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City of Reno v. Yturbide

Supreme Court of Nevada

May 2, 2019

CITY OF RENO, Appellant,
v.
JODY YTURBIDE, Respondent. 135 Nev.Adv.Op. 14

          Appeal from a district court order denying a petition for judicial review in a workers' compensation matter. Second Judicial District Court, Washoe County; Patrick Flanagan, Judge.

          McDonald Carano LLP and Timothy E. Rowe and Lisa M. Wiltshire Alstead, Reno, for Appellant.

          Hutchison & Steffen, LLC, and Jason D. Guinasso, Reno, for Respondent.

          Kemp & Kemp and James P. Kemp, Las Vegas; The Law Firm of Herb Santos, Jr., and Herb J. Santos, Jr., Reno, for Amicus Curiae Nevada Justice Association.

          BEFORE PICKERING, PARRAGUIRRE and CADISH, JJ.

          OPINION

          PARRAGUIRRE, J.

         This workers' compensation matter raises an issue pertaining to an injured employee's entitlement to a lump-sum payment for a permanent partial disability (PPD) award. Under NRS 616C.495 and NAC 616C.498, an injured employee may elect to receive a lump-sum payment for a PPD award. However, if the employee's PPD rating exceeds a 25-percent whole person impairment (WPI), the employee may only elect to receive a lump-sum payment for up to 25 percent of the rating, and for anything exceeding that 25 percent, the employee must receive payments in installments. This appeal requires us to decide whether a workers' compensation insurer can reduce the 25-percent lump-sum-payment limit for an employee's PPD award when that employee has already received a lump-sum payment for a previous PPD award. We conclude that there is no legal basis to justify such a reduction, and we are unwilling to read any such justification into Nevada's statutory workers' compensation scheme when the statutory scheme is otherwise silent on the issue. Accordingly, the appeals officer correctly rejected appellant's position, and we affirm the district court's denial of appellant's petition for judicial review.

         FACTS AND PROCEDURAL HISTORY

         Respondent Jody Yturbide worked as a public safety dispatcher for appellant City of Reno (the City), during which time she received three separate PPD awards.[1] As a result of a 2008 industrial injury to her wrist, Yturbide received a 5-percent WPI rating and elected to obtain a lump-sum PPD payment. In 2011, Yturbide suffered another industrial injury, this time to her elbow, and received a 2-percent WPI rating, for which she elected to obtain another lump-sum PPD payment. Finally, in 2014, Yturbide suffered an industrial injury to her back, for which she received a 33-percent WPI rating.

         With respect to Yturbide's third PPD payment, the City disputed the extent to which Yturbide was entitled to a third lump-sum payment. Relying on NRS 616C.495(1)(d) (2007) and NAC 616C.498 (1996), the City offered Yturbide an 18-percent lump-sum payment, based on the City's belief that the statute and regulation permitted the City to deduct Yturbide's previous two PPD lump-sum payments.[2] Specifically, under the versions of the statute and regulation in effect at the time of Yturbide's injury to her back, NRS 616C.495(1)(d) provided that "[a]ny claimant injured on or after July 1, 1995, may elect to receive his or her compensation in a lump sum in accordance with regulations adopted by the Administrator [of the Division of Industrial Relations of the Department of Business and Industry]." NRS 616C.495(1)(d) (2007). In turn, the Administrator promulgated NAC 616C.498, which provided that

[aln employee injured on or after July 1, 1995, who incurs a permanent partial disability that. . . [e]xceeds 25 percent may elect to receive his compensation in a lump sum equal to the present value of an award for a disability of 25 percent. If the injured employee elects to receive compensation in a lump sum pursuant to this subsection, the insurer shall pay in installments to the injured employee that portion of the injured employee's disability in excess of 25 percent.

NAC 616C.498(2) (1996) (emphases added).

         According to the City, because NRS 616G.495(1)(d) and NAC 616C.498 provided a 25-percent lump-sum-payment limit, and because Yturbide had already obtained two previous lump-sum PPD payments totaling 7-percent WPI, the City was permitted to subtract Yturbide's previous lump-sum PPD payments from the 25-percent limit. Thus, according to the City, Yturbide was entitled only to an 18-percent lump-sum payment for her back injury, with the remaining 15 percent to be paid in installments.

         Yturbide appealed this determination concerning her third PPD award by requesting a hearing before the Department of Administration Hearings Division. Following a hearing, the hearing officer found that, pursuant to NAC 616C.498, the City had erred in its 18-percent lump-sum calculation, and further found that Yturbide was entitled to a 25-percent lump-sum payment, with the remaining 8 percent to be paid in installments. The City then appealed the hearing officer's decision and requested a hearing before the Department of Administration Appeals Office. An appeals officer affirmed the hearing officer's decision, concluding, among other things, that NAC 616C.498 did not support the City's position that it was entitled to reduce Yturbide's lump-sum payment for her third PPD award based on Yturbide having already received lump-sum payments for previous PPD ...


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