DAVID DELARIA v. LAS VEGAS METROPOLITAN POLICE DEPARTMENT AND CANNON COCHRAN MANAGEMENT SERVICES INC CCMSI (2023)

ORDER OF REVERSAL AND REMAND

This appeal challenges a district court order denying a petition for judicial review in a workers’ compensation matter. Eighth Judicial District Court, Clark County; Susan Johnson, Judge.¹

The underlying matter stems from appellant David Delaria's employment as a police officer with respondent Las Vegas Metropolitan Police Department. While employed with LVMPD, Delaria filed a workers’ compensation claim based on cardiovascular issues. Respondent Cannon Cochran Management Services, the administrator, denied the claim and the decision was upheld by the appeals officer, Delaria then filed a petition for judicial review, which the district court denied. Delaria now appeals.

Delaria argues that the appeals officer erred by denying his claim because LVMPD had the burden of demonstrating that he was not entitled to the conclusive presumption outlined in NRS 617.457(1)(a) for police officers with heart disease. On appeal, our role is the same as the district court's: to review “an appeals officer's decision for clear error or arbitrary abuse of discretion.” Manwill v. Clark Cty., 123 Nev. 238, 241, 162 P.3d 876, 879 (2007). “[W]e independently review the appeals officer's purely legal determinations, including those of statutory construction.” Las Vegas Metro. Police Dep't v. Holland, 139 Nev., Adv. Op. 10, 527 P.3d 958, 962 (2023) (quoting Manwill, 123 Nev. at 242, 162 P.3d at 879).

NRS 61.7.457(1)(a) provides a conclusive presumption that an officer's heart disease arises out of and in the course of the employment as an officer where the disease is “diagnosed and causes the disablement ․ [d]uring the course of that employment.” Subsection 11, however, provides that the officer is not entitled to the conclusive presumption where the officer fails “to correct predisposing conditions which lead to heart disease when so ordered in writing by the examining physician subsequent to a physical examination,” and “the correction is within the ability of the [officer].” We recently held that subsection 11 constitutes an affirmative defense. See Holland, 527 P.3d at 963. Therefore, the employer has the burden of proving “by a preponderance of the evidence” that the officer “failed to correct the predisposing condition, and ․ the correction was within the ability of the [officer].” Id. The employer cannot satisfy this burden by merely relying on a lack of evidence regarding whether the officer corrected the predisposing condition or whether it was within the officer's ability to control the condition. Id. at 964.

Here, the appeals officer did not address whether LVMPD met its burden of demonstrating that Delaria had the ability to correct his predisposing condition. Instead, the appeals officer largely highlighted Delaria's failure to show that he had attempted to correct the predisposing conditions. In doing so, the appeals officer improperly placed the burden on Delaria instead of requiring LVMPD to show that Delaria was not entitled to the conclusive presumption outlined in NRS 617.457(1)(a).² And because LVMPD did not provide any affirmative evidence that Delaria had the ability to correct his predisposing condition, much less by a preponderance of the evidence, we conclude that it failed to meet this burden. Thus, on remand, LVMPD cannot rely on NRS 617.457(11) to exclude Delaria from relying on NRS 617.457(1)(a)’s conclusive presumption. Accordingly, we

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

Stiglich, C.J.

Cadish, J.

Lee, J.

FOOTNOTES

1.   Pursuant to NRAP 34(f)(1), we have determined that oral argument is not warranted.

2.   We recognize that the appeals officer did not have the benefit of our opinion in Holland at the time the decision was made.