STATE INDUSTRIAL INSURANCE SYSTEM, AN AGENCY OF THE STATE OF NEVADA, APPELLANT, v. UNITED EXPOSITION SERVICES CO., RESPONDENT.
No. 22834
Supreme Court of Nevada
February 4, 1993
846 P.2d 294
Finally, Haberstroh argues that his appellate counsel, from the public defender‘s office, was ineffective for failing to raise the issue of the validity of Haberstroh‘s waiver of counsel on direct appeal. Clearly, Haberstroh‘s contention is without merit since we have determined that his waiver of the right to counsel was valid. This issue fails as a basis for determining prejudice from the efforts of appellate counsel.
For the reasons specified above, we conclude that Haberstroh knowingly and intelligently waived his right to counsel and that he was not deprived of the effective assistance of counsel. We therefore affirm the decision of the district court denying post-conviction relief.
J. Michael McGroarty, Las Vegas, for Respondent.
OPINION
By the Court, SPRINGER, J.:
In an administrative review, the trial court held that when an employer fails to follow the appeal procedures provided in
The dissenting justice is appropriately concerned about the manner in which the State Industrial Insurance System (“SIIS“) handled this claim, but this concern should not distract the court from its clear duty to decide the narrow issue presented by this appeal. The issue before us is whether an employer has administrative appeal rights in a contested worker disability case that go beyond the procedures provided in
The legislature has set up the administrative appeals process articulated in
In the present case, the facts are not in dispute, and we are presented with only the one legal issue, an issue which relates to the interpretation of statutory provisions. Questions of law are reviewed de novo. See, e.g., Arizona Bd. of Regents v. Phoenix Newspapers, 806 P.2d 348 (Ariz. 1991); M.S. v. People, 812 P.2d 632 (Colo. 1991); Crocker Nat‘l Bank v. San Francisco, 782 P.2d 278 (Cal. 1989). “[A] reviewing court may undertake independent review of the administrative construction of a statute.” American Int‘l Vacations v. MacBride, 99 Nev. 324, 326, 661 P.2d 1301, 1302 (1983). We have thus undertaken an independent review of the mentioned statutory provisions and conclude that an employer has no appeal rights in the case of a disability award other than those provided by
In the present case, United failed to appeal under
1. Any party aggrieved by a letter issued pursuant to
NRS 616.288 2 or a written decision of an employee of the system relating to employers’ accounts, including but not limited to matters concerning audits and the classification of risks, may appeal from the letter or decision by filing a notice of appeal with the manager within 30 days after the date of the letter or decision.
The only conceivable avenue for administrative review by United under
As SIIS benefits awards do not fall within the ambit of
ROSE, C. J., and YOUNG, J., concur.4
STEFFEN, J., dissenting:
With a degree of reluctance stemming from a realization that the legislature is best suited to deal with unanticipated contingencies that may seriously impact the enormously encumbered State Industrial Insurance System (“SIIS” or “the System“), I nevertheless register my dissent in the name of fundamental fairness.
At the outset, SIIS concedes that it owes a duty of good faith and fair dealing to its policyholders (the employers of Nevada who are mandated by statute to participate in the State Industrial Insurance System) and injured workers. In administering the State Industrial Insurance System, SIIS, through its manager, determines and fixes the premium rates of employer-policyholders in order to “rate each individual risk more equitably, predicated upon the basis of the employer‘s individual experience.”
It is apparent from the language of the quoted statute that the manager is enjoined to determine and fix the rate of an employer‘s premiums based upon considerations of equity and the premium-paying employer‘s individual claim experience. There is no provision in the industrial insurance statutes for the manager determining an employer‘s premium rates based upon whatever the System or the manager “can get away with.” Equity and actual, individual claim experience are the twin determinants of an employer‘s adjusted premium rates.
In the instant case, at least three factors seem clear. First, SIIS paid, and thereafter charged or will charge to United‘s account, $17,000 in rehabilitation costs for training Quaney to be a truck driver, despite the fact that he had been a professional truck driver for seventeen years. Second, despite medical findings that Quaney‘s industrial injury only temporarily aggravated a non-industrial degenerative joint disease in the lumbar spine, SIIS gave Quaney a permanent partial disability (PPD) award without even apportioning the award. Third, both the rehabilitation award and the PPD award reflect either a gross dereliction of duty by the System or a frightening degree of irresponsibility.
Simply stated, the position asseverated by SIIS is that United had no right to rely on the substantive or procedural propriety of the System‘s claims dispositions, and since United failed to
It was only after United‘s counsel attempted to ascertain why United‘s industrial insurance premium rates were skyrocketing that the facts of the instant case came to light. Having discovered that SIIS was charging to United‘s account rehabilitative and PPD payments to and on behalf of Quaney that were unwarranted by the facts and the law, United petitioned the manager to adjust its accounts so that the System‘s mistakes and derelictions were charged to administrative expense and absorbed by all employers, rather than United alone. United‘s position is both fair and conducive to establishing premium rates based upon statutorily mandated principles of equity and an employer‘s true, individual loss experience. Placing the burden of the System‘s administrative blunders on a single employer under the guise of “individual experience” is hardly equitable.
I am also unpersuaded by the System‘s contention that the burden is on the employer to visit SIIS‘s offices and study its claims files in order to determine whether an appeal from an award should be pursued. Supposing a given file is incomplete or negligently maintained or otherwise deficient because of derelictions of a magnitude present in the instant case and the employer is misled to its detriment? Or supposing the claim is proper, but the System erroneously misstates the amount of the award chargeable to the employer, thereby causing an unwarranted and mistaken increase in the employer‘s premium rate? Or supposing a claims adjuster has colluded with a claimant in order to inflate an award, and evidence of the collusion is not ascertainable from the file? In neither the instant case nor the posited hypotheticals do we find issues pertaining to discretionary determinations concerning the amount of a given award based upon competent evidence and statutory sanction. Instead, we find awards not supported by the evidence or the law; awards, in the instant case, paid by SIIS and charged to United, who will ultimately bear the burden of payment.
As indicated above, SIIS would foreclose relief to United on the premise that its only available remedy was through timely appeals to a Nevada Department of Administration hearing officer or appeals officer and, failing in that administrative process,
United‘s position is in essence a challenge to the increased premium rate it will have to pay as a result of Quaney‘s rehabilitation and PPD awards, rather than a challenge to Quaney having received the awards. The distinction may be fine, but it nevertheless exists. Quaney benefitted from awards by SIIS that appear to be unwarranted by law or fact. The resulting claim “experience” was attributable to SIIS and its maladministration rather than United. If SIIS were a private insurer for profit, Quaney‘s improper benefits would be chargeable to the insurer, rather than the employer. Unfortunately, SIIS is immune from the financial impact of its own blunders, but as long as SIIS administers the System, it seems both just and equitable that all participating employers share the financial consequences of SIIS-imposed waste rather than the inculpable single employer who would otherwise bear the burden alone.
I am unconvinced that
1. Any party aggrieved by . . . a written decision of an employee of the system relating to employers’ accounts, including but not limited to matters concerning audits and the classification of risks, may appeal from the . . . decision by filing a notice of appeal with the manager within 30 days after the date of the . . . decision.
2. The decision of the manager is the final and binding administrative determination of an appeal relating to the issuance of final certificates or employers’ accounts under this chapter, and the whole record consists of all evidence taken at the hearing before the manager and any findings of fact and conclusions of law based thereon.
(Emphasis supplied.)
As previously stated, if United were simply attempting to challenge the dollar cost of Quaney‘s benefits or the percentage of disability allowed, I would unhesitatingly agree that United‘s remedy was solely through the Department of Administration hearing and appeals officers, with final resort to judicial review and subsequent appeal to this court. However, United was willing to assume the risk that the System would be unduly liberal in adjusting Quaney‘s claims. The risk that United was not willing to assume was the utter abandonment of adherence to law and responsible claims adjusting by the System. Paying $17,000 to train Quaney to drive a truck is roughly analogous to paying $17,000 to teach the virtuoso, Caruso, how to sing. Moreover, paying a permanent partial disability award for the effect of an industrial injury that was diagnosed as temporary is almost equally indefensible. The System‘s contention that an industrial injury causing aggravation of a pre-existing condition is compensable, although true, misses the mark in Quaney‘s case. United‘s complaint concerns a permanent partial disability award that is unrelated to Quaney‘s industrial injury. Dr. Harris’ final diagnosis attributed Quaney‘s permanent disability to non-industrially related degenerative joint disease that was only temporarily aggravated by the industrial accident. The clear import of the medical report is that the entire 8% PPD is attributable to a preexisting disease unrelated to the industrial accident.
The avenue traveled by United in seeking relief from waste for which it was not responsible was eminently reasonable. Moreover, despite the majority‘s ascription of untimeliness to United‘s appeal to the manager under
I would hope that this type of case will be comparatively rare. Although United has a legitimate complaint concerning the lack of meaningful information submitted to employers by the System in connection with industrial claims, any change in the flow of data could impose significant burdens on a system already mired in logistics.1 In any event, such changes are more appropriately considered by the legislature.
For the reasons stated above, I respectfully dissent.