Nevada Indus. Commission v. Strange

• Citation: 84 Nev. 153,437 P.2d 873
• Decision Date: 28 February 1968
• Docket Number: No. 5354,5354
• Parties: NEVADA INDUSTRIAL COMMISSION, an agency of the State of Nevada, Appellant, v. William H. STRANGE, Respondent.
• Court: Nevada Supreme Court

Page 873

437 P.2d 873

84 Nev. 153

NEVADA INDUSTRIAL COMMISSION, an agency of the State of

Nevada, Appellant, v. William H. STRANGE, Respondent.

No. 5354.

Supreme Court of Nevada.

Feb. 28, 1968.

William J. Crowell, Carson City, for appellant.

Richard P. Wait and Roger L. Erickson, Reno, for respondent.

OPINION

MOWBRAY, Justice.

Respondent fell from a ladder while attempting to install a sign at the candy counter at the Granada Theater in Reno, where he was then employed by United California Theaters, Inc.

As a result of the fall, respondent received disabling injuries to his back, including a severly ruptured and herniated intervertebral disc with blocking of the lumbosacral levels, massive protrusion of the disc, and a compression fracture of the first lumbar vertebral body. He was hospitalized for surgical repair including a partial hemilaminectomy and removal of an intervertebral disc. On the date of his accident he was earning $80 per week.

Respondent timely filed his claim for compensation with appellant, jurisdiction was assumed, and the Commission offered an award of 15% permanent partial disability or 15 months' disability at $100 per month, totaling $1500, plus an additional award of 5% for loss of future earning capacity and other factors and considerations or 5 months at $100 per months, totaling $500, making a grand total award of $2000.

He chose not to accept the award but instead commenced this action against appellant in the district court. A full hearing before the trial judge was conducted, evidence, both documentary and oral, was received, and at the conclusion of the trial the district judge filed a decision finding that respondent was entitled to the benefits of the Nevada Industrial Insurance Act and fixing his award in the sum of $9900 with interest from date of judgment at the rate of 7% per annum.

The issues raised by the appeal may be grouped under three headings:

1. What is the precise duty of the trial court in proceedings of this nature? Is it a court of review? Is it bound by the findings of the Nevada Industrial Commission? Or are its powers the same as in any other original law suit--to hear and consider the evidence and make its own independent findings and an appropriate award based thereon?

2. Was there substantial evidence received to support the findings of the trial court and the award granted to respondent?

3. Should the trial court's judgment be modified to provide that the interest on the award run from the date respondent was terminated by appellant, rather than from the date of the entry of judgment in the trial court?

1. The law of Nevada has always been that proceedings such as the instant case are original in the district court. Our Legislature approved the Nevada Industrial Act on March 15, 1913. ¹ By its terms, employers and employees in this State contribute to a fund from which employees incurring injuries during their employment are compensated by the Commission.

State ex rel. Brown v. Nev. Indus. Comm., 40 Nev. 220, 161 P. 516 (1916), was

the first case of this court construing the Act. In Brown, this court clearly established that an aggrieved employee who was dissatisfied with the award of compensation granted by the Commission had the right to bring an original action in district court against the Commission and that the enforcement of that right in the district court involved a justiciable controversy over which our district courts have original jurisdiction as provided in the Nevada Constitution.

While in the Brown case the employee sought a writ of mandamus from this court directing the Commission to award him compensation in excess of the award he had received, this court, in denying his application for the writ on the grounds that he had a plain, speedy, and adequate remedy at law, held, at 225, 161 P. at 517: 'That there is a remedy at law against respondent upon a rejected claim of an employe , we think, permits of no question. Suppose, for example, a claim is rejected by the Commission upon the ground that the relation of employer and employe did not exist at the time of the accident, * * *. Again, if the Commission should determine that the extent of the claimant's injuries are not as great as that asserted by the claimant, and the claimant is unwilling to accept the compensation which the Commission determines he is entitled to, the claimant is entitled to have the question of the extent of his injuries determined as a fact by a court of law. * * *

'In the administration of the important duties imposed upon the Nevada Industrial Commission, that Commission will doubtless often be required, as it interprets its duty, to reject claims in whole or in part, and both upon questions of fact and law. If a claim is finally rejected in toto, that is the end of it so far as the Commission is concerned, unless a judgment is obtained against the Commission in a court of competent jurisdiction, in which event the judgment will have the force of an allowed claim. * * * A district court is the proper forum to determine the legality of his (employee's) claim, and, if a legal claim, the amount he is entitled to recover under the statute. If, after a judgment in the district court, either party is dissatisfied with such judgment, the remedy of appeal to this court is available.

'If the Legislature had not adopted the statute under which petitioner claims compensation, he would, if he sought to enforce compensation from his employer, be compelled to institute his suit in the district court. It cannot, in reason, we think, be contended that a person entitled to compensation for personal injury has, by virtue of the statute, been granted any different remedy to establish his right to such compensation than that which before existed.'

This court, in Dahlquist v. Nev. Indus. Comm., 46 Nev. 107, 119, 206 P. 197, 207 P. 1104 (1922), reaffirmed the holding of the Brown case, and among other things stated:

'Counsel seem to base their entire argument upon the theory that the case in the district court, wherein the judgment was rendered which was appealed to this court, was tried by that court de novo. Since the term 'de novo' means anew, it may be that, literally speaking, the trial in that court was de novo; but in legal parlance the term 'de novo' signifies that there had already been a trial before some tribunal, and that the trial de novo was not before a court upon an original hearing, but upon appeal, whereas this case was originally instituted in the district court. We are sure that learned counsel are well aware of the terms of section 1, art. 6, of our Constitution, and of the holding in Ormsby County v. Kearney, 37 Nev. 314, 142 Pac. 803, and followed in (Vineyard Land & Stock) Co. v. District Court, 42 Nev. 1, 171 Pac. 166, wherein it was held that the Legislature had no authority to create a tribunal with judicial powers, other than as provided in the section of the Constitution mentioned, from which an appeal might be taken to the district court in this state. 'We have not been cited to any provision in the Workmen's Compensation Act (St.1913, c. 111, as amended by St.1915, c. 190, St.1917, c. 233, and St.1919, c. 176) authorizing an appeal from the Commission to the court, nor do we understand that it is contended that there can be such an appeal. * * * There is absolutely no connection between the proceeding before the Commission and that before this court, * * *. In the case before us the (trial) court reviewed nothing; it merely determined a suit commenced before it. There was no connection between the proceedings before the Commission and the (trial) court proceeding.' Also, Provenzano v. Long, 64 Nev. 412, 183 P.2d 639 (1947); Nevada Indus. Comm. v. Frosig, 74 Nev. 209, 326 P.2d 736 (1958).

It is to be particularly noted that this court in the Brown case decided that the legislative intent was to vest in the aggrieved employee his cause of action against the Commission, and held in the Dahlquist case that the proceeding before the district court was not a trial de novo but an original proceeding.

The Nevada Industrial Insurance Act contains no provisions for a...