for en banc reconsideration of a panel opinion in an appeal
from a district court order denying a petition for judicial
review in a workers' compensation matter. Eighth Judicial
District Court, Clark County; Valorie J. Vega, Judge.
granted; reversed and remanded with instructions.
Dunkley Law and Mark G. Losee and Matthew S. Dunkley,
Henderson, for Appellant.
Brisbois Bisgaard & Smith, LLP, and Daniel L. Schwartz
and Jeanne P. Bawa, Las Vegas, for Respondents.
April 7, 2016, a panel of this court issued an opinion
reversing, remanding, and instructing the district court to
remand the case to the appeals officer. After respondents
petitioned for en banc reconsideration, we granted the
petition. We now withdraw the April 7, 2016, opinion and
issue this opinion in its place. On en banc reconsideration,
we again reverse, remand, and instruct the district court to
remand to the appeals officer, but we instruct the appeals
officer to conduct a hearing consistent with this opinion.
616C.390(1) sets forth the required findings that compel
reopening of a workers' compensation claim, none of which
include the right of an insurer to reimbursement from an
injured workers' third-party recovery. NRS
616C.215(2)(a), however, provides that when an injured
employee who receives workers' compensation also recovers
damages from the responsible party, the amount of
workers' compensation benefits must be reduced by the
amount of the damages recovered. We concluded in
Employers Insurance Co. of Nevada v. Chandler, 117
Nev. 421, 426, 23 P.3d 255, 258 (2001), that an insurer may
refuse to pay additional funds via reopening a workers'
compensation claim until the claimant demonstrates that he or
she has exhausted any third-party settlement fluids and that
medical expenses are considered to be compensation that an
insurer may withhold until the recovery amount has been
case now before us, it appears that the appeals officer and
the district court resolved the petition to reopen based upon
whether Poremba exhausted his settlement funds on medical
expenses. That is erroneous for two reasons. First, NRS
616G.390 does not require exhaustion or reimbursement as a
condition precedent to reopening a workers' compensation
claim. Second, insurers, although entitled to reimbursement,
are only entitled to reimbursement from the portions of
third-party recovery allocated to expenses within the scope
of workers' compensation. Accordingly, we hold that (1)
an administrative officer, or in this case an appeals
officer, must first reopen a worker's compensation claim
based solely on the requirements contained within NRS
616C.390(1), then determine what, if any, reimbursement an
insurer is entitled to before it must provide additional
workers' compensation benefits; and (2) although an
insurer may be entitled to reimbursement from the portion of
settlement funds designated for expenses otherwise covered by
workers' compensation, an insurer is not entitled to
reimbursement from the portion of settlement funds designated
to compensate the injured worker for items outside the
definition of "compensation" in NRS 616A.090, such
as past, present, and future pain and suffering.
AND PROCEDURAL HISTORY
William Poremba worked for respondent Southern Nevada Paving
as a construction driver. On July 22, 2005, in the course of
his duty, Poremba was driving a truck when another driver
struck the truck with his backhoe. Poremba suffered injuries
to his head, neck, back, and knee. Poremba filed a
workers' compensation claim, which Southern Nevada
Paving, through respondent S&C Claims (collectively
S&C), accepted. S&C eventually closed the claim,
sending Poremba a letter with instructions on how to reopen
the claim should his condition worsen.
also sued the backhoe driver and his employer. That lawsuit
was settled on July 30, 2009, for $63, 500, with a
significant amount of that settlement paid directly to cover
health-care providers' liens. Poremba personally received
$34, 631.51. He spent approximately $14, 000 of the money he
received on additional medical treatment. The settlement
agreement, however, did not specify a structure as to how the
funds were to be allocated.
attempted to return to work, but he was unable to do so.
Additionally, his doctors instructed him not to go back to
work. On January 10, 2013,  Poremba sought to reopen his
claim, but S&C denied his request. Poremba
administratively appealed, and S&C filed a motion for
summary judgment, arguing that our decision in
Chandler precluded Poremba from reopening his claim
because he spent settlement funds on expenses other than
medical costs. After an evidentiary hearing in which the
appeals officer prevented Poremba from introducing evidence
about the potential changed circumstances surrounding his
injuries, the appeals officer summarily granted S&C
summary judgment, again denying Poremba's attempt to
reopen his claim. Poremba petitioned the district court for
judicial review. The district court denied the petition, and
this appeal followed.
asserts that the appeals officer erred in granting summary
judgment because, legally, he is not required to prove that
he spent his excess recovery on medical expenses and because
factual issues exist as to whether his injury had worsened,
necessitating additional compensation. S&C argues that
Chandler "clearly stands for" the
proposition that a claimant who receives a third-party
settlement may not spend any of that money on home loans or
family expenses and reopen his or her workers'
compensation claim when his or her medical situation changes.
S&C argues that the point is to prevent a double
recovery, asserting that double recovery means simply to
recover from two sources for the same injury. We disagree
court's role in reviewing an administrative agency's
decision is identical to that of the district court.
Elizondo v. Hood Mach., Inc., 129 Nev. 780, 784, 312
P.3d 479, 482 (2013). Although we defer to an agency's
findings of fact, we review legal issues de novo, including
matters of statutory interpretation. Taylor v. State,
Dep't of Health & Human Servs., 129 Nev. 928,
930, 314 P.3d 949, 951 (2013). We defer to an agency's
interpretations of its governing statutes or regulations only
if the interpretation "is within the language of the
statute." Id. (internal quotations omitted).
compensation provides specific benefits while personal injury
recoveries may be designed not only to pay for special
damages, such as loss of earnings and medical expenses, but
to compensate for general or noneconomic damages such as pain
and suffering and emotional distress. The critical inquiry
for determining insurer reimbursement is not how an injured
worker spends settlement funds, but how those settlement
funds are allocated for various damages. We hold that
workers' compensation insurers are not entitled to
reimbursement from the portion of third-party settlement
funds that do not fall within the definition of compensation
found in NRS 616A.090. Moreover, before an administrative
officer may even consider reimbursement, the officer must
first make a finding pursuant to NRS 616C.390 as to whether
the worker's claim must be reopened.
administrative officer must make a finding pursuant to NRS
616C.390 before considering whether the insurer is entitled
to any reimbursement
rules notwithstanding, the sole requirements for a claimant
to reopen a workers' compensation claim are contained
within NRS 616C.390:
1. If an application to reopen a claim to increase or
rearrange compensation is made in writing more than 1 year
after the date on which the claim was closed, the ...