonstrating the disease arose out of and in the scope of his employment. The court further held that substantial evidence supported the appeals officer’s conclusion that the employee’s cancer was a compensable occupational disease. Affirmed. (Seth T. Floyd, Associate in the Las Vegas office of McDonald Carano Wilson).

Sierra Nevada Adm’rs v. Negriev, 128 Nev. Adv. Op. 45 (Sept. 13, 2012)

Before the Court En Banc. Opinion by Justice Gibbons.
In this appeal, the Court concluded that Nevada’s workers’ compensation laws require an average monthly wage calculation to include untaxed tip income if an injured employee had reported that tip income to the employer. Respondent worked as a bartender and was paid an hourly wage in addition to tip income, which Respondent regularly reported to the employer. Neither Respondent nor Employer paid taxes on the tip income or reported it to the IRS. Respondent then sustained a compensable back injury at work and received workers’ compensation benefits and a permanent partial disability award. The average monthly wage calculation used to determine his benefits, however, did not include Respondent’s untaxed tip earnings. The Court held that a plain reading of NRS 616B.227 requires the inclusion of any tips that were reported by the employee. The Court rejected Appellant’s argument that the inclusion of the reported but untaxed tips would result in a windfall for Respondent; holding instead that Respondent’s tax liability is a separate matter between the employee and the federal government. Affirmed. (Adam Hosmer-Henner, Associate in the Reno office of McDonald Carano Wilson LLP).

Tri-County Equipment & Leasing v. Klinke, 128 Nev. Adv. Op. 33 (June 28, 2012)

Before the Court En Banc. Opinion by Justice Hardesty.
In this appeal, the Court considered whether the collateral source rule operated to exclude evidence of California workers' compensation payments received by a California employee involved in an accident in Nevada. Reversing and remanding, the Court determined that evidence of the actual amount of workers' compensation benefits paid should have been admitted to the jury pursuant to NRS 616C.215, which permits the admission of such evidence in limited circumstances. Although NRS 616C.215 permits the admission of evidence regarding workers' compensation payments to a jury in certain circumstances provided that a clarifying jury instruction is given, the district court granted a motion in limine finding that the statute did not apply because the respondent received her worker's compensation pursuant to California's workers' compensation scheme and not Nevada's workers’ compensation scheme. Reversing, the Court held that the district court's narrow reading of NRS 616C.215 as applying to only Nevada workers' compensation benefits would defeat the statute's purpose of avoiding confusion to the jury about the payment and nature of workers' compensation benefits in cases in which those benefits have been paid under another state's laws. The Court found no logical reason to treat benefits received pursuant to another state's workers' compensation scheme any differently than benefits received from a Nevada employer. Therefore, in a trial governed by Nevada law, the workers' compensation payments made to an injured employee must be admitted as evidence and the proper instruction regarding the jury's consideration of those payments must be given. Additionally, although the Court specifically ordered briefing to determine whether a reduction in the cost of medical services based on a relationship with an insurance company, a medical “write-down”, was a benefit for which evidence would be barred by the collateral source rule, the majority held that because NRS 616C.215 specifically allows evidence of the benefits actually paid they did not need to address the issue of medical write-downs generally. Justice Gibbons, in a concurring opinion with which Justice Cherry joined, would reach the issue and hold that the collateral source rule bars evidence of medical write-downs. Reversed and Remanded. (Amanda C. Yen, Associate in the Las Vegas office of McDonald Carano Wilson LLP).

Holiday Retirement Corp. v. State, DIR, 128 Nev. Adv. Op. 13 (April 5, 2012)

Before Justices Douglas, Hardesty, and Parraguirre. Opinion by Justice Douglas.
In an appeal from a district court order denying a petition for judicial review in a worker’s compensation action, the Court considered whether an employer is required to acquire knowledge of any employee’s permanent physical impairment before a subsequent injury in order to qualify for reimbursement from the subsequent injury account for private carriers under NRS 616B.587(4). NRS 616B.587 provides for reimbursement when an employee sustains an injury entitling him or her to compensation for disability that is substantially greater due to the combined effects of a preexisting impairment and the subsequent injury than that which would have resulted from the subsequent injury alone, provided certain conditions are met. The condition at issue in this case was whether the insurer could establish by written records that the Appellant/employer had knowledge of the permanent physical impairment at the time the employee was hired, or that the employee was retained in that employment after learning of the of the impairment. Appellant/employer hired an employee who had a workplace injury in 2003. It was later determined that the employee had a previous permanent physical impairment that occurred more than a decade earlier. DIR denied the request for reimbursement because Appellant did not learn of the earlier injury until after the day after the 2003 injury, and there was no indication that it provided a permanent modified duty or permanent full duty position to the employee. An appeals officer affirmed DIR’s denial on an alternative basis. Ultimately, the Court determined that the language of NRS 616B.587(4) was plain and unambiguous, and consistent with the majority in other jurisdictions having a knowledge requirement, held that an employer must acquire knowledge of an employee's permanent physical impairment before the subsequent injury occurs to qualify for reimbursement from the subsequent injury account for private carriers under NRS 616B.587(4). The Court affirmed the district court’s order denying a petition for judicial review. (Kristen T. Gallagher, Associate in the Las Vegas office of McDonald Carano Wilson).