Workers’ compensation is a widely utilized form of insurance in the United States for employees injured during the course of their employment. Although most of the public is familiar with the general principles of workers’ compensation, the inner workings of its concepts are complex and require specialized knowledge to fully comprehend.
Nevada was one of the earliest states to adopt a set of industrial insurance laws, which included regulations governing a workers’ compensation program. Since 1913, Nevada has provided its citizens with workers’ compensation benefits. In the last 100 years, the state’s workers’ compensation laws have been in flux and have constantly changed. Because of this, courts are constantly called upon to decide matters regarding benefits for individuals injured on the job.
But what benefits are provided if someone takes it upon themselves to volunteer for a noble cause and sustains an injury in the course of their charitable action? The Nevada Supreme Court was asked that exact question earlier this year.
A Brief Background on Nevada’s Revised Statute 616A.065
Nevada’s Revised Statutes (“NRS”) are the current codified laws of Nevada. Chapter 616A of the NRS governs the administration of the state’s industrial insurance regulations. Specifically, 616A.065 defines the term “Average Monthly Wage” or “AMW” with respect to calculating “deemed wage” benefits to be received by uncompensated volunteers. NRS 616.065 provides in pertinent part:
- Except as otherwise provided in subsection 3, “average monthly wage” means the lesser of:
- The monthly wage actually received or deemed to have been received by the employee on the date of the accident or injury to the employee…; or
- One hundred fifty percent of the state average weekly wage as most recently computed by the Employment Security Division of the Department of Employment, Training and Rehabilitation during the fiscal year preceding the date of the injury or accident, multiplied by 4.33.
The Felton Case
The Nevada Supreme Court ruled on the matter of Felton v. Douglas County and Public Agency Compensation Trust on February 15, 2018. Plaintiff Gregory Felton sustained a minor injury to his knee while volunteering for a search and rescue team in Douglas County. At the time of the accident, Mr. Felton was also simultaneously employed by Hewlett-Packard as a quality control specialist. Mr. Felton filed a claim seeking workers’ compensation benefits from Douglas County’s carrier, the Public Agency Compensation Trust (PACT) as a result of the injury. A third-party claims adjuster, Alternative Service Concepts (ASC), was responsible for calculation of the “deemed wage” benefits Mr. Felton would receive as a result of his claim. ASC’s calculations were based on the wages of search and rescue volunteers, but did not include or “aggregate” wages Mr. Felton earned at Hewlett-Packard. Ultimately, ASC concluded Mr. Felton was entitled to $2,000 per month.
Mr. Felton challenged ASC’s conclusion, and argued that his deemed wage and earned wage should be aggregated, or combined. A hearing officer affirmed the amount awarded by ASC in its entirety. Mr. Felton then appealed the hearing officer’s decision, but an appeals officer affirmed the decision and held that, as a matter of law, he was not entitled to the aggregation of the wages sought.
Following the decision, Mr. Felton filed a timely petition for judicial review. In his petition, he argued the appeals officer erred as a matter of law and should have aggregated his statutorily deemed wage with his actual earned wage. The district court denied his petition. Mr. Felton then asked the Nevada Supreme Court to reconsider the denial, and the Court reversed the denial and remanded the matter to the appeals officer for remand to ASC to recalculate Mr. Felton’s benefits.
Mr. Felton’s arguments regarding aggregation of his deemed and earned wages in order to calculate his AMW were successful at the Supreme Court level for two main reasons. First, the Court analyzed NRS 616A.065 and determined the hearing officer misinterpreted the semantics of the statute. The Court determined the “or” that separates subsections (1)(a) from (1)(b) should have been given effect instead of the “or” contained within subsection (a). Although the distinction may seem trivial, the Court noted the phrase “the lesser of” is followed by a colon, making its reference to the two indented subsections that follow the colon. The effect of the distinction requires the interpreter of the statute to award the “the lesser of” the deemed wage or one hundred fifty percent of the state average weekly wage.
Second, The Court relied on the legislative history behind NRS 616C.420 and concluded an analysis of NRS 616C.447 was necessary in order to flesh out the proper reading of NRS 616A.065. NRS 616C.447 provides that if a claimant has concurrent employment, his or her AMW is “equal to the sum of the wages earned or deemed to have been earned at each place of employment.” Based on this comparison, the Court held if a volunteer has concurrent employment the claimant’s AMW shall be calculated pursuant to NRS 616C.447, subject to the maximum set forth in NRS 616.065(1)(b).
The Nevada Supreme Court recognizes the value of volunteer work. Individuals who wish to volunteer can do so without the fear of losing wages from their gainful employment should they be hurt while spending time on the greater good. The benefits provided to those injured while volunteering are derived from an average wage aggregated with their actual earned wages securing peace of mind and allowing for contributions to be made to society.