Telecheck Serv's. Inc. v. Gierer ( 2015 )

 assert an offset when agreeing to reopen part of respondent's claim in
2003.
In 2012, after denying further requests to reopen respondent's
claim, Sierra Nevada Administrators (SNA) notified respondent that it
was asserting a full offset against respondent's net recovery from the 1998
settlement and thus was ceasing any benefit payment until respondent
demonstrated that she had exhausted her net recovery amount.
Respondent administratively appealed that determination, arguing that
the 14-year delay in asserting the offset barred SNA's subrogation lien.
The appeals officer disagreed, finding that laches did not bar the lien
because the delay was not intentional, the delay did not constitute
acquiescence to waiving the lien, and respondent was not prejudiced by
the delay. The district court, however, granted respondent's petition for
judicial review and reversed the appeals officer's decision, finding that
laches did bar the lien. Appellant Telecheck Services, Inc., respondent's
employer at the time of injury and to whose account respondent's benefits
were charged, appealed the district court's order. Having considered the
parties' arguments and the appendix, we now reverse.
An appeals officer's determination regarding the application of
laches is a fact-based determination to which the court gives deference.
See Modjeski v. Fed. Bakery of Winona, Inc., 240 N.W.2d 542, 546 (Minn.
1976) (explaining that laches is primarily a factual, not legal,
determination); see also Vredenburg v. Sedgwick CMS, 124 Nev. 553, 557,
188 P.3d 1084, 1087 (2008) (explaining that the appeals officer's fact-based
decisions will not be disturbed if they are supported by substantial
evidence). SNA had the statutory right to subrogate against respondent's
settlement proceeds, and respondent's workers' compensation benefits
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"must be reduced by the amount of damages recovered" from the third-
party tortfeasor. NRS 616C.215(2)(a).
In asserting laches, assuming for the purposes of this appeal
that it applies, see Thompson v. Workers' Comp. Appeal Bd., 781 A.2d
1146, 1151-54 (Pa. 2001) (concluding that absent deliberate, bad faith
conduct by the employer, the right to subrogation is automatic and
absolute), respondent had the burden to demonstrate that she was
prejudiced by the delay. Miller v. Burk, 124 Nev. 579, 598, 188 P.3d 1112,
1125 (2008) (noting that the applicability of laches depends on the facts of
the case and explaining that the court looks at whether the delay was
inexcusable, whether the delay constitutes acquiescence to the condition
being challenged, and whether the inexcusable delay was prejudicial to
others); Muir v. C.R. Bard, Inc., 519 S.E.2d 583, 599 (S.C. Ct. App. 1999)
(noting that the person claiming laches bears the burden to show its
applicability). Here, the record does not contain any evidence that
respondent was prejudiced by the delay. Respondent's contention that she
would have kept receipts for her treatment in order to apply them against
any offset does not demonstrate prejudice because she has not shown that
she received any treatment related to her claim that was not covered by
her workers' compensation claim. Indeed, her lumbar reopening request
was granted and all others were denied as not meeting the statutory
requirements. Thus, because substantial evidence supported the appeals
officer's decision, there was no basis for the district court to make new
factual determinations and reverse the appeals officer's conclusion that
laches did not apply. See Vredenburg v. Sedgwick CMS, 124 Nev. 553, 557
& n.4, 188 P.3d 1084, 1087 & n.4 (2008) (defining substantial evidence);
see also NRS 233B.135(3) (setting forth the standard of review); Nellis
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Motors v. State, Dep't of Motor Vehicles, 124 Nev. 1263, 1269-70,197 P.3d
1061, 1066 (2008) (explaining that neither this court nor the district court
will reweigh the evidence, reassess witness credibility, or substitute our
judgment for that of the appeals officer on questions of fact). Accordingly,
the district court erred in granting respondent's petition for judicial
review, and we
ORDER the judgment of the district court REVERSED
Cf9.4 _, J.
Parraguirre
cc: Hon. Jessie Elizabeth Walsh, District Judge
Janet Trost, Settlement Judge
Lewis Brisbois Bisgaard & Smith, LLP/Las Vegas
Nevada Attorney for Injured Workers/Las Vegas
Eighth District Court Clerk
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