DOUG DONOVAN v. CITY OF HENDERSON AND CCMSI (2026)

AMENDED ORDER OF REVERSAL AND REMAND 1

Doug Donovan appeals from a district court order denying his petition for judicial review in a workers’ compensation matter. Eighth Judicial District Court, Clark County; Adriana Escobar, Judge.

Donovan, who was previously employed as a firefighter for respondent City of Henderson, submitted a workers’ compensation claim for a lumbar strain. Respondent CCMSI accepted the claim. After undergoing treatment, Donovan reached maximum medical improvement and was stable and ratable. In July 2021, following a permanent partial disability (PPD) evaluation, the evaluating physician assigned Donovan a ten percent impairment rating. Approximately two weeks later, CCMSI accepted the assigned impairment rating and provided Donovan with an Election of Methods (EOM) form, which gave him the option of accepting a lump sum payment equivalent to the ten percent impairment rating. On August 12, 2021, Donovan appealed CCMSI's decision to a hearing officer, asserting he was entitled to a greater impairment rating. On September 27, 2021, while Donovan's appeal to the hearing officer was pending, he completed the EOM form and requested a lump sum payment for his PPD Benefits, which the parties agree he later received. On November 29, 2021, the hearing officer held a hearing on Donovan's request for a greater PPD award.

On November 30, 2021, Donovan underwent a second PPD evaluation with a different doctor, and this doctor assigned Donovan a 32 percent impairment rating. And the next day, the hearing officer issued an order affirming CCMSI's acceptance of the ten percent impairment rating from Donovan's first PPD evaluation.

Donovan then submitted the second PPD evaluation to CCMSI and requested that his impairment rating be increased to 32 percent. CCMSI denied this request and stated that pursuant to NRS 616C.495(2), Donovan waived his right to appeal or challenge the percentage of disability by accepting the lump sum payment. Donovan then appealed the hearing officer's decision affirming the ten percent impairment rating to an appeals officer. Donovan further appealed CCSMI's decision to reject the 32 percent impairment rating to a hearing officer. The parties then stipulated to waive the hearing officer review of the 32 percent impairment rating decision and proceed directly to an appeals officer with respect to that appeal. The appeals officer then consolidated both of Donovan's appeals.

The appeals officer sent a decision letter to the parties which identified only one dispositive issue—whether NRS 616C.495 precluded Donovan from pursuing a 32 percent impairment rating after he accepted a lump sum payment based on the ten percent impairment rating. This letter, which did not contain any comparative analysis of the evidence submitted by the parties in favor of the ten percent impairment rating or the 32 percent impairment rating, instructed counsel for the City to prepare an order dismissing both appeals pursuant to NRS 616C.495(2). Notwithstanding the hearing officer's instructions, the City prepared an order that purported to affirm, or in the alternative, dismiss both appeals pursuant to NRS 616C.495. However, that order likewise did not analyze the evidence presented by Donovan in support of the 32 percent award.

Instead, the appeals officer found that because Donovan accepted the lump sum payment, he waived his right to challenge his ten percent impairment rating pursuant to NRS 616C.495(2). Specifically, the appeals offer found that “accepting a PPD award ends a Claimant's right to further litigate closure, percentage of disability, scope, the Claimant's stable and ratable status, and average monthly wage.” Further, the appeals officer rejected Donovan's position that NRS 616C.495(2)(d), which was added to NRS 616C.495(2) by an amendment ² shortly before Donovan filed his claim, expressly permitted him to accept the lump sum payment while continuing to dispute his impairment rating. The appeals officer noted that because Donovan accepted the lump sum payment in October 2021, he could not now request a 32 percent impairment rating based upon his second PPD evaluation.

Donovan then filed a petition for judicial review, reiterating that dismissal was improper under NRS 616C.495(2)(d) even though he accepted the lump sum payment. Respondents opposed, arguing dismissal was appropriate. The district court agreed that dismissal was required under NRS 616C.495(2) and entered an order denying the petition for judicial review. Donovan now appeals.

“The standard for reviewing petitions for judicial review of administrative decisions is the same for this court as it is for the district court.” City of Reno v. Bldg. & Constr. Trades Council of N. Nev., 127 Nev. 114, 119, 251 P.3d 718, 721 (2011). “Like the district court, we decide pure legal questions without deference to an agency determination.” Id. (internal quotation marks omitted). Nor do we give the district court deference when reviewing appellate challenges to district court decisions on petitions for judicial review. City of N. Las Vegas v. Warburton, 127 Nev. 682, 686, 262 P.3d 715, 718 (2011). However, we review “fact-based conclusions of law” for substantial evidence. L. Offs. of Barry Levinson, P.C. v. Milko, 124 Nev. 355, 362, 184 P.3d 378, 383-84 (2008).

On appeal, Donovan argues that NRS 616C.495(2)(d) created an exception to NRS 616C.495(2) and now allows claimants to accept a lump sum payment while continuing to dispute the appropriate impairment rating so long as the dispute was pending at the time the claimant elected to receive the lump sum payment. In response, respondents contend that NRS 6160.495(2) precludes a claimant from accepting a lump sum payment and continuing to challenge the impairment rating. Regarding NRS 616C.495(2)(d), respondents contend it “preserves the ability of a claimant to maintain certain appeals that are pending, but it does not preserve the ability of the claimant to continue to appeal the percentage of impairment after accepting a lump sum.” Respondents maintain NRS 616C.495(2)(d) should instead be read in a manner that permits a claimant to accept a lump sum payment while continuing to challenge matters unrelated to the PPD award, such as payment for lost time, while preventing claimants from challenging their impairment rating.

We review questions of statutory interpretation de novo. Martinez v. Maruszczak, 123 Nev. 433, 438, 168 P.3d 720, 724 (2007). “When interpreting a statute, we look to its plain language.” Smith v. Zilverberg, 137 Nev. 65, 72, 481 P.3d 1222, 1230 (2021). “If a statute is clear on its face, we will not look beyond its plain language.” Zhoar v. Zbiegien, 130 Nev. 733, 737, 334 P.3d 402, 405 (2014). NRS 616C.495(2) states:

If the claimant elects to receive his or her payment for a permanent partial disability in a lump sum pursuant to subsection 1, all of the claimant's benefits for compensation terminate. Except as otherwise provided in paragraph (d), the claimant's acceptance of that payment constitutes a final settlement of all factual and legal issues in the case. By so accepting the claimant waives all of his or her rights regarding the claim, including the right to appeal from the closure of the case or the percentage of his or her disability, except:

․

(d) The right of the claimant to conclude or resolve any contested matter which is pending at the time that the claimant executes his or her election to receive his or her payment for a permanent partial disability in a lump sum.

We conclude that based on the plain language of NRS 616C.495(2)(d), a claimant may accept a lump sum payment without waiving their ability to continue disputing the impairment rating so long as the dispute regarding the impairment rating was pending at the time the claimant executed the election to receive payment. The plain language of NRS 616C.495(2) expressly states that, “except as otherwise provided in paragraph (d),” acceptance of a lump sum payment constitutes a settlement of all factual and legal issues in a case. (Emphasis added.) Thus, while respondents are correct that NRS 616C.492(2) does state that acceptance of a lump sum payment operates as a final settlement, paragraph (d) operates as an exception to the rule.³ Respondents maintain, and the appeals officer agreed, that reading NRS 616C.495(2) as permitting a claimant to accept a lump sum payment and continue challenging the impairment rating renders the waiver language superfluous or otherwise results in an unharmonious reading. However, such a reading does not create a contradiction as NRS 616C.495(2) sets forth a general rule regarding the acceptance of a lump sum payment while NRS 616C.495(2)(d) provides an exception to this rule. See Arteaga v. Williams, No. 76390, 2019 WL 912743, at *1 (Nev. Feb. 20, 2019) (Order of Affirmance) (discussing that a statutory interpretation is not ambiguous or contradictory when one section sets forth the general rule and another establishes exceptions to the general rule). Thus, to the extent the appeals officer concluded that Donovan's acceptance of a lump sum payment mandated dismissal under NRS 616C.495(2), this was in error as Donovan's claims can proceed so long as he meets the exception requirements in NRS 616C.495(2)(d).

Respondents argue that even assuming NRS 616C.495(2)(d) permits claimants to continue challenging their percentage of impairment despite accepting a lump sum payment, dismissal is still warranted because Donovan had no contested claim at the time he accepted the payment. In response, Donovan contends the dispute regarding the impairment rating was pending at the time he accepted the lump sum payment.

For the exception in NRS 616C.495(2)(d) to apply, a contested matter must be pending “at the time that the claimant executes his or her election to receive his or her payment.” If there is no contested matter pending at the time a claimant executes his or her payment election, then the exception language of NRS 616C.495(2)(d) does not apply and the acceptance of a lump sum payment acts as a final settlement. We conclude that based on a review of the record, Donovan's challenge to his impairment rating, and thus his overall PPD award, was pending at the time he accepted the lump sum payment, such that NRS 616C.495(2)(d)’s exception applies to his claim. The record demonstrates that on August 12, 2021, Donovan filed an appeal of the initial PPD award. Donovan then accepted his lump sum payment for the initial PPD award on September 27, 2021. In November 2021 the parties participated in a hearing before a hearing officer and Donovan subsequently underwent a second permanent partial disability evaluation. Thus, it is clear at the time Donovan accepted the lump sum payment, there was an ongoing contested matter regarding the PPD rating, and whether he should be receiving an amount greater than the 10 percent.

Respondents further maintain that because Donovan accepted the lump sum payment, he resolved any pending contested matter related to his claim. However, we are not persuaded that acceptance of the lump sum payment necessarily resolved any pending contested matter given that NRS 616C.495(2)(d) contemplates continued litigation of pending contested matters through their resolution, even after acceptance of a lump sum payment of an undisputed amount that CCMSI agreed to pay. Thus, we conclude the appeals officer erred in dismissing, or in the alternative affirming, Donovan's consolidated appeals because there was a contested matter at the time Donovan signed his election of payment and thus NRS 616C.495(2)(d) permits Donovan to accept the undisputed amount of PPD owed to him while challenging that he was entitled to a greater amount. On remand, the appeals officer must conduct an evidentiary hearing to resolve whether Donovan is entitled to a greater PPD award.

Accordingly, we

ORDER the judgment of the district court REVERSED AND REMAND this matter to the district court with instructions to remand the case to the appeals officer for proceedings consistent with this order.⁴

Bulla, C.J.

Gibbons, J.

Westbrook, J.

FOOTNOTES

2.   2021 Nev. Stat., ch. 245 § 8, at 1197-98.

3.   Insofar as respondents contend that the language in NRS 616C.495(2), which states “by so accepting the claimant waives all of his or her rights regarding the claim, including the right to appeal from ․ the percentage of his or her disability” operates to bar Donovan's claim, we conclude subsection (d) is likewise an exception to this rule. Specifically, the full sentence reads that by accepting a lump sum payment a claimant waives his or her right to challenge “the percentage of his or her disability, except as otherwise provided in subsection (d). (Emphasis added.) Thus, so long as Donovan meets the requirements in subsection (d), he may accept the lump sum payment while continuing to challenge his percentage of disability.

4.   Insofar as the parties raise additional arguments regarding this matter, we conclude we need not reach them in light of our disposition.