Anderson v. State

• Decision Date: 15 May 2014
• Docket Number: No. 59152.,59152.
• Parties: Ricky D. ANDERSON, Appellant, v. The STATE OF NEVADA EMPLOYMENT SECURITY DIVISION; Cynthia A. Jones, In Her Capacity As Administrator of the Employment Security Division; and Katie Johnson, In Her Capacity As Chairperson of the Employment Security Division Board of Review, Respondents.
• Court: Nevada Supreme Court

324 P.3d 362

130 Nev. Adv. Op. 32

Ricky D. ANDERSON, Appellant,

v.The STATE OF NEVADA EMPLOYMENT SECURITY DIVISION; Cynthia A. Jones, In Her Capacity As Administrator of the Employment Security Division; and Katie Johnson, In Her Capacity As Chairperson of the Employment Security Division Board of Review, Respondents.

No. 59152.

Supreme Court of Nevada.

May 15, 2014.

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 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 period” and be “unemployed” but “able to [and] available for work.” NRS 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 alsoNRS 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. Cf. 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 alternative base period for the person who was not “unemployed” because 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 Division (ESD) reads NRS 612.344 as limited to the 3 years following the 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.

Anderson went through a series of administrative appeals, then petitioned for judicial review, to no avail. This appeal followed.

II.

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 win.

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...