                                                    131 Nev., Advance Opinion         &O
                        IN THE SUPREME COURT OF THE STATE OF NEVADA


                DZIDEFO MENSAH,                                         No. 64053
                Appellant,
                vs.
                CORVEL CORPORATION,
                                                                             FILED
                Respondent.                                                  AUG 0 6 2015
                                                                           TRACIE K LINDEMAN
                                                                         CLER F SUPREME COURT

                                                                        sr     .Yer
                                                                              DEPUTY CLERK‘
                            Pro se appeal from a district court order denying a petition for
                judicial review in a workers' compensation matter. Second Judicial
                District Court, Washoe County; Jerome Polaha, Judge.
                            Reversed and remanded.

                Dzidefo Mensah, Reno, in Pro Se.

                Lewis Brisbois Bisgaard & Smith, LLP, and Jeanne P. Bawa and John P.
                Lavery, Las Vegas,
                for Respondent.




                BEFORE SAITTA, GIBBONS and PICKERING, JJ.

                                                  OPINION
                PER CURIAM:
                            In this workers' compensation case, a self-employed injured
                worker challenges an appeals officer's order that denied him temporary
                total and partial disability benefits on the basis that he could not establish
                a loss of any income without evidence of a salary. We conclude that for
                self-employed individuals, the lack of a salary associated with typical
                employment does not necessarily prevent an average monthly wage
                calculation for the purpose of determining lost income and rendering a
SUPREME COURT
        OF

     NEVADA

(0) 1947A
                                                                                      15 -234930
                workers' compensation benefit decision. Instead, the injured worker's
                earnings, which include more than just the worker's salary and should
                take into consideration a self-employed individual's business profits and
                expenses, are part of the wage determination. We therefore reverse and
                remand.
                                  FACTS AND PROCEDURAL HISTORY
                            Appellant Dzidefo Mensah was a self-employed delivery driver
                who contracted with FedEx Home Delivery for one of its delivery routes.
                Under his service contract, he was required to maintain workers'
                compensation insurance, which he did through respondent CorVel
                Corporation. While delivering packages, appellant fell and injured his
                shoulder. Appellant's workers' compensation claim for his shoulder injury
                was accepted, and he received medical treatment. He was later released
                to light-duty work, but with his physical restrictions, he could not
                complete his delivery route and instead hired a replacement driver until
                he canceled the service contract. Appellant requested temporary disability
                benefits, which were denied on the basis that he continued to receive the
                same compensation under the FedEx service contract as he did before the
                injury occurred. Appellant administratively appealed, and the appeals
                officer denied both temporary total disability benefits (TTD) and
                temporary partial disability benefits (TPD) because appellant did not
                produce any documentation showing that he had paid himself a salary of
                $1,425 per week as he claimed, and thus, any difference between his pre-
                injury and post-injury income could not be determined. The district court
                denied appellant's petition for judicial review, and this appeal followed.
                                               DISCUSSION
                            Generally, an employee who is injured by accident arising out
                of and in the course of employment is entitled to receive as TPD the
SUPREME COURT
        OF
     NEVADA
                                                      2
(0) 1947A
                   difference between the wages earned after the injury and the benefits that
                   the injured person would be entitled to receive if temporarily totally
                   disabled, when the wages are less than the amount of those benefits. NRS
                   6160.500(1). "Wages" means the amount of money that an employee
                   receives for the time the employee worked. See generally NRS 608.012(1);
                   see also Black's Law Dictionary 1610 (8th ed. 2004) (defining a "wage" as
                   Iplayment for labor or services," including "every form of remuneration
                   payable for a given period to an individual for personal services"). The
                   statutes, however, do not specifically explain how a self-employed person's
                   wages are to be calculated.
                               It is indisputable that appellant suffered an industrial injury.
                   This made him eligible to receive temporary disability benefits, calculated
                   based on any loss in wages caused by the injury. See NRS 616C.475; NRS
                   6160.500(1). The appeals officer concluded that appellant was not entitled
                   to those benefitsi because his salary could not be established from his
                   personal and corporate income tax filings and he could not produce any
                   paystubs or other evidence of a salary. But appellant was self-employed,
                   and thus, it is reasonable that he did not pay himself a salary in the
                   typical sense. See, e.g., Pratt v. Long Island Jewish Med., 915 N.Y.S.2d
                   735, 737 (App. Div. 2011) (explaining that determining the actual earnings


                          'The appeals officer's determination that appellant was not entitled
                   to TTD benefits does not appear to be challenged on appeal. Nonetheless,
                   appellant was released to light-duty work with restrictions, and therefore
                   the appeals officer did not err in concluding that appellant was not
                   entitled to TTD benefits. See NRS 616C.475(5); Amazon.com v. Magee,
                   121 Nev. 632, 636-37, 119 P.3d 732, 735-36 (2005) (explaining that when
                   an injured employee is released to work, even with restrictions, that
                   employee is no longer entitled to TTD benefits).


SUPREME COURT
       OF
    NEVADA
                                                        3
(0) 1947A csaf*o
                of a self-employed claimant may require a fact-specific analysis of the
                claimant's business and expenses);       Caparotti v. Shreveport Pirates
                Football Club, 768 So. 2d 186, 193 (La. Ct. App. 2000) ("Profits from a sole
                proprietorship should be treated in the same manner as wages.").
                            The record clearly shows that appellant received compensation
                from FedEx Home Delivery under his service contract, and he paid
                another employee to complete his delivery route during the time that he
                was medically restricted from doing so, demonstrating a loss to appellant's
                business income. And although substantial evidence supports the appeals
                officer's determination that appellant had not established that he received
                a salary from his business, see Vredenburg v. Sedgwick CMS,        124 Nev.
                553, 557 & n.4, 188 P.3d 1084, 1087 & n.4 (2008) (reviewing an appeals
                officer's fact-based decisions for substantial evidence, which "is evidence
                that a reasonable person could accept as adequately supporting a
                conclusion" (internal quotation omitted)), the appeals officer did not
                determine whether the documentation—including the Form 1099-MISC
                showing appellant's compensation from FedEx Home Delivery, the copies
                of paystubs showing wages paid to the replacement driver, and financial
                statements indicating appellant's business income and expenses—credibly
                established a loss to appellant's earnings, which may consist of more than
                just salary. See NAC 6160.420 (describing the average monthly wage as
                the "gross value of all money . . . received by an injured employee from his
                or her employment to compensate for his or her time or services"
                (emphasis added)); NAC 616C.423 (including more than just salary in the
                average monthly wage calculation); NAC 616C.432 (explaining how to
                calculate the average monthly wage); NAC 6160.441 (using an injured



SUPREME COURT
        OF
     NEVADA
                                                     4
(Oj 1947A
                worker's earnings as the basis for a wage calculation and defining
                "earnings").
                               The appeals officer therefore erred when she concluded that
                she was unable to calculate appellant's average monthly wage because he
                could not establish his salary and had thus failed to show a loss of income.
                The appeals officer should have determined the best method for
                calculating any loss to appellant's wages resulting from his industrial
                injury, taking into account both his business's income and expenses, see
                Pratt, 915 N.Y.S.2d at 737-38, and not limited her determination merely to
                what appellant, a self-employed individual, paid himself as a salary.    See
                Hartford Underwriters Ins. Co. v. Hafley, 96 S.W.3d 469, 474 (Tex. App.
                2002) (holding that where the statutes only address the income of a
                claimant who is employed by a third-party employer, the agency has the
                discretion "to choose a method for calculating the equivalent of statutory
                'wages' for a self-employed claimant," and affirming the agency's decision
                to calculate wages based on the respondent's net income).
                               Accordingly, we reverse the district court's order denying
                appellant's petition for judicial review and remand with instructions for
                the district court to remand this case to the appeals officer for a
                determination of whether the documents submitted by appellant
                adequately demonstrate a wage loss during the time he was on restricted
                duty, wherein wages include more than just salary.


                                                   -3/1:
                                          Saitta


                                                                    IC4C1
                                                               Pickering

SUPREME COURT
     OF
   NEVADA
                                                           5
(0) 1947A em
