City of Reno v. Bd. of Admin. ( 2014 )

 controlling statutory language and relevant caselaw, we conclude that the
Board abused its discretion in determining the timeliness of Reno's notice
when the Board failed to apply the correct legal standard that governs the
inquiry for what is the date of injury for an occupational disease under a
statute that concerns a disability by injury. See NRS 233B.135(3)
(providing that a reviewing court determines whether an agency decision
violated statutory provisions or was arbitrary or capricious); Vredenburg
ex rel. Vredenburg v. Sedgwick CMS, 124 Nev. 553, 557, 188 P.3d 1084,
1087 (2008) (stating that an agency's conclusions of law that are closely
related to its view of the facts will not be set aside if supported by
substantial evidence); In re Halverson, 123 Nev. 493, 510, 169 P.3d 1161,
1173 (2007) (stating that it is an abuse of discretion to apply the wrong
legal standard); Washoe Med. Ctr. v. Second Judicial Dist. Court, 122 Nev.
1298, 1302, 148 P.3d 790, 792 (2006) (indicating that de novo review
applies to statutory interpretation issues); United Exposition Serv. Co. v.
State Indus. Ins. Sys., 109 Nev. 421, 423, 851 P.2d 423, 424 (1993) (stating
that "Mills court's role in reviewing an administrative decision is identical
to that of the district court").
At the relevant time, NRS 616B.557(1) permitted a self-
insured employer to make an SIA claim when its employee
has a permanent physical impairment from any
cause or origin and incurs a subsequent disability
by injury arising out of and in the course of his
employment which entitles him to compensation
for disability that is substantially greater by
reason of the combined effects of the preexisting
impairment and the subsequent injury than that
which would have resulted from the subsequent
injury alone. . . .
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NRS 616B.557(1) (2005) (emphases added). The employer's ability to
recover on an SIA claim was conditioned on the employer effectuating a
notice "of any possible [SIA] claim . . . as soon as practicable, but not later
than 100 weeks after the injury." NRS 616B.557(5) (2005) (emphasis
added). The plain meaning of the 100-week language set forth the
ultimate time limitation for the notice. See Cromer v. Wilson, 126 Nev.
106, 109, 225 P.3d 788, 790 (2010) (providing that unambiguous statutes
are interpreted based on their plain meaning); see also Idaho Watersheds
Project v. Hahn, 187 F.3d 1035, 1036-37 (9th Cir. 1999) (treating the time
limitation that follows an "as-soon-as-practicable-but-not-later-than
phrase" as the decisive time limitation); Arel v. T & L Enters., Inc., 189
P.3d 1149, 1152-53 (Idaho 2008) (same); Luckenbill v. Indus. Comm'n, 507
N.E.2d 1185, 1190 (Ill. App. Ct. 1987) (same).
Here, the Board determined that the degenerative joint
disease of Reno's employee was the subsequent occupational injury upon
which NRS 616B.557(1) conditions an SIA claim. Accordingly, the Board
endeavored to establish the disease's injury date in order to resolve
whether Reno accomplished its notice within "100 weeks after the injury."
NRS 616B.557(5) (2005) (emphasis added). But in so doing, the Board
erroneously focused on "the date of [the disease's] onset" for the injury
date and, as a result, concluded that July 1, 2002, was the date of injury
because the disease "was manifest" and "evident" by that time.
The district court's focus on the onset and discovery of the
disease was misplaced in this matter that concerns the injury date for an
occupational disease as it relates to a statute that concerned a
"subsequent disability by injury." NRS 616B.557(1) (2005). Under similar
circumstances, the court in Mirage Casino-Hotel v. Nevada Department of
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Administration ascertained the injury date for an occupational disease
with respect to a statute and regulation that concerned the injury date for
disability benefits. 110 Nev. 257, 259-60, 871 P.2d 317, 318-19 (1994).
The Mirage court recognized that disablement for the purposes of an
occupational disease is statutorily defined as 'the event of becoming
physically incapacitated by reason of an occupational disease arising out of
and in the course of employment. . . ." Id. at 260, 871 P.2d at 319
(quoting NRS 617.060). It held that the injury date for calculating
disability benefits for an occupational disease was not when an employee
merely "suffered" from the disease, but it was when an employee was "no
longer able to work" because the disease disabled the employee. Id.
Accordingly, it concluded that the injury date for an occupational disease
was when the disease caused the employee to be "disabled; i.e., unable to
continue working." Id.
Similar to Mirage, this matter concerns a statute that affords
relief based on a disability by an occupational injury. See NRS
616B.557(1) (2005). When the Board applied NRS 616B.557 to the
degenerative joint disease, it erroneously focused on the onset of the
disease and when it became manifest or evident. Pursuant to Mirage, the
Board needed to focus on when the disease caused the employee to be
"disabled; i.e., unable to continue working." Mirage, 110 Nev. at 260, 871
P.2d at 319.
As to Reno's contention that a new injury date was generated
when its employee continued his employment and continuously
aggravated his knee condition as a result, its argument is insufficiently
developed. Reno premises this contention on the fact that• the Board
considered this theory to be viable and on the assertion that NRS
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616B.557(5) must be construed in its favor because it is ambiguous. We,
however, do not find the statute to be ambiguous. And because Reno fails
to offer this court pertinent legal authority or analysis to support its
theory that continuous employment generated a new injury date under
NRS 616B.557(5), we do not address the argument. See Edwards v.
Emperor's Garden Rest., 122 Nev. 317, 330 n.38, 130 P.3d 1280, 1288 n.38
(2006) (explaining that this court need not consider claims that are not
cogently argued or supported by relevant authority). Nevertheless, Reno
correctly asserts that the district court abused its discretion. As the
parties do on appeal, the Board below failed to consider the relevant
authority, Mirage, for its inquiry and determination about the injury date.
Accordingly, the Board must revisit its inquiry about the
timeliness of Reno's notice. After exploring the remaining contentions on
appeal—none of which acknowledge Mirage—and concluding that they
lack merit, we
ORDER the judgment of the district court REVERSED AND
REMAND this matter to the district court for proceedings consistent with
this order.
J.
Pickering
(Th
a.. , J
Parraguirre
7Th
J.
Saitta
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cc: Hon. Brent T. Adams, District Judge
Second Judicial District Court Dept. 9
Jonathan L. Andrews, Settlement Judge
McDonald Carano Wilson LLP/Reno
McDonald Carano Wilson LLP/Las Vegas
Dept of Business and Industry/Div of Industrial Relations/Carson
City
The Law Offices of Charles R. Zeh, Esq.
Washoe District Court Clerk
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