RICKY D. ANDERSON, Appellant,
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
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.
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.
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.
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 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. 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, ...