In reviewing the agency's decision, we apply the same
standard as the district court. See Law Offices of Barry Levinson v. Milko,
124 Nev. 355, 362, 184 P.3d 378, 383 (2008) (explaining that this court
reviews an agency decision for clear error or an arbitrary and capricious
abuse of discretion). While purely legal questions are reviewed de novo,
the appeals officer's fact-based conclusions of law are entitled to deference
when supported by substantial evidence. Id. at 362, 184 P.3d at 383-84.
Here, the appeals officer's conclusion that CCMSI did not
refuse to pay or unreasonably delay payment found due by an appeals
officer in the underlying claim litigation is based on substantial evidence.
That appeals officer order merely stated that the claim must be accepted
for "all appropriate benefits," and CCMSI consequently sent timely letters
indicating that appellant's claim was accepted, that all medical bills
should be forwarded to it, and that additional medical documentation was
needed to determine whether disability benefits were warranted.
Although appellant argues that the insurer must describe what benefits it
would and would not pay and include appeal rights, he points to no statute
so stating, and the appeals officer did not abuse her discretion in
concluding that CCMSI complied with the claim-acceptance order; NAG
6160.094 applies only when the insurer is responding to "a written
request relating to a claim." Therefore, the appeals officer's decision that
CCMSI did not refuse or delay payment of benefits found due is entitled to
deference.
Further, with regard to appellant's March 8, 2012, letter to
CCMSI, that letter did not expressly request benefits but, instead,
confirmed appellant's disability retirement date and provided appellant's
direct deposit information so that payments could be received by him
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directly. As a result, it was not an abuse of discretion to refuse to impose
a benefit penalty on CCMSI for failing to respond to the letter. Moreover,
Dr. Moazez's disability retirement report does not strictly comply with
NRS 616C.475(7), in that it does not describe the period of disability and
whether the work restrictions are permanent or temporary. While CCMSI
perhaps should have presumed this information from the circumstances,
entitlement to benefits is not now before the court, and this is not enough
to show that CCMSI intentionally failed to comply with any statute or
regulation. Accordingly, the appeals officer's decision is based on
substantial evidence and not affected by clear error. While no benefit
penalty is due under NRS 616D.120, appellant is not precluded from
seeking disability benefits. We thus
ORDER the judgment of the district court AFFIRMED.
a ft a_ax-Cr.
Parraguirr
,J.
11:
Douglas
J.
cc: Hon. Nancy L. Allf, District Judge
Persi J. Mishel, Settlement Judge
Law Offices of Virginia L. Hunt
Lewis Brisbois Bisgaard & Smith, LLP/Las Vegas
Dept of Business and Industry/
Div of Industrial Relations/Henderson
Eighth District Court Clerk
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