Eicon v. Broddie ( 2013 )

 that the time limitation set forth in NRS 616C.390(5) acts as a
jurisdictional bar to the reopening of claims that fall within the statute
and does not constitute an affirmative defense that can be waived by a
party's failure to raise that defense. Moreover, this court has held that
questions of subject matter jurisdiction, such as the one presented here,
may be raised by the parties at any time or by a reviewing court sua
sponte. See Landreth v. Malik, 127 Nev. „ 251 P.3d 163, 166
(2011). Accordingly, the fact that EICON raises this jurisdictional
argument for the first time on appeal does not bar its consideration by this
court.
Turning to the situation presented by this case, NRS
616C.390(5) establishes a one-year time limit on the reopening of a
workers' compensation claim if the claimant was not off work as a result of
her industrial injury and did not receive a permanent partial disability
award. The appeals officer, however, did not determine whether Broddie
was off work as a result of her industrial injury or whether she received a
permanent partial disability award so as to preclude the application of
NRS 616C.390(5). Because, in the context of a workers' compensation
matter, this court will not make such factual determinations in the first
instance, see Roberts v. State Indus. Ins. Sys., 114 Nev. 364, 367, 956 P.2d
790, 791-92 (1998) (stating that this court reviews an appeals officer's
determinations on issues of law de novo, but gives deference to the appeals
officer's factual findings when supported by substantial evidence), we
reverse the district court's order denying judicial review and direct the
district court to remand the matter to the appeals officer to determine
whether Broddie's claim reopening fell within the parameters of NRS
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616C.390(5) so as to be jurisdictionally barred by her failure to seek
reopening within one year of her claim's closure.
It is so ORDERED.
Douglas
J.
Saitta
cc: Hon. Jessie Elizabeth Walsh, District Judge
William C. Turner, Settlement Judge
Lewis Brisbois Bisgaard & Smith, LLP/Las Vegas
Nevada Attorney for Injured Workers/Las Vegas
Eighth District Court Clerk
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