                                                     130 Nev., Advance Opinion         32
                        IN THE SUPREME COURT OF THE STATE OF NEVADA

                 RICKY D. ANDERSON,                                     No. 59152
                 Appellant,
                 vs.
                 THE STATE OF NEVADA
                 EMPLOYMENT SECURITY DIVISION;
                                                                             FILED
                 CYNTHIA A. JONES, IN HER                                     MAY 1 5 2014
                 CAPACITY AS ADMINISTRATOR OF                                  AUE K. LINDEMAN

                 THE EMPLOYMENT SECURITY
                                                                        BY
                 DIVISION; AND KATIE JOHNSON, IN                             CHIEF DEP)G-IY CLE

                 HER CAPACITY AS CHAIRPERSON OF
                 THE EMPLOYMENT SECURITY
                 DIVISION BOARD OF REVIEW,
                 Respondents.

                             Appeal from a district court order denying a petition for
                 judicial review in an unemployment benefits matter. Eighth Judicial
                 District Court, Clark County; Elissa F. Cadish, Judge.
                             Reversed and remanded.

                 Nevada Legal Services and David A. Olshan and Heather Anderson-
                 Fintak, Las Vegas,
                 for Appellant.

                 J. Thomas Susich, Senior Legal Counsel, Employment Security Division,
                 Sparks,
                 for Respondents.




                 BEFORE THE COURT EN BANC.

                                                  OPINION
                 By the Court, PICKERING, J.:
                             NRS 612.344 allows an individual who cannot find work after
                 a period of temporary disability the option of using his work history for the
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                15 months preceding his disability leave to determine his unemployment
                compensation instead of, as is the norm, the 15 months preceding his
                application for unemployment compensation. To qualify for this option,
                the application must be filed "within 3 years after the initial period of
                disability begins and not later than the fourth calendar week of
                unemployment after.... [t]he end of the period of temporary total
                disability or temporary partial disability [or the] date the person ceases to
                receive money for rehabilitative services, whichever occurs later." NRS
                612.344(2). On this appeal, we consider what the phrase "within 3 years
                after the initial period of disability begins" means for the worker with a
                recurring or degenerative condition. We hold that it refers to the first in
                the series of potentially available benefits enumerated in NRS
                612.344(2)—temporary total disability, temporary partial disability,
                and/or vocational rehabilitation—for each episode of compensated
                disability leave. Thus, the alternative-calculation option in NRS 612.344
                renews when a temporarily disabled worker recovers and returns to work
                long enough to reestablish himself in the unemployment compensation
                system.
                                                      I.
                                                     A.
                            Unemployment compensation depends on wages and work
                history during a claimant's "base period." NRS 612.340; NRS 612.375. In
                general, "base period" is defined as "the first 4 of the last 5 completed
                calendar quarters [i.e., 15 months] immediately preceding the first day of
                a person's benefit year," NRS 612.025, which begins the "first day of the
                week ... a valid claim is filed" and continues for the succeeding 52 weeks.
                NRS 612.030. To qualify for unemployment compensation in any given
                week, the claimant must have earned wages "within his or her base
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                 612.375(1). A person is not "unemployed" who is receiving temporary
                 disability or similar benefits as workers' compensation or for vocational
                 rehabilitation:
                             No person shall be deemed to be unemployed in
                             any week in which the person:


                                   (b) Receives benefits for a temporary total
                             disability or a temporary partial disability
                             pursuant to chapters 616A to 616D, inclusive, or
                             617 of NRS; or
                                   (c) Receives money for rehabilitative services
                             pursuant to chapters 616A to 616D, inclusive, or
                             617 of NRS.
                 NRS 612.185(3); see also NRS 612.190(3)(a)(2) ("Wages" does not include
                 an employing unit's payments for "[s]ickness or accident disability.").
                             These statutes coordinate the workers' compensation and
                 unemployment compensation systems so as to avoid duplication of wage-
                 loss benefits. CI 9 Lex K. Larson, Larson's Workers' Compensation Law §§
                 157.01-157.02 (2013) (arguing that "all wage loss devices should be part of
                 an overall system" and lamenting "the jerry-built character of American
                 social legislation [that] has resulted at many points in failure to anticipate
                 and provide for appropriate coordination"). But they create an "inequity in
                 the law" for the "person with a recognized attachment to the labor force
                 who is injured on the job and receives workman's compensation. . . and is
                 then released to return to work and [finds] no work is available [yet] is
                 disqualified" from unemployment compensation by his lack of base-period
                 wages. Hearing on S.B. 3 Before the Assembly Comm. on Labor & Mgmt.,
                 66th Leg. (Nev., March 14, 1991) (testimony of Stan Jones, then Director
                 of the Nevada Employment Security Department).
                             NRS 612.344 addresses this inequity.              It creates an
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                 alternative base period for the person who was not "unemployed" because
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                receiving workers' compensation or other benefits enumerated in NRS
                612.185(3). Such a person "may elect" to have his unemployment
                compensation determined with reference to his wages for the 15 months
                preceding his disability leave instead of the 15 months before applying for
                unemployment compensation.
                            A person who has received:
                                  (a) Benefits for a temporary total disability
                            or a temporary partial disability pursuant to
                            chapters 616A to 616D, inclusive, or 617 of NRS;
                                  (b) Money for rehabilitative      services
                            pursuant to chapters 616A to 616D, inclusive, or
                            617 of NRS; or
                                  (c) Compensation pursuant to any similar
                            federal law,
                            may elect a base period consisting of the first 4 of
                            the last 5 completed calendar quarters
                            immediately preceding the first day of the
                            calendar week in which the disability began.
                NRS 612.344(1). The alternative-calculation option does not extend to
                periods of sustained disability lasting longer than 3 years:
                            An elected base period may be established only if
                            the person files a claim for benefits within 3 years
                            after the initial period of disability begins and not
                            later than the fourth calendar week of
                            unemployment after:
                                  (a) The end of the period of temporary total
                            disability or temporary partial disability; or
                                (b) The date the person ceases to receive
                            money for rehabilitative services,
                            whichever occurs later.
                NRS 612.344(2).
                            We must decide how, if at all, NRS 612.344 applies to a
                recurring or degenerative medical condition. The Employment Security

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                Division (ESD) reads NRS 612.344 as limited to the 3 years following the
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                     original, disabling injury. So, if a worker injures his knee, receives
                     temporary total disability benefits for 2 years, is rehabilitated, returns to
                     work for 20 years, then reinjures his knee and is off work on temporary
                     disability for 15 months, and cannot find work when he is medically
                     cleared to return, he may not receive unemployment compensation despite
                     his 20-year work history. We reject this interpretation as unreasonable
                     and hold instead that the NRS 612.344 option renews when an injured
                     worker rejoins the work force and works long enough to establish a fresh
                     base period.
                                                          B.
                                    In 2004, appellant Ricky Anderson injured his C-5 and C-6
                     vertebrae at work. The injury was debilitating, and Anderson received
                     workers' compensation benefits for temporary total disability. Following
                     surgery, Anderson returned to work as a construction company foreman.
                     He held this job for more than two years, from March 2006 until October
                     2008. Anderson's back problems recurred, and he again received
                     temporary total disability benefits, from November 2008 until June 2010.
                     After more surgery, Anderson was medically released to return to work.
                     But Anderson could not find a job, so he filed for unemployment
                     compensation.
                                    The ESD denied Anderson's claim. It determined that he did
                     not qualify for unemployment compensation, calculated conventionally,
                     because he had not earned wages in the first four of the last five calendar
                     quarters preceding his application. And since Anderson received disability
                     benefits for his back injury starting in July 2004, it held that he could not
                     use NRS 612.344's alternative-calculation option, as the statute's three-
                     year window closed in 2007.


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                             Anderson went through a series of administrative appeals,
                then petitioned for judicial review, to no avail. This appeal followed.


                                                       A.
                             We defer to the ESD's findings of fact but our review is de
                novo as to questions of law.    Clark Cnty. Sch. Dist. v. Bundley, 122 Nev.
                1440, 1445, 148 P.3d 750, 754 (2006). The ESD argues that the issue in
                this case is factual—did Anderson's 2004 injury to his C-5 and C-6
                vertebrae underlie his temporary total disability in 2004-2006 and 2008-
                2010? But Anderson accepts (and so do we) the ESD's finding that his
                2004 injury led to both disability leaves. Anderson's point is that by
                working full-time from 2006 to 2008, he restored his eligibility to elect the
                optional base period under NRS 612.344. This is a legal question calling
                for statutory interpretation, not fact-finding, making our review de novo.
                                                       B.
                             To the ESD, NRS 612.344 has an obvious plain meaning: If
                the same original injury leads to two extended periods of temporary
                disability, the NRS 612.344(1) option only applies to the first. The ESD
                culls this meaning from NRS 612.344(2)'s use of the word "initial" in
                providing, "An elected base period may be established only if the person
                files a claim for benefits within 3 years after the initial period of disability
                begins. . ." (Emphasis added.) "If the Legislature meant that one could
                elect an alternative base period within three years after any work
                stoppage resulting from an earlier injury," the ESD argues, "it would have
                stated that. Instead, the Legislature specifically limits eligibility for
                election of the alternative base period to three (3) years from the date that
                the INITIAL disability begins." (Capitalization ESD's.) The ESD
                maintains that we must read "initial" out of the statute for Anderson to
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                             But the ESD reads "period of' out of the statute. It has
                 "initial" modifying "disability," then equates "disability" with "injury."
                 This explains the ESD's position that the dispute here is factual:
                 Anderson's "initial" injury occurred in 2004, so according to the ESD, his
                 optional NRS 612.344 election expired 3 years later for anything causally
                 connected to that "initial" injury. But if two distinct on-the-job injuries
                 had befallen Anderson—say a skull fracture from a fall, then two years
                 later, third-degree burns from a warehouse fire—and they led to the same
                 disability leave/work history that his back injury did, apparently the ESD
                 would permit him to use NRS 612.344 because the "disabilit[ies]"—read
                 injuries—are distinct.
                             The logic of the ESD's position is hard to follow. If its goal is
                 to sustain its denial of benefits to Anderson, it would be better off to accept
                 that "initial" modifies "period of disability" and then treat the NRS
                 612.344 option as a one-time opportunity. This would mean that a worker
                 has only 3 years after his first or "initial" period of disability to use NRS
                 612.344; after that, the option would expire, regardless of what disabilities
                 followed or how long he worked between them. But consistent with the
                 rule that our "unemployment statutes should be liberally construed in
                 order to advance the protective purposes of Nevada's unemployment
                 compensation system of providing temporary assistance and economic
                 security to individuals who become involuntarily unemployed," State Dep't
                 of Emp't, Training & Rehab. v. Reliable Health Care Servs. of S. Nev., Inc.,
                 115 Nev. 253, 257, 983 13.2d 414, 417 (1999), the ESD does not go that far.
                 It argues only that NRS 612.344 is off-limits where, as in Anderson's case,
                 the same original injury leads to multiple periods of disability leave.




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                                                       C.
                              "[Pleriod of disability" is not defined in Chapter 612 or
                  elsewhere in the NRS. However, it is used in Nevada's workers'
                  compensation statutes, NRS Chapter 616C, to distinguish between
                  "temporary total disability" and "temporary partial disability," on the one
                  hand, and "permanent partial disability," on the other hand. NRS
                  616C.405 (stating that a person may not receive permanent partial
                  disability compensation "during [a] period of temporary total disability"
                  and that a person may not receive a permanent partial disability award
                  "during [a] period of temporary partial disability"); see NRS 616C.400
                  (equating duration of incapacity to "period"); NRS 616C.475(1) & (3)
                  (explaining how benefits "for the period of temporary total disability" are
                  calculated and what their start date is when "a claim for [a] period of
                  temporary total disability is allowed"); NRS 616C.475(7) (requiring a
                  physician's or chiropractor's certification of disability to "Wriclude the
                  period of disability"); NRS 616C.500(1) (stating the formula for calculating
                  temporary partial disability benefits and providing that they may only last
                  "for a period not to exceed 24 months during the period of disability").   Cf
                  DiPasquale v. Bd. of Review, 669 A.2d 275, 278 (N.J. Super. Ct. App. Div.
                  1996) (it is appropriate to construe the workers' compensation and
                  unemployment compensation statutes harmoniously since they are "inter-
                  related statutes designed to effect an 'employee welfare plan for
                  alleviation of wage loss' (quoting Seatrain Lines, Inc. v. Medina, 188 A.2d
                  169, 172 (N.J. 1963))).
                              NRS 612.344 uses "period of disability" much as NRS Chapter
                  616C uses the phrase. Thus, NRS 612.344(1) describes the context for its
                  base-period option as a worker's receipt of benefits for "a temporary total
                  disability or a temporary partial disability," "[m]oney for rehabilitative
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                    services," or "Hompensation pursuant to any similar federal law." After
                    requiring the unemployment benefits claim to be filed "within 3 years
                    after the initial period of disability begins," NRS 612.344(2) then specifies
                    that, to qualify, the claim must also be filed "not later than the fourth
                    calendar week of unemployment after: (a) The end of the period of
                    temporary total disability or temporary partial disability; or (b) The date
                    the person ceases to receive money for rehabilitative services, whichever
                    occurs later." (Emphasis added.) Thus, "period of disability" refers to the
                    duration of a type of disability benefit, not injury. The statute's use of
                    "whichever occurs later" confirms that NRS 612.344(2) is addressing a
                    series of potential "period of disability" types, with "initial" modifying the
                    first in the sequence. While this does not answer whether a worker can
                    have more than one "initial period of disability" over the course of his
                    career, it makes untenable the ESD's position that he may, so long as his
                    periods of disability result from discrete injuries.
                                                           D.
                                Accepting that "period of disability" refers not to injury but to
                    time off work receiving a particular type of disability benefit, the question
                    remains whether NRS 612.344(2) permits or prohibits a worker from
                    having more than one "initial period of disability" over the course of his
                    career. On this point, the statute's text can reasonably be read either way.
                    "Initial" may mean first or original, in which event the worker would have
                    only one initial period of disability, or it may mean the first in a series, in
                    which the worker could have more than one such initial period. Because
                    the statute is ambiguous, we may consult its legislative history for clues to
                    its meaning. See State v. Lucero, 127 Nev. „ 249 P.3d 1226, 1228
                    (2011); see also Las Vegas Sands Corp. v. Eighth Judicial Dist. Court, 130
                    Nev. „ 319 P.3d 618, 620 (2014) (in interpreting a statute whose
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                text is unclear, the court favors the interpretation that leads to a
                reasonable result).
                              The Legislature added NRS 612.344 to NRS Chapter 612 in
                1991. Originally, NRS 612.344 only applied to benefits for temporary total
                disability or their federal counterpart. The statute referred to "the period
                of disability" twice in one sentence, but it did not mention "initial period of
                disability" at all:
                             A person who has received compensation for a
                             temporary total disability pursuant to chapter 616
                             or 617 of NRS or any similar federal law may elect
                             a base period consisting of the first 4 of the last 5
                             completed calendar quarters immediately
                             preceding the first day of the calendar week in
                             which the disability began. An elected base period
                             may be established only if the person files a claim
                             for benefits not later than the fourth calendar week
                             of unemployment after the end of the period of
                             disability and files the claim within 3 years after
                             the period of disability begins.
                1991 Nev. Stat., ch. 60, § 1, at 120 (emphasis added). This text concerned
                the length of time the worker received temporary disability benefits before
                applying for unemployment compensation. If his temporary total
                disability period lasted longer than 3 years, then he could not use NRS
                612.344 to resurrect a 3+ year old work history as a basis for
                unemployment compensation. But nothing suggested that, if the worker
                recovered and returned to work, he could not thereafter use NRS 612.344,
                assuming he established an adequate work history, his new temporary
                total disability period lasted less than 3 years, and he timely applied for
                unemployment compensation.
                             NRS 612.344 was amended to its current, ambiguous form in
                1993. The changes to the 1991 version of NRS 612.344 are shown in
                italics (additions) and bolded brackets (deletions) below:
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                                  1. A     person         who     has     received
                             [compensation] :
                                   (a) Benefits for a temporary total disability
                             or a temporary partial disability pursuant to
                             chapter 616 or 617 of NRS [or] ;
                                  (b) Money    for    rehabilitative  services
                            pursuant to chapter 616 or 617 of NRS; or
                                   (c) Compensation pursuant to any similar
                             federal law,
                             may elect a base period consisting of the first 4 of
                             the last 5 completed calendar quarters
                             immediately preceding the first day of the
                             calendar week in which [the] his disability began.
                                  2. An elected base period may be
                            established only if the person files a claim for
                            benefits within 3 years after the initial period of
                            disability begins and not later than the fourth
                            calendar week of unemployment after [the] :
                                  (a) The end of the period of temporary total
                            disability [and files the claim within 3 years after
                            the period of disability begins.] or temporary
                            partial disability; or
                                  (b) The date he ceases to receive money for
                            rehabilitative services,
                            whichever occurs later.
                1993 Nev. Stat., ch. 248, § 3, at 536.
                            The object of the 1993 amendments to NRS 612.344 was to
                expand it to reach temporary partial disability and rehabilitative services
                in addition to temporary total disability, not to restrict its use to the 3-year
                period following a worker's first disabling injury. The ESD expressly said
                this was the reason for the amendments in the prepared testimony it
                presented to the 1993 Nevada Legislature:
                            [The object is to] provide the potential for a second
                            base period for a person on rehabilitation or
                            temporary partial disability [by] allow[ing] them
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                             to use wages earned immediately prior to the
                             disabling injury to establish an unemployment
                             insurance claim. . . .
                                    The [ESD] supports passage of this bill
                             because it provides equity for injured workers who
                             are receiving assistance from SHAS [workers'
                             compensation] in the form of rehabilitation services
                             or temporary partial disability benefits, but do not
                             have the option of an alternate base period that is
                             presently available to individuals on temporary
                             total disability.
                                   In summary, this bill makes available to an
                             injured individual an alternate base period to
                             establish benefits if it is to the claimant's
                             advantage. This is beneficial to the injured
                             worker.
                 Hearing on A.B. 436, Before the Assembly Comm. on Labor & Mgmt., 67th
                 Leg. (Nev., April 23, 1993) (emphasis added) (testimony of ESD Assistant
                 Chief of Benefits, Ross Whitacre).
                             The 1993 Legislature amended both NRS 612.185, reprinted
                 supra § I.A, and MRS 612.344(2), at the same time and as part of the same
                 bill. The 1993 amendments to NRS 612.185 further confirm our
                 understanding of the purpose of the 1993 amendments to MRS 612.344(2).
                 In its pre-1993 form, NRS 612.185(3) said only that a worker was not
                 "unemployed" for unemployment compensation purposes if he was
                 receiving "benefits for a temporary total disability." 1985 Nev. Stat., ch.
                 263, § 1, at 802. The 1993 amendment to NRS 612.185 expanded the
                 definition of not "unemployed" to reach the worker receiving benefits for
                 either temporary total or temporary partial disability or money for
                 rehabilitative services. 1993 Nev. Stat., ch. 248, § 1, at 533. This
                 expansion of the ranks of the not-"unemployed" to include those on
                 temporary partial disability or those receiving money for rehabilitative

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                 services required, in fairness, a correlative expansion of the NRS
                 612.344(2) option, so it would be available to the new categories of workers
                 being added to the definition of not-"unemployed" in NRS 612.185. But
                 nothingS in these amendments suggests a purpose of limiting the
                 alternative-calculation option NRS 612.344(2) affords to the first injury a
                 worker may sustain over the course of his career.
                                                      E.
                             Public policy and common sense also support our reading of
                 MRS 612.344(2). Unemployment compensation is designed "to soften the
                 economic burdens of those who find themselves unemployed through no
                 fault of their own by helping them to maintain purchasing power and to
                 limit the social and economic consequences of unemployment."       Kempf v.
                 Mich. Bell Tel. Co., 358 N.W.2d 378, 382 (Mich. Ct. App. 1984). Workers'
                 compensation, by contrast, is "designed to aid persons while they are
                 unable to work due to a physical disability. One is not a substitute for the
                 other." Id. (emphasis added). As the Colorado Court of Appeals noted in
                 construing its analog to NRS 612.344(2), "the statutory scheme has as its
                 purpose to harmonize the payment of benefits which an injured worker
                 may be entitled to receive under each act." Fluke v. Indus. Claim Appeals
                 Office, 799 P.2d 468, 470 (Colo. Ct. App. 1990).
                             We recognize that "the legislature is the parent of
                 unemployment benefits" and that "Nhese benefits are not inherent rights
                 of Nevada citizens." Kame v. Emp't Sec. Dep't, 105 Nev. 22, 26, 769 P.2d
                 66, 68 (1989). It makes sense to establish a limit on how far back in time
                 a claimant may reach to establish an alternate base period, since the more
                 remote the period is, the greater the record-keeping and other
                 administrative challenges. But it is difficult to fathom why a worker with


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                 a medical condition that recurs should be treated differently from one who
                 is accident-prone and suffers multiple distinct injuries, especially since the
                 law, presumably, encourages individuals to return to gainful employment
                 if they are able. As the ESD conceded at oral argument, it is not in the
                 business of evaluating the etiology of medical disorders. Its concern is the
                 proximity of the base period to the application for unemployment
                 compensation. So long as a disabled claimant's work history establishes
                 an alternate base period without having to go back more than 3 years to
                 start the period, NRS 612.344 applies.
                               For these reasons, we reverse and remand for further
                 proceedings consistent with this opinion



                                                                                      J.
                                                      Pickering

                 We concur:




                                                 j.

                 Parraguirre

                                                 J.


                                                 J.


                                                 J.
                 Saitta

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