FILED 

MAY 1 5 2014 

AUE K. LINDEMAN 

CHIEF DEP)G-IY CLE 

BY 

130 Nev., Advance Opinion 32 

IN THE SUPREME COURT OF THE STATE OF NEVADA 

RICKY D. ANDERSON, 

Appellant, 

vs. 

THE STATE OF NEVADA 

EMPLOYMENT SECURITY DIVISION; 

CYNTHIA A. JONES, IN HER 

CAPACITY AS ADMINISTRATOR OF 

THE EMPLOYMENT SECURITY 

DIVISION; AND KATIE JOHNSON, IN 

HER CAPACITY AS CHAIRPERSON OF 

THE EMPLOYMENT SECURITY 

DIVISION BOARD OF REVIEW, 

Respondents. 

No. 59152 

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 AndersonFintak, 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. 

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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 

period" and be "unemployed" but "able to [and] available for work." NRS 

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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. 

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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 wageloss 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 

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 

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 threeyear 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 

win. 

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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 "interrelated 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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J. 

j. 

Parraguirre 

J. 

J. 

J. 

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 

Pickering 

We concur: 

Saitta 

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