                                                       132 Nev., Advance Opinion 2'3
                       IN THE SUPREME COURT OF THE STATE OF NEVADA


                WILLIAM POREMBA,                                        No. 66888
                Appellant,
                vs.
                SOUTHERN NEVADA PAVING; AND
                                                                               FILED
                S&C CLAIMS SERVICES, INC.,                                     APR 0 7 2016
                Respondents.

                                                                         BY
                                                                              CHIEF DEPUIVCCE


                           Appeal from a district court order denying a petition for
                judicial review in a workers' compensation matter. Eighth Judicial
                District Court, Clark County; Valorie J. Vega, Judge.
                            Reversed and remanded with instructions.

                Dunkley Law and Mark G. Losee and Matthew S. Dunkley, Henderson,
                for Appellant.

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




                BEFORE DOUGLAS, CHERRY and GIBBONS, JJ.

                                                OPINION
                By the Court, CHERRY, J.:
                            NRS 616C.215(2)(a) provides that when an injured employee
                who receives workers' compensation also recovers damages from the
                responsible party, the amount of workers' compensation benefits must be
                reduced by the amount of the damages recovered. We held in Employers
                Insurance Co. of Nevada v. Chandler, 117 Nev. 421, 23 P.3d 255 (2001),
                that an insurer may refuse to pay additional funds via reopening a
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                     workers' compensation claim until the claimant demonstrates that he or
                     she has exhausted any third-party settlement funds and that medical
                     expenses are considered to be compensation that an insurer may withhold
                     until the recovery amount has been exhausted.
                                 In this appeal, we clarify that while a claimant may exhaust
                     his or her settlement funds on medical benefits, he or she is not restricted
                     to using settlement funds on medical benefits. Although workers'
                     compensation funds may only be spent on specific expenses, such as
                     medical treatment, Nevada law does not preclude settlement funds from
                     being used to cover typical household expenses.
                                      FACTS AND PROCEDURAL HISTORY
                                 Appellant William Poremba worked for respondent Southern
                     Nevada Paving as a construction driver. On July 22, 2005, in the course of
                     his duty, Poremba was driving a truck when another driver struck the
                     truck with his backhoe. Poremba suffered injuries to his head, neck, back,
                     and knee. Poremba filed a workers' compensation claim, which Southern
                     Nevada Paving, through respondent S&C Claims (collectively S&C),               •




                     accepted. S&C eventually closed the claim, sending Poremba a letter with
                     instructions on how to reopen the claim should his condition worsen.
                                 Poremba also sued the backhoe driver and his employer. That
                     lawsuit was settled on July 30, 2009, for $63,500, with a significant
                     amount of that settlement paid directly to cover health-care providers'
                     liens. Poremba personally received $34,631.51. He spent approximately
                     $14,000 of the money he received on additional medical treatment.
                     Poremba claims to have spent the remaining settlement money on
                     personal living expenses, such as mortgage payments and food for his
                     family.

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                              Poremba attempted to return to work, but he was unable to do
                  so. Additionally, his doctors instructed him not to go back to work. On
                  January 10, 2013, Poremba sought to reopen his claim, but S&C denied
                  his request. Poremba administratively appealed, and S&C filed a motion
                  for summary judgment, arguing that our decision in Chandler precluded
                  Poremba from reopening his claim because he spent settlement funds on
                  expenses other than medical costs. After an evidentiary hearing, an
                  appeals officer summarily granted S&C summary judgment. Poremba
                  petitioned the district court for judicial review. The district court denied
                  the petition, and this appeal followed.
                                                 DISCUSSION
                              Poremba asserts that the appeals officer erred in granting
                  summary judgment because, legally, he is not required to prove that he
                  spent his excess recovery on medical expenses and because factual issues
                  exist as to whether his injury had worsened, necessitating additional
                  compensation. S&C argues that             Chandler "clearly stands for" the
                  proposition that a claimant who receives a third-party settlement may not      •




                  spend any of that money on home loans or family expenses and reopen his
                  or her workers' compensation claim when his or her medical situation
                  changes. S&C argues that the point is to prevent a double recovery,
                  asserting that double recovery means simply to recover from two sources
                  for the same injury. We disagree. Although Chandler requires a claimant
                  to exhaust all settlement funds before seeking additional funds by
                  reopening his or her workers' compensation claim, we never required that
                  those settlement funds be spent solely on medical expenses. Workers'
                  compensation is a limited-scope benefit while personal injury recoveries
                  are designed not only to pay for medical bills, but to compensate for pain
                  and suffering and provide for lost wages.
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                               This court's role in reviewing an administrative agency's
                   decision is identical to that of the district court.   Elizondo v. Hood Mach.,
                   Inc., 129 Nev., Adv. Op. 84, 312 P.3d 479, 482 (2013). Although we defer
                   to an agency's findings of fact, we review legal issues de novo, including
                   matters of statutory interpretation.       Taylor v. State, Dep't of Health &
                   Human Servs., 129 Nev., Adv. Op. 99, 314 P.3d 949, 951 (2013). We defer
                   to an agency's interpretations of its governing statutes or regulations only
                   if the interpretation "is within the language of the statute."    Id. (internal
                   quotations omitted). "It is unquestionably the purpose of worker's
                   compensation laws 'to provide economic assistance to persons who suffer
                   disability or death as a result of their employment."         Breen v. Caesars
                   Palace, 102 Nev. 79, 83, 715 P.2d 1070, 1072-73 (1986) (quoting State
                   Indus. Ins. Sys. v. Jesch, 101 Nev. 690, 694, 709 P.2d 172, 175 (1985)).
                   "This court has a long-standing policy of liberally construing these laws to
                   protect workers and their families." Id. at 83, 715 P.2d at 1073 (quoting
                   State Indus. Ins. Sys., 101 Nev. at 694, 709 P.2d at 175).
                   Whether NRS 616C.215(2) allows a claimant to reopen his or her workers'
                   compensation claim after exhausting his or her settlement funds on
                   nonmedical expenses
                               Nevada law allows an insurer to claim an offset when the
                   claimant receives money from a lawsuit against the party responsible for
                   the injury. NRS 616C.215(2). In pertinent part, the statute provides as
                   follows:
                                     2. When an employee receives an injury for
                               which compensation is payable pursuant to the
                               provisions of chapters 616A to 616D, inclusive, or
                               chapter 617 of NRS and which was caused under
                               circumstances creating a legal liability in some
                               person, other than the employer or a person in the
                               same employ, to pay damages in respect thereof:

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                                 (a) The injured employee .. may take
                           proceedings against that person to recover
                           damages, but the amount of the compensation the
                           injured employee . [is] entitled to receive
                           pursuant to the provisions of chapters 616A to
                           616D, inclusive, or chapter 617 of NRS, including
                           any future compensation, must be reduced by the
                           amount of the damages recovered. . . .
                                   (b) If the injured employee . . receive[s]
                            compensation pursuant to the provisions of
                            chapters 616A to 616D, inclusive, or chapter 617
                            of NRS, the insurer.... has a right of action
                            against the person so liable to pay damages and is
                            subrogated to the rights of the injured employee or
                            of the employee's dependents to recover therefor.
                Id. (emphasis added). On its face, this statute does not foreclose a
                claimant from pursuing reopening of his or her workers' compensation
                claim, but merely entitles the insurer to an offset based on the settlement
                the claimant received.
                            In 2001, this court held that an insurer may withhold
                payment of medical benefits until the claimant has exhausted any funds
                received from a third-party settlement.    Chandler, 117 Nev. at 426, 23

                P.3d at 258.   Chandler did not limit how the claimant may exhaust the
                settlement funds, despite S&C's assertions to the contrary. Accordingly, it
                is important to clarify Chandler and settle this issue moving forward. In
                Chandler, we held that "compensation," as specified in NRS 616C.215.
                included medical benefits. Id. We never ruled that wage replacement, or
                any other type of specific payments, were to be excluded. We concluded




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                 that Chandler had to exhaust his settlement proceeds, but we did not
                 decide how he had to exhaust those proceeds. Id.'
                             We conclude that it is prudent to clarify whether, according to
                 Chandler, medical treatment is the only expense on which one is
                 permitted to exhaust his or her settlement funds. We hold that it is not.
                             When a person is injured, he or she may sue the responsible
                 party for payment to cover a variety of costs. Restatement (Second) of
                 Torts § 924 (1979). While medical treatment is certainly among those
                 costs, a plaintiff may also recover damages for lost wages if the
                 defendant's actions prevented the plaintiff from working.     Id. These lost
                 wages, naturally, are meant to cover expenses that one's paycheck would
                 normally cover, such as rent or mortgage, utilities, and groceries.
                             S&C is correct that the policy behind NRS 616C.215 is to
                 prevent a double recovery.    Chandler, 117 Nev. at 426, 23 P.3d at 258.
                 S&C, however, mischaracterizes double recovery. Double recovery is
                 characterized based not on the event necessitating the compensation, but
                 on the nature of the compensation provided. S&C cites to              Tobin u.
                 Department of Labor & Industries, 187 P.3d 780 (Wash. Ct. App. 2008), for
                 the proposition that a claimant should not receive a double recovery as
                 well. Tobin, however, explains that double recovery prevents the claimant
                 from receiving compensation from the insurer and "retain[ing] the portion
                 of damages which would include those same elements." 187 P.3d at 783




                        'In 2007, we again held that compensation, for the purposes of
                 workers' compensation laws, includes medical benefits. Valdez Li. Emp'rs
                 Ins. Co. of Neu., 123 Nev. 170, 177, 162 P.3d 148, 152 (2007). We did not
                 limit the term "compensation" to medical benefits.

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                (internal quotations omitted). The Tobin court held that the insurer was
                only entitled to the portion of prOceeds from the third-party suit that
                correlate to the benefits it provided as a worker's compensation insurer.
                Id. at 784. The Tobin court continued:
                                     [The insurer]'s position would give it an
                              "unjustified windfall" at [the claimant]'s expense.
                              Under [the insurer]'s interpretation, it would be
                              entitled to share in damages for which it has not
                              provided and will never pay compensation. We do
                              not interpret these statutes to require such a
                              fundamentally unjust result. [The insurer] did
                              not, and will never, compensate [the claimant] for
                              his pain and suffering, therefore it cannot be
                              "reimbursed" from funds designated to compensate
                              him for his pain and suffering.
                Id (internal citations omitted) (emphasis added).
                              A worker should not receive funds from two sources to pay for
                the same lost wages or the same medical treatment. The worker, however,
                should be permitted to use settlement funds for some medical treatment,
                or reasonable lost wages expenses, and use workers' compensation funds
                for other medical treatments. 2 Poremba was hurt in July 2005, has been
                unable to work since, and sought to reopen his claim in January 2013.
                This means that he only needed to spend approximately $384.79 per
                month for the 90 months between the accident and his attempt to reopen
                his claim to exhaust the $34,631.51 in funds. Poremba does not appear to
                be trying to achieve a windfall, but to be properly using the system
                designed to pay for his workplace injuries. To deny him the opportunity to


                      2 The record is silent as to whether Poremba's third-party settlement
                was specifically allocated to cover medical expenses, pain and suffering,
                and/or lost wages or if it was simply a general lump sum.

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                 use a system designed to protect injured workers because he used some of
                 his settlement money to feed himself and his family is patently unjust and
                 not supported by the statute.
                             Accordingly, we conclude that while S&C is entitled to an
                 offset based on the settlement funds received, that offset must include any
                 reasonable living expense for which the settlement funds were used.
                 Whether the funds were used for reasonable living expenses is a factual
                 determination best made by the hearing officer, or in this case, the appeals
                 officer.
                             Because Poremba was not required to choose between
                 reasonable living expenses, such as paying for housing and food for
                 himself and his family, and seeking workers' compensation to pay for his
                 medical treatment, we must• reverse the district court's denial of judicial
                 review and instruct the district court to remand to the appeals officer for
                 further proceedings consistent with this opinion.
                 Whether the appeals officer erred when issuing a decision without detailed
                 findings of fact and conclusions of law
                             Poremba argues that the district court erred when it found no
                 improper procedure because Nevada statutes require the appeals officer's
                 order to contain findings of fact and conclusions of law, and they were
                 absent in the appeals officer's order. He further argues that without these
                 findings, it is more difficult for a court to conduct a meaningful review.
                 S&C does not refute Poremba's arguments, but merely suggests that if
                 correct, the remedy would be a remand for a more detailed order. We
                 agree that a more detailed order is required.
                             Without detailed factual findings and conclusions of law, this
                 court cannot review the merits of an appeal; thus, administrative agencies


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                are required to issue orders that contain factual findings and conclusions
                of law. NRS 233B.125. In pertinent part, the statute reads:
                                      A decision or order adverse to a party in a
                               contested case must be in writing or stated in the
                               record. . . . [A] final decision must include findings
                               of fact and conclusions of law, separately stated.
                               Findings of fact and decisions must be based upon
                               substantial evidence. Findings of fact, if set forth
                               in statutory language, must be accompanied by a
                               concise and explicit statement of the underlying
                               facts supporting the findings. 3
                Id. (emphases added). Each and every clause in this statute contains
                mandatory instruction for the appeals officer, leaving no room for
                discretion.
                               The requirements for a claimant to reopen a workers'
                compensation claim are contained within NRS 616C.390:

                                      1. If an application to reopen a claim to
                               increase or rearrange compensation is made in
                               writing more than 1 year after the date on which
                               the claim was closed, the insurer shall reopen the
                               claim if:
                                      (a) A change of circumstances warrants an
                               increase or rearrangement of compensation during
                               the life of the claimant;
                                     (b) The primary cause of the change of
                               circumstances is the injury for which the claim
                               was originally made; and




                      3 This statute was amended in 2015 and changed the standard from
                "substantial evidence" to "a preponderance of the evidence." 2015 Nev.
                Stat., ch. 160, § 7, at 708. This change does not affect this opinion.

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                                    (c) The application is accompanied by the
                             certificate of a physician or a chiropractor showing
                             a change of circumstances which would warrant
                             an increase or rearrangement of compensation.
                 (Emphasis added.) The statute is silent as to funds that the claimant
                 receives from any other source, See id.
                             Here, not only did the appeals officer fail to issue detailed
                 findings of fact or conclusions of law, the appeals officer precluded
                 Poremba from introducing evidence supporting reopening his case when
                 he admitted that he spent settlement money on expenses beyond medical
                 treatment. This illustrates that the appeals officer had the same false
                 impression of the law as do the insurers. Therefore, not only did the
                 administrative agency err when it failed to comply with NRS 233B.125's
                 mandate for detailed findings and conclusions, but because the appeals
                 officer's misunderstanding of the law prevented Poremba from presenting
                 the required evidence to reopen his claim, we are unable to review the
                 facts in this appeal. Accordingly, we must reverse and remand for an
                 evidentiary hearing and subsequent order containing detailed findings of
                 fact and conclusions of law as to whether Poremba meets the requirements
                 of NRS 616C.390, and if so, how much of an offset may S&C claim based
                 on the amount of settlement funds that Poremba used on reasonable living
                 expenses, including but not limited to medical treatment, housing, and
                 food for himself and his family.




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                                                  CONCLUSION 1
                                Accordingly, the judgment of the district court is reversed, and
                   we remand to the district court with instructions to remand to the appeals
                   officer for a new hearing and determination, consistent with this opinion.




                   We concur:




                         Voremba argued that the appeals officer improperly revived S&C's
                   motion for summary judgment. Because we conclude both that Chandler
                   does not prevent a claimant from exhausting his or her third-party
                   settlement funds on reasonable living expenses and that the appeals
                   officer's order must contain detailed factual findings and conclusions of
                   law, we decline to address this issue.

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