State Industrial Insurance System v. Campbell , 109 Nev. 997 ( 1993 )

OPINION

Per Curiam:

The sole issue on appeal is whether temporary total disability benefits may be suspended during the time in which a claimant is incarcerated. Absent legislation to the contrary, we hold that they may not.

THE FACTS

The facts in this case are undisputed. John Campbell sustained a compensable industrial injury on August 11, 1988, while working as a brick layer at Cedco, Inc. Campbell qualified for temporary total disability benefits and was referred to the Jean Hanna Clark Rehabilitation Center for treatment. On August 4, 1989, Campbell’s treating physician, William Harris, M.D., recommended that Campbell be discharged from the rehabilitation center and given a comprehensive integrated work-up (“CIW”) to evaluate the extent of his disability.

The State Industrial Insurance System (“SIIS”) notified Campbell by letter, dated October 12, 1989, that a CIW had been scheduled for him on October 30, 1989, in Reno, Nevada. Shortly thereafter, SIIS was advised that Campbell would be unable to attend the CIW because he had recently been incarcerated.¹ SIIS subsequently advised Campbell that his temporary total disability benefits would be suspended pending completion of the CIW.

On May 1, 1990, a hearing officer entered a decision affirming the suspension of Campbell’s benefits. Campbell was released from prison on September 17, 1990, and testified as the only witness at the hearing before the appeals officer on October 8, 1990. On November 9, 1990, the appeals officer reversed, and ordered SIIS to pay retroactively Campbell all suspended benefits. The district court agreed and denied a SIIS petition for judicial review.

DISCUSSION

In reviewing a decision by an administrative officer, an appellate court may not substitute its judgment for that of the officer as to the weight of evidence on questions of fact. Nevada Indus. Comm’n v. Hildebrand, 100 Nev. 47, 52, 675 P.2d 401, 404 (1984); NRS 233B.135(3). However, this court may “undertake independent review of the administrative construction of a statute.” American Int’l Vacations v. MacBride, 99 Nev. 324, 326, 661 P.2d 1301, 1302 (1983) (citations omitted); see also NRS 233B.135(3)(a).

This is a matter of first impression for this court. Chapter 616 of Nevada Revised Statutes does not address the issue of whether disability benefits may be suspended when a claimant is incarcerated. Nevada statutes provide only one specific condition whereby temporary total disability benefits may be suspended by SIIS: where a claimant voluntarily refuses to receive, or obstructs the completion of, a required examination. NRS 616.535(4).² And the only circumstances provided by Nevada law allowing for the permanent discontinuance of disability benefits is “when any physician or chiropractor determines that the employee is capable of any gainful employment.” NRS 616.585(4)³; see also Chappaz v. Golden Nugget, 107 Nev. 938, 822 P.2d 1114 (1991). The appeals officer concluded that Campbell had neither obstructed nor refused to submit to a CIW, and that no physician had discharged Campbell “to return to gainful employment.”

SIIS suggests that the term “obstruct,” as used in NRS 616.535(4), means any voluntary act which results in a claimant failing to submit to a required examination. However, we interpret “obstruct” as meaning a volitional act with intent to hinder a required examination. Such an interpretation is in harmony with our policy of construing workers’ compensation statutes liberally for the protection of the worker. Ransier v. SIIS, 104 Nev. 742, 746, 766 P.2d 274, 276 (1988) (citing Dep’t Ind. Relations v. Circus Circus, 101 Nev. 405, 411-12, 705 P.2d 645, 649 (1985)).

The general rule of liberal construction of the workers’ compensation statutes does not justify the inclusion or the exclusion “of a substantive right that cannot be supported by any fair reading of the statutory scheme.” Weaver v. SIIS, 104 Nev. 305, 306, 756 P.2d 1195, 1196 (1988). We have consistently held that “where a policy consideration advocates exclusion of coverage, the legislature is perfectly capable of implementing such policy.” Goldstine v. Jensen Pre-Cast, 102 Nev. 630, 631, 729 P.2d 1355, 1356 (1986) (emphasis added) (citing SIIS v. Conner, 102 Nev. 335, 721 P.2d 384 (1986)). “The purpose of the [workers’ compensation] system is to provide compensation for industrial injuries.” Id. at 631, 729 P.2d at 1356 (citing Breen v. Caesars Palace, 102 Nev. 79, 715 P.2d 1070 (1986)).

SIIS further argues that the phrase “capable of any gainful employment” in NRS 616.585(4) clearly implies a legislative intent to grant benefits for the replacement of lost wages. As a prisoner, Campbell’s daily necessities were provided for by the State at no cost to him. Consequently, SIIS maintains that since Campbell could not enter the work force while incarcerated he did not lose any wages. While we are sympathetic to this argument, the simple fact is that Chapter 616 of the Nevada Revised Statutes does not provide for the withholding of disability benefits while a claimant is incarcerated, and we will not attempt to create such a disability.⁴

The dissent relies solely on Hansen v. Harrah’s, 100 Nev. 60, 675 P.2d 394 (1984), for the proposition that public policy dictates an outcome in favor of SIIS. The circumstances herein, however, are clearly distinguishable from Harrah’s. In Harrah’s, we adopted a remedy for employees discharged in retaliation for filing workers’ compensation claims. Harrah’s did not, as the dissent is well aware, involve the exclusion of workers’ compensation benefits. Our decision in favor of the employees in Harrah’s was in accord with our “long-standing policy ... to liberally construe [Nevada’s workers’ compensation laws] to protect injured workers and their families.” Id. at 63, 675 P.2d at 396. We are not persuaded by the dissent to depart from that policy today.

The rule of exclusion proposed herein by SIIS is simply “not properly adopted by the courts.” Goldstine, 102 Nev. at 632, 729 P.2d at 1357 (1986) (footnote omitted). A clear majority of other jurisdictions considering this identical issue agree. See Matter of Injury to Spera, 713 P.2d 1155 (Wyo. 1986) (emphasis added); United Riggers Erectors v. Industrial Com’n, 640 P.2d 189, 191 (Ariz.Ct.App. 1981); Crawford v. Midwest Steel Company, 517 So.2d 918, 923-924 (La.Ct.App. 1987); DeMars v. Roadway Express, 298 N.W.2d 645 (Mich.Ct.App. 1980).

We affirm the decision in favor of Campbell’s receipt of the suspended benefits.

1 Campbell had previously been sentenced to four and one-half years of probation following a burglary committed in 1983. Campbell was charged with violating his probation in September of 1989 following a domestic dispute. Consequently, Campbell was sent to the state penitentiary for a period of one year.

2 NRS 616.535 provides in pertinent part:

1. Any employee who is entitled to receive, compensation under this chapter shall, if:

(a) Requested by the insurer; or

(b) Ordered by an appeals officer or a hearing officer,

submit himself [or herself] for medical examination at a time and from time to time at a place reasonably convenient for the employee, and as may be provided by the regulations of the department.

4. If the employee refuses to submit to any such examination or obstructs it, his [or her] right to compensation is suspended until the examination has taken place, and no compensation is payable during or for the period of suspension.

(Emphasis added.)

3 NRS 616.585(4) provides: “4. For purposes of the payment of benefits for a temporary total disability under this section, the period of temporary total disability ceases when any physician ... is capable of any gainful employment.” (Emphasis added.)

4 SIIS maintains that its position is supported, by analogy, by the July 3, 1990, amendment to the Nevada Administrative Code entitled “Modified Program For Offenders In Prison Industry Program.” NAC 616.722 provides:

1. An offender is not entitled to accrue or be paid any compensation for temporary total disability, temporary partial disability, permanent partial disability or permanent total disability while he is incarcerated.

2. Payment of compensation begins upon the release of the offender from incarceration on:

(a) Parole;

(b) Final discharge; or

(c) Discharge from custody by order of a court of competent jurisdiction.

3. Compensation will be discontinued during any subsequent period of incarceration in:

(a) A facility of the department of prisons; or

(b) Any other federal, state or local prison system.

(Emphasis added.) While the above language is persuasive at first blush, the scope of this section is limited to those “injured or killed in the course and scope of . . . employment in the prison industry program. . . . The program does not include coverage for an injury which occurred before the offender was confined at a facility operated by the department of prisons.” NAC 616.710 (emphasis added). Therefore, this section specifically excludes those in Campbell’s position.