Morgan v. Mgm grand/mgm Resorts Int'l. ( 2014 )

 conclusions of law, the appeals officer's decision will not be disturbed if it
is supported by substantial evidence. Vredenburg, 124 Nev. at 557, 188
P.3d at 1087-88; Grover C. Dils Med. Ctr. v. Mend itto, 121 Nev. 278, 283,
112 P.3d 1093, 1097 (2005). The injured employee bears the burden to
establish by a preponderance of the evidence that the injury arose out of
and in the course of employment. NRS 616C.150
Having reviewed the parties' briefs and appendix, we conclude
that the appeals officer did not abuse her discretion in finding that
Morgan failed to establish that he sustained an industrial injury. See
Vredenburg, 124 Nev. at 557, 188 P.3d at 1087. The record demonstrates
that Morgan claimed the injury occurred on June 2, 2011, and that he
reported the incident on June 4. When Morgan later asserted that the
injury occurred on June 3, the appeals officer found his testimony not
credible. See Langman v. Nev. Adm'rs, Inc., 114 Nev. 203, 209-10, 955
P.2d 188, 192 (1998) (explaining that this court will not substitute its
judgment for that of the appeals officer regarding the weight or credibility
given to evidence). Furthermore, there were no witnesses to the alleged
injury and the surveillance video from the time frame on June 2, when
Morgan initially asserted the injury occurred, contained no indication of
any injury. The only evidence in the record that the injury occurred while
in the course and scope of employment is Morgan's own testimony.' See
id. Thus, we conclude that substantial evidence supports the appeals
'Morgan alternatively argues that the matter should be remanded to
consider the surveillance video from June 3, 2011. That video, however,
was not part of the administrative record. See NRS 233B.135(1) (limiting
judicial review to the administrative record); NRS 233B.131(2) (explaining
the process to have additional evidence considered).
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officer's determination that Morgan failed to prove that his injury arose
out of and in the course of his employment. See Wright v. State, Dep't of
Motor Vehicles, 121 Nev. 122, 125, 110 P.3d 1066, 1068 (2005) (recognizing
that substantial evidence may be inferred from the lack of certain
evidence); see also NRS 616C.150.
Accordingly, as the appeals officer did not abuse her discretion
or commit a clear error of law, we affirm the district court's order denying
Morgan's petition for judicial review.
It is so ORDERED.
, CA.
la.ozicsr
Parramirre
J.
Saitta
cc: Hon. Kenneth C. Cory, District Judge
Greenman Goldberg Raby & Martinez
Lewis Brisbois Bisgaard & Smith, LLP/Las Vegas
Eighth District Court Clerk
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