respondent Sedgwick CMS, the workers' compensation insurer, construed
this request as a refusal to participate in the program, and terminated
Ruiz's vocational rehabilitation benefits on that basis. On administrative
appeal, the appeals officer also affirmed, finding that Ruiz refused to
participate in the vocational rehabilitation program, allowing the insurer
to properly terminate the benefits, and Ruiz was gainfully employed at the
business his family owned. Ruiz filed a petition for judicial review, which
the district court denied. This appeal followed.
On appeal, Ruiz argues, among other things, that the appeals
officer abused her discretion by ignoring new physical restrictions limiting
him to four hours of training per day, finding that he was gainfully
employed when he was merely helping his wife at her business, and
finding that he had rejected his vocational rehabilitation benefits. The
insurer argues that substantial evidence supports the appeals officer's
finding that Ruiz refused to participate in the program and that he was
gainfully employed at the family business.
It is undisputed that Ruiz was entitled to vocational
rehabilitation benefits after his industrial injury and that these benefits
included training in another vocation. See NRS 616C.530(5) (explaining
the insurer's priority to return an injured employee to work). In the
vocational rehabilitation program at issue here, Ruiz was to attend class
or training from 10 a.m. until 4:30 p m every weekday. Although a
physician approved Ruiz's assessment period plan with a similar schedule,
that approval came two months before the establishment of the nine-
month program at issue. The record indicates that while this matter was
pending before the appeals officer, Ruiz presented a physician's note
restricting him to four hours of training at a time, which the appeals
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officer did not address when she found that Ruiz had rejected a suitable
program We conclude that the appeals officer erred by not making
findings as to whether the program was compatible with Ruiz's physical
condition. See NRS 616C.555(1). Additionally, the appeals officer made
no determinations as to the viability of Ruiz obtaining enough formal
training or education during the nine-month program to return him to
work. See NRS 616C.530(5). And because there were no findings that the
program was appropriate in light of Ruiz's physical restrictions and the
program's potential to return him to work, substantial evidence does not
support the appeals officer's determination that Ruiz rejected a suitable
program that was offered to him. See NAC 616C.601 (explaining the
conditions under which vocational rehabilitation services may be
suspended or terminated); Vredenburg v. Sedgwick CMS, 124 Nev. 553,
557, 188 P.3d 1084, 1087 (2008) (explaining that this court reviews a
workers' compensation decision for clear error or an abuse of discretion).
The appeals officer also determined that Ruiz was gainfully
employed at his family's business, which provided another basis to
terminate the vocational rehabilitation benefits. But the appeals officer
made no findings about Ruiz's potential wages from that type of work and
is not permitted to order self-employment for an injured employee. See
NRS 616C.590(1)(c) (requiring that the injured employee be unable to
return to gainful employment at a gross wage equal to or greater than 80-
percent of his gross wages at the time of injury in order to qualify for
vocational rehabilitation benefits); NRS 616C.600 (prohibiting an appeals
officer from ordering self-employment). Moreover, the insurer's assertion
that Ruiz was employed full-time is not supported by substantial evidence
in the record, which shows that Ruiz was at the store inconsistently and
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only for periods varying from three to six hours per day. See Vredenburg,
124 Nev. at 557, 188 P.3d at 1087 (defining substantial evidence).
Therefore, we conclude that the appeals officer abused her discretion by
finding that Ruiz was gainfully employed without certain findings about
his potential wages and that substantial evidence does not support a
finding that Ruiz was employed full-time at the family business. See id.
Accordingly, we reverse the district court's order denying
judicial review and remand this matter to the district court with
instructions to remand the case to the appeals officer for further
proceedings consistent with this order.
It is so ORDERED.'
J.
Parra guirre
Saitta
PICKERING, J., dissenting:
It is well settled that reviewing courts will not substitute their
judgment for the appeals officer's decisions as to factual questions and the
weight of the evidence. NRS 233B.135(3). The district court in this
matter found that substantial evidence supported the appeals officer's
decision to affirm the insurer's termination of vocational rehabilitation
'To the extent that appellant's arguments have not been expressly
addressed in this order, we conclude that those arguments lack merit.
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services for appellant and declined to substitute its judgment for the
appeals officer, and thus, it found that there was no legal error or abuse of
discretion. I agree with those conclusions, and therefore, I respectfully
dissent.
eikeHH7
tiAf J.
Pickering
cc: Hon. Brent T. Adams, District Judge
Diaz & Galt, LLC/Reno
Guinasso Law, Ltd.
Washoe District Court Clerk
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