Ringel v. Virgin Valley Cab Co. ( 2015 )

 awards in order to satisfy the administrator's lien. The appeals officer
further found that Ringel was entitled to the lump-sum payment he was
offered but never accepted. Thus, the appeals officer concluded that the
$25,000 future lien had been satisfied by offsetting Ringel's permanent
partial disability and temporary total disability compensation with the
remaining permanent partial disability benefits to be paid to Ringel.
Virgin Valley petitioned for judicial review in the district
court, arguing that Ringel was not entitled to a lump-sum because he
never accepted the lump-sum offer. The district court granted in part and
denied in part judicial review of the appeals officer's decision. The district
court concluded that (1) Ringel was not entitled to a lump sum, because he
neither requested nor consented to receive the award in a lump sum; (2)
the $25,000 third-party proceeds should not have been offset against the
lump-sum award offered; Sand (3) Ringel was not entitled to temporary
total disability, permanent partial disability, and permanent total
disability benefits payable during the same time period.
Ringel now appeals. On appeal from a district court order
granting or denying a petition for judicial review, our review is the same
as the district court's: we review the appeals officer's decision for an abuse
of discretion. Vredenburg v. Sedgwick CMS, 124 Nev. 553, 557, 188 P.3d
1084, 1087 (2008). An appeals officer's determinations on pure issues of
law, however, are reviewed de novo. Roberts v. State Indus. Ins. Sys., 114
Nev. 364, 367, 956 P.2d 790, 792 (1998).
District court's jurisdiction over Virgin Valley's petition for judicial review
Ringel argues that Virgin Valley did not appeal the hearing
officer's initial determination regarding the lump sum award and the lien
issue, and thereby waived its right to challenge the appeals officer's
subsequent decision on those issues.
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We conclude that Ringel's arguments lack merit. Virgin
Valley had no reason to appeal the hearing officer's determination because
the hearing officer affirmed Virgin Valley's administrator's determination.
And, at any rate, Virgin Valley was free to raise arguments in support of
the hearing officer's determination, even if it did not separately appeal
those issues. Cf. Ford v. Showboat Operating Co., 110 Nev. 752, 755, 877
P.2d 546, 548 (1994) ("A respondent may, however, without cross-
appealing, advance any argument in support of the judgment even if the
district court rejected or did not consider the argument."). Virgin Valley
challenged the determination by which it was aggrieved—the appeals
officer's decision awarding a lump sum and permitting the possibility of
double recovery. See NRS 233B.130(1) (stating that a party is entitled to
judicial review when it is aggrieved). The district court therefore
appropriately considered Virgin Valley's petition for judicial review.
Lump-sum award
Ringel asserts that the district court erred in reversing the
appeals officer's decision to award Ringel the lump-sum offer because
election was inapplicable to the facts and circumstances of his case.
Here, the appeals officer awarded Ringel permanent partial
disability benefits in a lump-sum payment. Because the statutory
language requires a claimant to elect a lump-sum payment, which Ringel
did not do, we conclude that the appeals officer erred by awarding the
lump-sum payment and applying it as an offset to the third-party proceeds
Ringel received.
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Our interpretation of a statute begins with its text. In re State
Engineer Ruling 5823, 128 Nev., Adv. Op. 22, 277 P.3d 449, 453 (2012).
The text is construed according to its ordinary meaning. McGrath v. State
Dep't of Pub. Safety, 123 Nev. 120, 123, 159 P.3d 239, 241 (2007).
NRS 616C.495(1)(d) says that "[a]ny claimant injured on or
after July 1, 1995, may elect to receive his or her compensation in a lump
sum in accordance with regulations." "Elect" is defined as "Mlle exercise
of a choice; the act of choosing from several possible rights or remedies in a
way that precludes the use of other rights or remedies." Black's Law
Dictionary 631 (10th ed. 2014). The Legislature's use of the word "elect" in
the statute contemplates an affirmative choice by the claimant, not an
automatic disbursement of a lump-sum award. The election of a lump
sum constitutes a final settlement of all factual and legal issues and an
affirmative waiver of any legal issues regarding the claim. NRS
616C.495(2). An automatic disbursement would render superfluous the
language saying that claimants may retract or reaffirm their elections
within 20 days. See id.
It is uncontested that Ringel did not elect the lump-sum
award. Because there was no election of a lump-sum award, it was
improper for the appeals officer to award Ringel benefits in a lump sum
And without a lump-sum award, the lien could not be offset by a lump
sum.
Additionally, Ringel is incorrect that election was not required
because he would never receive his permanent partial disability award
due to the $25,000 lien. Even assuming that Ringel was not able to
receive compensation in excess of the future lien, Ringel's receipt of the
award as a lien offset is the same as his receipt of an outright payment.
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Cf. Continental Casualty Co. v. Riveras, 107 Nev. 530, 534 n.5, 814 P.2d
1015, 1018 n.5 (1991) (recognizing that the satisfaction of a subrogation
lien is a received benefit). Further, Ringers assertion that he was never
going to be paid or receive the permanent partial disability award is
meritless because it is uncontested that there was a remaining balance of
$3,820.88 if the proposed lump-sum offer had been elected and offset.
As for Ringel's argument that reversal is warranted because
the district court's order contains chronological errors, he is free to pursue
correction by motion in accordance with NRCP 60(a). And if, after Ringel's
benefits are recalculated in accordance with the district court's remand, he
is aggrieved by the determination, he may seek judicial review by the
proper procedures. See NRS 233B.130(1).
Accordingly, because the appeals officer erred in awarding
Ringel benefits in a lump sum and offsetting the lien with the award, we
affirm the district court's order granting in part judicial review.
It is so ORDERED.
C.
Douglas I.
J.
Cherry
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cc: Hon. Susan Johnson, District Judge
Janet Trost, Settlement Judge
Nevada Attorney for Injured Workers/Las Vegas
Angela D. Cartwright, Ltd.
Eighth Judicial District Court Clerk
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