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Felton v. Douglas County

Supreme Court of Nevada

February 15, 2018

GREGORY FELTON, Appellant,
v.
DOUGLAS COUNTY; AND PUBLIC AGENCY COMPENSATION TRUST, Respondents.

         Appeal from a district court order denying a petition for judicial review of a workers' compensation award. First Judicial District Court, Carson City; James Todd Russell, Judge. Reversed and remanded.

          Evan B. Beavers, Nevada Attorney for Injured Workers, and Edward L. Oueilhe, Deputy Nevada Attorney for Injured Workers, Carson City, for Appellant.

          Thorndal, Armstrong, Delk, Balkenbush & Eisinger and Robert F. Balkenbush and John D. Hooks, Reno, for Respondents.

          BEFORE HARDESTY, PARRAGUIRRE and STIGLICH, JJ.

          OPINION

          STIGLICH, J.

         Workers' compensation benefits are based on a percentage of a worker's average monthly wage; therefore, the proper calculation of a claimant's average monthly wage is of paramount importance. Uncompensated volunteers are provided with a "deemed wage, " a fictional salary from which benefits can be calculated if a volunteer, who would not otherwise be an "employee, " is injured in the course of volunteer work; This appeal requires us to determine whether a claimant who is injured during the course of volunteer work, who also has concurrent private employment, should have his average monthly wage based solely on his "deemed wage" from volunteer work, or whether he is entitled to have his deemed wage be aggregated with earnings from his concurrent private employment. Because the plain language of our relevant workers' compensation statutes and regulations requires the aggregation of concurrently earned wages, we reverse the district court's denial of appellant's petition for judicial review and remand to the district court with instructions to grant the petition and to remand the matter to the appeals officer for further proceedings consistent with this opinion.

         BACKGROUND

         Appellant, Gregory Felton, sustained a minor injury to his knee while volunteering on a Douglas County search and rescue team. At that time, Felton worked for Hewlett-Packard as a quality control specialist.

         Following his injury, Felton filed a claim seeking insurance benefits from Douglas County and its workers' compensation insurance carrier, the Public Agency Compensation Trust (PACT). The third-party claims adjustor, Alternative Service Concepts (ASC), notified Felton by letter that it had calculated his average monthly wage (AMW) for the purpose of determining the amount of benefits to which he would be entitled under his claim. ASC based its calculations upon the statutorily deemed wage of a search and rescue volunteer as set forth in NRS 616A.157, which is $2, 000 per month. ASC awarded Felton a one-percent permanent partial disability (PPD) or whole person impairment (WPI). Felton disputed the ASC award as to both his AMW and PPD and sought review by a hearing officer. Before the hearing officer, Felton argued that his deemed wage and his earned wage at Hewlett-Packard should be aggregated. The hearing officer affirmed the ASC award in its entirety. Felton appealed only the hearing officer's determination that his AMW should be set at the statutorily deemed wage of a search and rescue volunteer.[1]

         The appeals officer affirmed the hearing officer's determination and held that, as a matter of law, Felton was not entitled to an AMW that aggregated his statutorily deemed wage and his earned wage from his private employment.

         Felton filed a timely petition for judicial review, arguing that the appeals officer erred as a matter of law by not aggregating his statutorily deemed wage for volunteer work with his actual earned wage. The district court denied Felton's petition in a written order.

         DISCUSSION

         "The standard for reviewing petitions for judicial review of administrative decisions is the same for this court as it is for the district court." City of Reno v. Bldg. & Constr. Trades Council of N. Nev., 127 Nev. 114, 119, 251 P.3d 718, 721 (2011). "Like the district court, we decide pure legal questions without deference to an agency determination." Id. (internal quotation marks omitted). Likewise, "[w]e do not give any deference to the district court decision when reviewing an order regarding a petition for judicial review." Id. This court applies a de novo standard of review to questions of law, which includes the administrative construction of statutes. Elizondo v. Hood Mach., Inc., 129 Nev. 780, 784-85, 312 P.3d 479, 482 (2013).

         NRS 616A.065 provides a starting point for ...


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