Failure to Improve Health Not Enough to Overcome Presumption
A retired police officer who continued to gain weight after his doctors told him to exercise more often and reduce his fat intake is still entitled to a statutory presumption that his heart disease arose out of and in the course of employment, the Nevada Supreme Court ruled.
In a 6-0 decision dated April 20, the high court affirmed a ruling by a Clark County judge that the Las Vegas Metropolitan Police Department failed to prove that Robert Holland was able to comply with instructions by his doctors to lower his triglyceride levels. The court said showing Holland had failed to correct a “predisposing condition” that led to heart disease was not enough.
“The record below does not include any testimony about whether correcting the predisposing condition was within Holland’s ability,” the opinion says. “Nor was there evidence to support the argument that Holland failed to take corrective action.”
Holland retired in 2012 after working for the Las Vegas police department for 25 years. In May 2019, he was hospitalized for six days after reporting chest pain. Doctors performed two procedures to improve blood flow to his heart.
While at the hospital, a cardiologist filled out a workers’ compensation claim form to request occupational disease benefits under Nevada Revised Statute 617.457. The statute creates a presumption that any heart disease contracted by law-enforcement officers was caused by their work.
The city’s claims administrator, Cannon Cochran Management Services denied the claim. Holland filed an administrative appeal. A hearing officer affirmed CCMSI’s decision, saying Holland “has a history of being told of the need to deal with predisposing factors/conditions on a continuous basis.”
Holland had been warned in 2011 and 2012 about his elevated triglyceride levels. Doctors told him to switch to a low-fat diet, exercise more and take a fish oil supplement.
When Holland was admitted to the hospital in 2019, his triglyceride levels were double what they had been in 2012. The hearing officer noted that doctors had continuously warned Holland that he had a condition that predisposed him to heart disease and that he may lose eligibility for benefits if he failed to correct it.
Holland petitioned for judicial review. Judge Tara D. Clark Newberry, with the 8th Judicial District for Clark County, reversed the denial. Newberry said Holland’s doctors had given only general instructions, not “specific and pointed advice” such as a regimented diet plan or regimented exercise routine.
The judge also found that the police department had failed to show that Holland could have reduced his triglyceride levels. The judge noted that Holland had suffered one of his heart attacks after working out at the gym, showing that he was at least trying to follow doctors’ orders.
The Supreme Court found no reason to overturn the ruling. NRS 617.457 allows an employer to overcome the presumption that a heart condition is work-related by meeting four requirements, the opinion says. First, the employer must show the employee has a predisposing condition. Second, the employee must be told in writing to correct the condition. Third, the employee must fail to correct the condition and fourth, the employee must be able to correct the condition.
The Supreme Court said the city’s claims administrator met the first three tests, but not the fourth. No evidence was submitted showing that Holland was able to lower his triglyceride level.
“The record below does not include any testimony about whether correcting the predisposing condition was within Holland’s ability,” the opinion says. “Nor was there evidence to support the argument that Holland failed to take corrective action. Instead, appellants rely solely on the lack of evidence and Holland’s lack of improvement to his triglyceride levels to show that he failed to take corrective action, but the burden was theirs, and the inference that he thus had the ability to correct the condition does not follow.”
The court affirmed the district court’s decision that found Holland eligible for workers’ compensation benefits. Justice Linda Marie Bell voluntarily recused herself from participating in the decision.