Anderson v. State, Emp't Sec. Div. , 2014 NV 32 ( 2014 )

130 Nev., Advance Opinion 32
IN THE SUPREME COURT OF THE STATE OF NEVADA
RICKY D. ANDERSON, No. 59152
Appellant,
vs.
THE STATE OF NEVADA
EMPLOYMENT SECURITY DIVISION;
FILED
CYNTHIA A. JONES, IN HER MAY 1 5 2014
CAPACITY AS ADMINISTRATOR OF AUE K. LINDEMAN
THE EMPLOYMENT SECURITY
BY
DIVISION; AND KATIE JOHNSON, IN CHIEF DEP)G-IY CLE
HER CAPACITY AS CHAIRPERSON OF
THE EMPLOYMENT SECURITY
DIVISION BOARD OF REVIEW,
Respondents.
Appeal from a district court order denying a petition for
judicial review in an unemployment benefits matter. Eighth Judicial
District Court, Clark County; Elissa F. Cadish, Judge.
Reversed and remanded.
Nevada Legal Services and David A. Olshan and Heather Anderson-
Fintak, Las Vegas,
for Appellant.
J. Thomas Susich, Senior Legal Counsel, Employment Security Division,
Sparks,
for Respondents.
BEFORE THE COURT EN BANC.
OPINION
By the Court, PICKERING, J.:
NRS 612.344 allows an individual who cannot find work after
a period of temporary disability the option of using his work history for the
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15 months preceding his disability leave to determine his unemployment
compensation instead of, as is the norm, the 15 months preceding his
application for unemployment compensation. To qualify for this option,
the application must be filed "within 3 years after the initial period of
disability begins and not later than the fourth calendar week of
unemployment after.... [t]he end of the period of temporary total
disability or temporary partial disability [or the] date the person ceases to
receive money for rehabilitative services, whichever occurs later." NRS
612.344(2). On this appeal, we consider what the phrase "within 3 years
after the initial period of disability begins" means for the worker with a
recurring or degenerative condition. We hold that it refers to the first in
the series of potentially available benefits enumerated in NRS
612.344(2)—temporary total disability, temporary partial disability,
and/or vocational rehabilitation—for each episode of compensated
disability leave. Thus, the alternative-calculation option in NRS 612.344
renews when a temporarily disabled worker recovers and returns to work
long enough to reestablish himself in the unemployment compensation
system.
I.
A.
Unemployment compensation depends on wages and work
history during a claimant's "base period." NRS 612.340; NRS 612.375. In
general, "base period" is defined as "the first 4 of the last 5 completed
calendar quarters [i.e., 15 months] immediately preceding the first day of
a person's benefit year," NRS 612.025, which begins the "first day of the
week ... a valid claim is filed" and continues for the succeeding 52 weeks.
NRS 612.030. To qualify for unemployment compensation in any given
week, the claimant must have earned wages "within his or her base
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612.375(1). A person is not "unemployed" who is receiving temporary
disability or similar benefits as workers' compensation or for vocational
rehabilitation:
No person shall be deemed to be unemployed in
any week in which the person:
(b) Receives benefits for a temporary total
disability or a temporary partial disability
pursuant to chapters 616A to 616D, inclusive, or
617 of NRS; or
(c) Receives money for rehabilitative services
pursuant to chapters 616A to 616D, inclusive, or
617 of NRS.
NRS 612.185(3); see also NRS 612.190(3)(a)(2) ("Wages" does not include
an employing unit's payments for "[s]ickness or accident disability.").
These statutes coordinate the workers' compensation and
unemployment compensation systems so as to avoid duplication of wage-
loss benefits. CI 9 Lex K. Larson, Larson's Workers' Compensation Law §§
157.01-157.02 (2013) (arguing that "all wage loss devices should be part of
an overall system" and lamenting "the jerry-built character of American
social legislation [that] has resulted at many points in failure to anticipate
and provide for appropriate coordination"). But they create an "inequity in
the law" for the "person with a recognized attachment to the labor force
who is injured on the job and receives workman's compensation. . . and is
then released to return to work and [finds] no work is available [yet] is
disqualified" from unemployment compensation by his lack of base-period
wages. Hearing on S.B. 3 Before the Assembly Comm. on Labor & Mgmt.,
66th Leg. (Nev., March 14, 1991) (testimony of Stan Jones, then Director
of the Nevada Employment Security Department).
NRS 612.344 addresses this inequity. It creates an
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alternative base period for the person who was not "unemployed" because
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receiving workers' compensation or other benefits enumerated in NRS
612.185(3). Such a person "may elect" to have his unemployment
compensation determined with reference to his wages for the 15 months
preceding his disability leave instead of the 15 months before applying for
unemployment compensation.
A person who has received:
(a) Benefits for a temporary total disability
or a temporary partial disability pursuant to
chapters 616A to 616D, inclusive, or 617 of NRS;
(b) Money for rehabilitative services
pursuant to chapters 616A to 616D, inclusive, or
617 of NRS; or
(c) Compensation pursuant to any similar
federal law,
may elect a base period consisting of the first 4 of
the last 5 completed calendar quarters
immediately preceding the first day of the
calendar week in which the disability began.
NRS 612.344(1). The alternative-calculation option does not extend to
periods of sustained disability lasting longer than 3 years:
An elected base period may be established only if
the person files a claim for benefits within 3 years
after the initial period of disability begins and not
later than the fourth calendar week of
unemployment after:
(a) The end of the period of temporary total
disability or temporary partial disability; or
(b) The date the person ceases to receive
money for rehabilitative services,
whichever occurs later.
NRS 612.344(2).
We must decide how, if at all, NRS 612.344 applies to a
recurring or degenerative medical condition. The Employment Security
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Division (ESD) reads NRS 612.344 as limited to the 3 years following the
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original, disabling injury. So, if a worker injures his knee, receives
temporary total disability benefits for 2 years, is rehabilitated, returns to
work for 20 years, then reinjures his knee and is off work on temporary
disability for 15 months, and cannot find work when he is medically
cleared to return, he may not receive unemployment compensation despite
his 20-year work history. We reject this interpretation as unreasonable
and hold instead that the NRS 612.344 option renews when an injured
worker rejoins the work force and works long enough to establish a fresh
base period.
B.
In 2004, appellant Ricky Anderson injured his C-5 and C-6
vertebrae at work. The injury was debilitating, and Anderson received
workers' compensation benefits for temporary total disability. Following
surgery, Anderson returned to work as a construction company foreman.
He held this job for more than two years, from March 2006 until October
2008. Anderson's back problems recurred, and he again received
temporary total disability benefits, from November 2008 until June 2010.
After more surgery, Anderson was medically released to return to work.
But Anderson could not find a job, so he filed for unemployment
compensation.
The ESD denied Anderson's claim. It determined that he did
not qualify for unemployment compensation, calculated conventionally,
because he had not earned wages in the first four of the last five calendar
quarters preceding his application. And since Anderson received disability
benefits for his back injury starting in July 2004, it held that he could not
use NRS 612.344's alternative-calculation option, as the statute's three-
year window closed in 2007.
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71A
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Anderson went through a series of administrative appeals,
then petitioned for judicial review, to no avail. This appeal followed.
A.
We defer to the ESD's findings of fact but our review is de
novo as to questions of law. Clark Cnty. Sch. Dist. v. Bundley, 122 Nev.
1440, 1445, 148 P.3d 750, 754 (2006). The ESD argues that the issue in
this case is factual—did Anderson's 2004 injury to his C-5 and C-6
vertebrae underlie his temporary total disability in 2004-2006 and 2008-
2010? But Anderson accepts (and so do we) the ESD's finding that his
2004 injury led to both disability leaves. Anderson's point is that by
working full-time from 2006 to 2008, he restored his eligibility to elect the
optional base period under NRS 612.344. This is a legal question calling
for statutory interpretation, not fact-finding, making our review de novo.
B.
To the ESD, NRS 612.344 has an obvious plain meaning: If
the same original injury leads to two extended periods of temporary
disability, the NRS 612.344(1) option only applies to the first. The ESD
culls this meaning from NRS 612.344(2)'s use of the word "initial" in
providing, "An elected base period may be established only if the person
files a claim for benefits within 3 years after the initial period of disability
begins. . ." (Emphasis added.) "If the Legislature meant that one could
elect an alternative base period within three years after any work
stoppage resulting from an earlier injury," the ESD argues, "it would have
stated that. Instead, the Legislature specifically limits eligibility for
election of the alternative base period to three (3) years from the date that
the INITIAL disability begins." (Capitalization ESD's.) The ESD
maintains that we must read "initial" out of the statute for Anderson to
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But the ESD reads "period of' out of the statute. It has
"initial" modifying "disability," then equates "disability" with "injury."
This explains the ESD's position that the dispute here is factual:
Anderson's "initial" injury occurred in 2004, so according to the ESD, his
optional NRS 612.344 election expired 3 years later for anything causally
connected to that "initial" injury. But if two distinct on-the-job injuries
had befallen Anderson—say a skull fracture from a fall, then two years
later, third-degree burns from a warehouse fire—and they led to the same
disability leave/work history that his back injury did, apparently the ESD
would permit him to use NRS 612.344 because the "disabilit[ies]"—read
injuries—are distinct.
The logic of the ESD's position is hard to follow. If its goal is
to sustain its denial of benefits to Anderson, it would be better off to accept
that "initial" modifies "period of disability" and then treat the NRS
612.344 option as a one-time opportunity. This would mean that a worker
has only 3 years after his first or "initial" period of disability to use NRS
612.344; after that, the option would expire, regardless of what disabilities
followed or how long he worked between them. But consistent with the
rule that our "unemployment statutes should be liberally construed in
order to advance the protective purposes of Nevada's unemployment
compensation system of providing temporary assistance and economic
security to individuals who become involuntarily unemployed," State Dep't
of Emp't, Training & Rehab. v. Reliable Health Care Servs. of S. Nev., Inc.,
115 Nev. 253, 257, 983 13.2d 414, 417 (1999), the ESD does not go that far.
It argues only that NRS 612.344 is off-limits where, as in Anderson's case,
the same original injury leads to multiple periods of disability leave.
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C.
"[Pleriod of disability" is not defined in Chapter 612 or
elsewhere in the NRS. However, it is used in Nevada's workers'
compensation statutes, NRS Chapter 616C, to distinguish between
"temporary total disability" and "temporary partial disability," on the one
hand, and "permanent partial disability," on the other hand. NRS
616C.405 (stating that a person may not receive permanent partial
disability compensation "during [a] period of temporary total disability"
and that a person may not receive a permanent partial disability award
"during [a] period of temporary partial disability"); see NRS 616C.400
(equating duration of incapacity to "period"); NRS 616C.475(1) & (3)
(explaining how benefits "for the period of temporary total disability" are
calculated and what their start date is when "a claim for [a] period of
temporary total disability is allowed"); NRS 616C.475(7) (requiring a
physician's or chiropractor's certification of disability to "Wriclude the
period of disability"); NRS 616C.500(1) (stating the formula for calculating
temporary partial disability benefits and providing that they may only last
"for a period not to exceed 24 months during the period of disability"). Cf
DiPasquale v. Bd. of Review, 669 A.2d 275, 278 (N.J. Super. Ct. App. Div.
1996) (it is appropriate to construe the workers' compensation and
unemployment compensation statutes harmoniously since they are "inter-
related statutes designed to effect an 'employee welfare plan for
alleviation of wage loss' (quoting Seatrain Lines, Inc. v. Medina, 188 A.2d
169, 172 (N.J. 1963))).
NRS 612.344 uses "period of disability" much as NRS Chapter
616C uses the phrase. Thus, NRS 612.344(1) describes the context for its
base-period option as a worker's receipt of benefits for "a temporary total
disability or a temporary partial disability," "[m]oney for rehabilitative
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services," or "Hompensation pursuant to any similar federal law." After
requiring the unemployment benefits claim to be filed "within 3 years
after the initial period of disability begins," NRS 612.344(2) then specifies
that, to qualify, the claim must also be filed "not later than the fourth
calendar week of unemployment after: (a) The end of the period of
temporary total disability or temporary partial disability; or (b) The date
the person ceases to receive money for rehabilitative services, whichever
occurs later." (Emphasis added.) Thus, "period of disability" refers to the
duration of a type of disability benefit, not injury. The statute's use of
"whichever occurs later" confirms that NRS 612.344(2) is addressing a
series of potential "period of disability" types, with "initial" modifying the
first in the sequence. While this does not answer whether a worker can
have more than one "initial period of disability" over the course of his
career, it makes untenable the ESD's position that he may, so long as his
periods of disability result from discrete injuries.
D.
Accepting that "period of disability" refers not to injury but to
time off work receiving a particular type of disability benefit, the question
remains whether NRS 612.344(2) permits or prohibits a worker from
having more than one "initial period of disability" over the course of his
career. On this point, the statute's text can reasonably be read either way.
"Initial" may mean first or original, in which event the worker would have
only one initial period of disability, or it may mean the first in a series, in
which the worker could have more than one such initial period. Because
the statute is ambiguous, we may consult its legislative history for clues to
its meaning. See State v. Lucero, 127 Nev. „ 249 P.3d 1226, 1228
(2011); see also Las Vegas Sands Corp. v. Eighth Judicial Dist. Court, 130
Nev. „ 319 P.3d 618, 620 (2014) (in interpreting a statute whose
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text is unclear, the court favors the interpretation that leads to a
reasonable result).
The Legislature added NRS 612.344 to NRS Chapter 612 in
1991. Originally, NRS 612.344 only applied to benefits for temporary total
disability or their federal counterpart. The statute referred to "the period
of disability" twice in one sentence, but it did not mention "initial period of
disability" at all:
A person who has received compensation for a
temporary total disability pursuant to chapter 616
or 617 of NRS or any similar federal law may elect
a base period consisting of the first 4 of the last 5
completed calendar quarters immediately
preceding the first day of the calendar week in
which the disability began. An elected base period
may be established only if the person files a claim
for benefits not later than the fourth calendar week
of unemployment after the end of the period of
disability and files the claim within 3 years after
the period of disability begins.
1991 Nev. Stat., ch. 60, § 1, at 120 (emphasis added). This text concerned
the length of time the worker received temporary disability benefits before
applying for unemployment compensation. If his temporary total
disability period lasted longer than 3 years, then he could not use NRS
612.344 to resurrect a 3+ year old work history as a basis for
unemployment compensation. But nothing suggested that, if the worker
recovered and returned to work, he could not thereafter use NRS 612.344,
assuming he established an adequate work history, his new temporary
total disability period lasted less than 3 years, and he timely applied for
unemployment compensation.
NRS 612.344 was amended to its current, ambiguous form in
1993. The changes to the 1991 version of NRS 612.344 are shown in
italics (additions) and bolded brackets (deletions) below:
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1. A person who has received
[compensation] :
(a) Benefits for a temporary total disability
or a temporary partial disability pursuant to
chapter 616 or 617 of NRS [or] ;
(b) Money for rehabilitative services
pursuant to chapter 616 or 617 of NRS; or
(c) Compensation pursuant to any similar
federal law,
may elect a base period consisting of the first 4 of
the last 5 completed calendar quarters
immediately preceding the first day of the
calendar week in which [the] his disability began.
2. An elected base period may be
established only if the person files a claim for
benefits within 3 years after the initial period of
disability begins and not later than the fourth
calendar week of unemployment after [the] :
(a) The end of the period of temporary total
disability [and files the claim within 3 years after
the period of disability begins.] or temporary
partial disability; or
(b) The date he ceases to receive money for
rehabilitative services,
whichever occurs later.
1993 Nev. Stat., ch. 248, § 3, at 536.
The object of the 1993 amendments to NRS 612.344 was to
expand it to reach temporary partial disability and rehabilitative services
in addition to temporary total disability, not to restrict its use to the 3-year
period following a worker's first disabling injury. The ESD expressly said
this was the reason for the amendments in the prepared testimony it
presented to the 1993 Nevada Legislature:
[The object is to] provide the potential for a second
base period for a person on rehabilitation or
temporary partial disability [by] allow[ing] them
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to use wages earned immediately prior to the
disabling injury to establish an unemployment
insurance claim. . . .
The [ESD] supports passage of this bill
because it provides equity for injured workers who
are receiving assistance from SHAS [workers'
compensation] in the form of rehabilitation services
or temporary partial disability benefits, but do not
have the option of an alternate base period that is
presently available to individuals on temporary
total disability.
In summary, this bill makes available to an
injured individual an alternate base period to
establish benefits if it is to the claimant's
advantage. This is beneficial to the injured
worker.
Hearing on A.B. 436, Before the Assembly Comm. on Labor & Mgmt., 67th
Leg. (Nev., April 23, 1993) (emphasis added) (testimony of ESD Assistant
Chief of Benefits, Ross Whitacre).
The 1993 Legislature amended both NRS 612.185, reprinted
supra § I.A, and MRS 612.344(2), at the same time and as part of the same
bill. The 1993 amendments to NRS 612.185 further confirm our
understanding of the purpose of the 1993 amendments to MRS 612.344(2).
In its pre-1993 form, NRS 612.185(3) said only that a worker was not
"unemployed" for unemployment compensation purposes if he was
receiving "benefits for a temporary total disability." 1985 Nev. Stat., ch.
263, § 1, at 802. The 1993 amendment to NRS 612.185 expanded the
definition of not "unemployed" to reach the worker receiving benefits for
either temporary total or temporary partial disability or money for
rehabilitative services. 1993 Nev. Stat., ch. 248, § 1, at 533. This
expansion of the ranks of the not-"unemployed" to include those on
temporary partial disability or those receiving money for rehabilitative
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services required, in fairness, a correlative expansion of the NRS
612.344(2) option, so it would be available to the new categories of workers
being added to the definition of not-"unemployed" in NRS 612.185. But
nothingS in these amendments suggests a purpose of limiting the
alternative-calculation option NRS 612.344(2) affords to the first injury a
worker may sustain over the course of his career.
E.
Public policy and common sense also support our reading of
MRS 612.344(2). Unemployment compensation is designed "to soften the
economic burdens of those who find themselves unemployed through no
fault of their own by helping them to maintain purchasing power and to
limit the social and economic consequences of unemployment." Kempf v.
Mich. Bell Tel. Co., 358 N.W.2d 378, 382 (Mich. Ct. App. 1984). Workers'
compensation, by contrast, is "designed to aid persons while they are
unable to work due to a physical disability. One is not a substitute for the
other." Id. (emphasis added). As the Colorado Court of Appeals noted in
construing its analog to NRS 612.344(2), "the statutory scheme has as its
purpose to harmonize the payment of benefits which an injured worker
may be entitled to receive under each act." Fluke v. Indus. Claim Appeals
Office, 799 P.2d 468, 470 (Colo. Ct. App. 1990).
We recognize that "the legislature is the parent of
unemployment benefits" and that "Nhese benefits are not inherent rights
of Nevada citizens." Kame v. Emp't Sec. Dep't, 105 Nev. 22, 26, 769 P.2d
66, 68 (1989). It makes sense to establish a limit on how far back in time
a claimant may reach to establish an alternate base period, since the more
remote the period is, the greater the record-keeping and other
administrative challenges. But it is difficult to fathom why a worker with
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a medical condition that recurs should be treated differently from one who
is accident-prone and suffers multiple distinct injuries, especially since the
law, presumably, encourages individuals to return to gainful employment
if they are able. As the ESD conceded at oral argument, it is not in the
business of evaluating the etiology of medical disorders. Its concern is the
proximity of the base period to the application for unemployment
compensation. So long as a disabled claimant's work history establishes
an alternate base period without having to go back more than 3 years to
start the period, NRS 612.344 applies.
For these reasons, we reverse and remand for further
proceedings consistent with this opinion
J.
Pickering
We concur:
j.
Parraguirre
J.
J.
J.
Saitta
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