DARRELL E. WHITE, AN INDIVIDUAL, Appellant,
STATE OF NEVADA, DIVISION OF FORESTRY; AND CANNON COCHRAN MANAGEMENT SERVICES, INC., A/K/A CCMSI, A FOREIGN CORPORATION, Respondents. 135 Nev.Adv.Op. 67
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.
Brisbois Bisgaard & Smith LLP and Daniel L. Schwartz and
Joel P. Reeves, Las Vegas, for Respondents.
HARDESTY, STIGLICH and SILVER, JJ.
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.
AND PROCEDURAL HISTORY
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
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.
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."
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.
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.
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