137 Nev., Advance Opinion 71 

IN THE SUPREME COURT OF THE STATE OF NEVADA 

CITY OF HENDERSON; AND CCMSI, 

Appellants, 

vs. 

BRIAN WOLFGRAM, AN INDIVIDUAL, 

Respondent. 

No. 80982 

FILE 

DE 2 3 2021 

EU A. BROWN 

CL 0 PR CURT 

BY 

DEPUTY CLERK 

Appeal from a district court order denying a petition for judicial 

review in a workers compensation matter. Eighth Judicial District Court, 

Clark County; William D. Kephart, Judge. 

Affirmed. 

Lewis Brisbois Bisgaard & Smith, LLP, and Daniel L. Schwartz and Joel P. 

Reeves, Las Vegas, 

for Appellants. 

Greenman Goldberg Raby & Martinez and Jason D. Mills, Las Vegas, 

for Respondent. 

BEFORE HARDESTY, C.J., STIGLICH, J., and GIBBONS, Sr. J.1 

1The Honorable Mark Gibbons, Senior Justice, participated in the 

decision of this matter under a general order of assignment. 

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OPINION 

By the Court, HARDESTY, C.J.: 

Nevada's workers compensation statutes place limitations on a 

claimanes ability to reopen a closed claim. One limitation is that a claimant 

must file an application to reopen a claim within one year of the claim's 

closing unless the injury incapacitated the claimant from earning "full 

wages" for a specified amount of time. NRS 616C.400(1); see NRS 

616C.390(4)-(5). In this case, we are asked to determine whether 

respondent's inability to earn overtime due to his industrial injury equates 

to being incapacitated from earning "full wages," such that he can seek to 

reopen his claim more than one year after its closing. For the reasons stated 

below, we agree with the district court and appeals officer that respondent 

was incapacitated from earning "full wages" and therefore affirm the order 

denying the employer and its insurer's petition for judicial review.2 

FACTS AND PROCEDURAL HISTORY 

While working for appellant City of Henderson as a firefighter, 

respondent Brian Wolfgram filed a workers' compensation claim for issues 

related to his hands and elbows. The City, via its insurer, appellant CCMSI 

(collectively, the City), accepted the claim. During Wolfgram's medical 

treatment, his doctor placed him on light-duty restrictions for a little more 

than two weeks. While the City paid Wolfgram his normal base salary 

during that time, it prohibited him from volunteering for overtime. 

Wolfgram sought no other benefits, and his claim closed on January 26, 

2015. 

2Pursuant to NRAP 34(f)(1), we have determined that oral argument 

is not warranted in this appeal. 

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On February 6, 2017, based on medical advice that his hand 

and elbow issues may be recurring, Wolfgram requested to reopen his claim. 

The City denied the request and Wolfgram appealed. The appeals officer 

ultimately found that Wolfgram's inability to earn overtime while on light 

duty meant that he was incapacitated from earning full wages for the time 

specified under NRS 616C.400(1). And, because Wolfgram satisfied NRS 

616C.400(1)s period of incapacitation, the appeals officer concluded that 

NRS 616C.390(5) permitted Wolfgram to submit an application to reopen 

his claim more than a year after it had closed, otherwise referred to as 

"lifetime reopening rights." However, due to a lack of supporting medical 

evidence, the appeals officer denied Wolfgram's request to reopen his claim 

at that time. The City petitioned for judicial review of the appeals officer's 

finding that Wolfgram's inability to earn overtime while on light duty meant 

that he had not earned his full wages under NRS 616C.400(1). The district 

court denied judicial review after a hearing, concluding that Nevada law 

provided overwhelming support for the appeals officer's decision. The City 

now appeals. 

DISCUSSION 

We, like the district court, review administrative agency 

decisions "for clear error or an arbitrary and capricious abuse of discretion" 

and defer to an agency's findings of fact and "fact-based conclusions of 

law . . . if they are supported by substantial evidence." Law Offices of Barry 

Levinson, P.C. v. Milko, 124 Nev. 355, 362, 184 P.3d 378, 383-84 (2008) 

(citation and internal quotation marks omitted). "Substantial evidence 

exists if a reasonable person could find the evidence adequate to support the 

agency's conclusion." Id. at 362, 184 P.3d at 384; see also NRS 233B.135(3)-

(4) (defining substantial evidence and discussing judicial review of agency 

decisions). We review purely legal questions, such as statutory 

3 
interpretation issues, de novo. City of N. Las Vegas u. Warburton, 127 Nev. 

682, 686, 262 P.3d 715, 718 (2011). 

The City argues that the appeals officer erred in concluding 

Wolfgram did not receive his "full wages" under NRS 616C.400(1) because 

he received the entirety of his base pay while on light duty. It asserts that 

overtime is voluntary and therefore speculative and points out that 

Wolfgram never made a claim for lost wages. Wolfgram responds that the 

appeals officer's decision is a correct statement of the law and supported by 

substantial evidence. He further asserts that it does not matter if overtime 

was voluntary when the record shows that he regularly worked overtime 

immediately before the injury and that the City prohibited him from 

working overtime while on light duty. 

NRS 616C.390 addresses the reopening of closed workers' 

compensation claims. As pertinent here, the statute provides that a 

claimant must seek to reopen a claim "within 1 year after the date on which 

the claim was closed if . . . [t] he claimant did not meet the minimum 

duration of incapacity as set forth in NRS 616C.400 as a result of the 

injury." NRS 616C.390(5)(a). If the claimant meets NRS 616C.400s 

minimum duration of incapacitation, however, then an insurer must reopen 

the claim, despite more than a year passing since its closing, if the claimant 

meets other enumerated criteria. NRS 616C.390(5) ("If an application to 

3The statute sets forth conjunctive requirements. If a claimant fails 

to meet the minimum duration of incapacity and did not receive a 

permanent partial disability rating, he must seek to reopen the claim within 

one year. NRS 616C.390(5)(a)-(b). The parties agree that Wolfgram did not 

receive a permanent partial disability rating for his claim but dispute 

whether he met the minimum duration of incapacity. 

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reopen a claim . . . is made pursuant to this subsection, the insurer shall 

reopen the claim if the requirements set forth in . . . subsection 1 are met."). 

NRS 616C.400(1) sets forth the minimum duration of 

incapacitation as when "an injury. . . incapacitate[s] the employee for at 

least 5 consecutive days, or 5 cumulative days within a 20-day period, from 

earning full wages." Both parties present reasonable arguments as to 

whether "full wages" includes the ability to earn overtime, and we therefore 

conclude the statute is ambiguous in this respect.4 See Banegas v. State 

Indus. Ins. Sys., 117 Nev. 222, 225, 19 P.3d 245, 247 (2001) (holding that a 

statute is ambiguous if it "is susceptible to more than one natural or honest 

interpretation"). We therefore will construe it "consistently with what 

reason and public policy would indicate the Legislature intended," as "the 

Legislature's intent is the controlling factor." Id. And we will avoid 

constructions that would lead to an absurd result. Gallagher v. City of Las 

Vegas, 114 Nev. 595, 599-600, 959 P.2d 519, 521 (1998) (holding that the 

interpretation "should be in line with what reason and public policy would 

indicate the [L] egislature intended, and should avoid absurd results"). 

"[F]ull wages" is not defined in the workers compensation 

statutes or in the Nevada Administrative Code, and the phrase predates 

any available legislative history. We faced a similar lack of legislative 

history in interpreting a workers' compensation statute in Banegas. 117 

Nev. at 226, 19 P.3d at 247-48 (noting that the statutory language before 

the court "remain[ed] largely unchanged since the original industrial 

4The parties agree that the time period within which the City 

prohibited Wolfgram from earning overtime exceeded 5 days within a 20-

day period. See NRS 616C.400(1). We therefore need not address that 

portion of the statute. 

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insurance statutes were adopted in 1913" and that committee minutes 

related to the statutory provision were "virtually nonexistent"). Regardless, 

we concluded in Banegas that we could still discern the Legislatures intent 

behind the language at issue "by reviewing the [statutory scheme] as a 

whole." Id. at 228, 19 P.3d at 249. We take the same approach to confront 

the statutory interpretation issue in this case. 

To that end, we find the definitions of "[w]ages" and "average 

monthly wage in the workers compensation scheme informative. The 

statute addressing the reopening of claims defines "[w]ages" as "any 

remuneration paid by an employer to an employee to include 

"[c]ommissions and bonuses." NRS 616C.390(11)(c)(1). This suggests that 

"full wages" may include more than just an employees base pay. Similarly, 

NAC 616C.420 defines a claimant's "average monthly wage as "the total 

gross value of all money, goods and services received by an injured employee 

from his or her employment to compensate for his or her time or services." 

(Emphasis added.) And NAC 616C.423(1)(n) explicitly includes 

"[p]ayment[s] for overtime as money that must be included when 

calculating an employees "average monthly wage." See also NRS 

233B.040(1)(a) (providing that the Nevada Administrative Code has "the 

force of law"); Banegas, 117 Nev. at 227, 19 P.3d at 248 (recognizing that 

"the Legislature may authorize administrative agencies to make rules and 

regulations supplementing legislation"). To conclude that "full wages" as 

used in NRS 616C.400(1) is always limited to the employees base pay would 

therefore be contrary to how "wages" is used elsewhere in the statutory 

scheme, leading to an absurd result. It appears, instead, that the 

Legislatures intent was that "full wages" could include more than just a 

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claimant's base pay. We therefore hold that "full wages" as used in NRS 

616C.400(1) can include overtime pay. 

We now turn to the appeals officer's conclusion that Wolfgram's 

injury incapacitated him from earning full wages within the meaning of 

NRS 616C.400(1) because he could not work overtime. Despite overtime 

being voluntary, the City does not dispute that it precluded Wolfgram from 

working overtime while he was on light duty due to his injury. And evidence 

in the record shows that, in the 12 weeks preceding his industrial injury, 

Wolfgram worked 96 hours of overtime, making up approximately 15 

percent of his pay in that time period.5This constitutes substantial 

evidence supporting the appeals officer's conclusion that Wolfgram 

regularly worked overtime in the time period immediately preceding his 

injury such that, by not being able to work overtime while on light duty, he 

was incapacitated from earning his full wages. See Law Offices of Barry 

Levinson, 124 Nev. at 362, 184 P.3d at 384; see also Look's Case, 185 N.E.2d 

626, 628 (Mass. 1962) (holding that an injury incapacitates an employee 

when it causes "an impairment of earning capacity" and, thus, the question 

is whether the record supports a finding that the employee's "injury has 

lessened his ability to work"); Phipps v. Campbell, Wyant & Cannon 

Foundry, Div. of Textron, Inc., 197 N.W.2d 297, 305-06 (Mich. Ct. App. 1972) 

(holding, under a similar statute, that an employee did not earn full wages 

when his average daily wage decreased during the period of incapacitation). 

5This would be the time period used to calculate a claimanes average 

monthly wage. See NAC 616C.435(1) (providing that, generally, "a history 

of earnings for a period of 12 weeks must be used to calculate an average 

monthly wage"). 

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, C.J. 

Hardesty 

Accordingly, the appeals officer did not err in concluding that Wolfgram had 

lifetime reopening rights for his claim. 

CONCLUSION 

We conclude that the Legislature intended that "full wages" as 

used in NRS 616C.400(1) may include payments for overtime. And, because 

substantial evidence otherwise supports the appeals officer's findings in 

this case, we affirm the district court's order denying the petition for judicial 

review. 

We concur: 

4

414Cm.-0 J. 

Stiglich 

Sr. J. 

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