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The State Industrial Insurance System v. Perez3/9/2000
FACTS
On August 19, 1995, respondent Aurelio Perez injured his back in the course and scope of his employment as a laborer with Forrest Concrete Company. Perez accepted a lump sum Permanent Partial Disability (PPD) award of $14,721.51. Thereafter, he was referred to a vocational rehabilitation program pursuant to NRS 616C.555. The program was unsuccessful, and therefore Perez claimed that he was entitled to Permanent Total Disability (PTD) status under the "odd-lot" doctrine. Perez made this request for permanent total disability in a letter from his attorney to Delia Martinez, a rehabilitation counselor with the Employers Insurance Company of Nevada (EICON). EICON did not respond to this request. Perez appealed and ultimately an appeals officer reversed EICON's de facto denial of Perez's claim for permanent total disability.
EICON contends that the appeals officer was without jurisdiction to entertain the claim for permanent total disability status because Perez failed to comply with the formal re-opening procedures required by NRS 616C.495(2) and 616C.390(4).
NRS 616C.495(2) provides:
"If the claimant elects to receive his payment for a permanent partial disability in a lump sum . . . all of his benefits for compensation terminate. His acceptance of that payment constitutes a final settlement of all factual and legal issues in the case.
By so accepting he waives all of his rights regarding the claim, including the right to appeal from the closure of the case or the percentage of his disability, except:
(a) His right to reopen his claim according to the provisions of NRS 616C.390; and
(b) Any counseling, training or other rehabilitative services provided by the insurer."
NRS 616C.390(4) provides:
". . . f an application to reopen a claim is made in writing within 1 year after the date on which the claim was closed, the insurer shall reopen the claim only if:
(a) The application is supported by medical evidence demonstrating an objective change in the medical condition of the claimant; and
(b) There is clear and convincing evidence that the primary cause of the change of circumstances is the injury for which the claim was originally made. (Emphasis added.)"
EICON contends that the appeals officer had no jurisdiction to consider the claim for permanent total disability because Perez failed to seek re-opening via the formalities required by NRS 616C.495(2) and that Perez's letter seeking re-opening was deficient because it made no reference to any medical evidence. EICON also contends that, to the extent that the letter is treated as initiating a formal re-opening process, there was no objective medical evidence to support re-opening.
DISCUSSION
The construction of a statute is a question of law which this court reviews de novo. See Maxwell v. SIIS, 109 Nev. 327, 329, 849 P.2d 267, 269 (1993).
There is no question that Perez did not include supporting medical evidence in his request for a change from permanent partial disability to permanent total disability as is specified in NRS 616C.390(2). However, total disability claims may have non-medical, as well as medical components. After accepting his permanent partial disability award, Perez was evaluated for vocational rehabilitation. The results showed that he had low vocational aptitudes, a third-grade education and little English. At his request, he was nevertheless referred to vocational programs, but was unsuccessful in developing a rehabilitation plan.
The appeals officer made the following findings:
"21. That the t
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