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White v. State

Supreme Court of Nevada

December 26, 2019


         Appeal from a district court order denying a petition for judicial review in a workers' compensation matter. Eighth Judicial District Court, Clark County; Rob Bare, Judge.

          Gallian Welker & Beckstrom and Travis N. Barrick, Las Vegas, for Appellant.

          Lewis Brisbois Bisgaard & Smith LLP and Daniel L. Schwartz and Joel P. Reeves, Las Vegas, for Respondents.



          HARDESTY, J.

         We are asked to determine whether a person who suffers an industrial injury while incarcerated but who subsequently is released and seeks workers' compensation disability benefits due to that injury is entitled to have the benefits calculated at the minimum wage guaranteed under the Nevada Constitution. Under the modified workers' compensation program for prisoners, NRS 616B.028, the amount of compensation a prisoner may receive upon release is based on the average monthly wage the prisoner actually received as of the date of the injury. The fact that this wage may be low-here $22.93, amounting to a daily wage of $0.50-does not permit the administrative appeals officer to recalculate the average monthly wage at an amount the prisoner did not actually receive. Therefore, we affirm the district court's order denying the petition for judicial review.


         In December 2015, while incarcerated in the Nevada Department of Corrections (NDOC), appellant Darrell White injured his right middle finger while working for respondent Nevada Division of Forestry through an NDOC work program. White timely filed a workers' compensation claim, and the Division of Forestry's insurance carrier, respondent Cannon Cochran Management Services, Inc., accepted White's claim. In July 2016, White was released from NDOC. White retained counsel and notified Cannon Cochran he had had trouble receiving medical care while incarcerated and now wished to be seen by a medical provider to rehabilitate his finger. Cannon Cochran scheduled him to be seen by a medical professional. From August 6, 2016, until December 28, 2016, totaling 144 days, White was deemed temporarily totally disabled for the injuries sustained while he was incarcerated.

         Cannon Cochran notified White it had calculated his total wages to be "$69.30" from October 1 through December 31, 2015, with an average monthly wage calculation of "$22.93 for a daily rate of $0.50." White administratively appealed Cannon Cochran's calculation and argued that his wage should have been calculated at $7.25 per hour-the minimum wage at the time of his injury. The thrust of his argument was that NRS 616B.028, the modified workers' compensation program for persons who are injured while incarcerated, controlled his rate of compensation only during incarceration. White argued the statute did not detail what happens after j incarcerated persons are released but are still injured from an accident that occurred while incarcerated. White contended that his monthly wage for the purpose of disability benefits should be set at no less than the minimum wage guaranteed by the Minimum Wage Amendment to the Nevada Constitution. The State disputed White's constitutional argument, claiming the date of his injury controlled the calculation of workers' compensation and he was therefore entitled to $0.50 a day, his wage while incarcerated. The State further argued that White could not have his calculation shifted simply because White believed the calculation was unfair; instead, the State averred that there must be a statute to support the argument.

         The appeals officer denied White's appeal and affirmed Cannon Cochran's calculation. The appeals officer found "there is no doubt that claimant, subsequent to release from custody, was declared unable to work," but reasoned that White "entered into this 'employment' at the wage set by the work program/prison industry" and his benefits were set by the wages he earned while working for the Division of Forestry. The appeals officer concluded that Cannon Cochran correctly calculated White's average monthly wage because, under NRS 616B.028(2), coupled with NRS 616C.425, "the amount of compensation [owed to White] must be determined as of the date of the accident."

         White petitioned for judicial review in the district court and reiterated the constitutional claim he had raised at the administrative level. The State rebutted his arguments again on the grounds that the modified workers' compensation program under NRS 616B.028(2), along with NRS 616C.425(1), controlled White's daily wage calculation at $0.50 a day.

         The district court affirmed the appeals officer's decision and denied the petition for judicial review. The district court found that, although NRS 616B.028 does not specifically address benefits after a prisoner has been released from custody, NRS 616C.500(2) addresses the issue by providing that prisoners "are entitled to receive [workers' compensation] benefits if the injured employee is released from incarceration during the period of disability." The district court rejected White's constitutional argument and instead relied on NRS 616C.425(1), finding average monthly wage calculations are determined by the date of accident. The district court held neither Cannon Cochran nor the appeals officer erred in White's wage calculation.

         White appeals to this court. Following oral argument, we ordered simultaneous supplemental briefing on the issue of whether the definition of "wages" in NAC 616B.964 violates ...

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