Ccmsi v. Goodin ( 2014 )

 and fact-based conclusions of law, the appeals officer's decision will not be
disturbed if it is supported by substantial evidence. Manwill, 123 Nev. at
241-42, 162 P.3d at 879. "Substantial evidence is that which a reasonable
mind might accept as adequate to support a conclusion." Wright v. State,
Dep't of Motor Vehicles, 121 Nev. 122, 125, 110 P.3d 1066, 1068 (2005)
(internal quotation marks omitted).
Having considered the parties arguments and the record on
appeal, we conclude that the district court improperly substituted its
judgment in this case for that of the appeals officer. Here, the appeals
officer concluded that CCMSI properly denied Goodin's claim for heart
disease related workers' compensation benefits because, although Goodin
was a corrections officer who was generally entitled to the statutory
presumption that his heart disease arose out of and in the course of his
employment, NRS 617.457(1), he was precluded from enjoying the benefits
of that presumption insofar as he had been ordered in writing to correct
certain predisposing conditions that lead to heart disease, but he had
failed to correct these conditions even though it was within his ability to
do so. NRS 617.457(10).
In support of the appeals officer's conclusion, the record
evidence demonstrates that, in 2010 and 2011, before he was diagnosed
with heart disease, Goodin was instructed in writing by his examining
physician to correct the predisposing conditions of low HDL cholesterol
and high triglycerides, but that he failed to correct these conditions.
Moreover, the record shows that, at least with regard to his triglyceride
level, correction of the condition was within Goodin's ability, as, after
Goodin's heart disease was diagnosed, he began taking medication and his
triglyceride level then fell to within the recommended limits.
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Thus, the appeals officer's conclusion that Goodin could have
corrected his triglyceride level by consulting a primary care physician and
taking medication was supported by substantial evidence in the record.
As a result, the district court was required to defer to this conclusion. See
Manwill, 123 Nev. at 241-42, 162 P.3d at 879. And because the record
supports the appeals officer's conclusion that Goodin failed to correct a
predisposing condition that was within his ability to correct, he was not
entitled to the benefit of the presumption that his heart disease arose out
of and in the course of his work. See NRS 617.457(10). Accordingly, the
district court was required to affirm the denial of benefits, see Manw ill,
123 Nev. at 241-42,162 P.3d at 879, and we therefore
ORDER the judgment of the district court REVERSED.
it-cc J.
Hardesty
rpc, J.
Douglas
CHERRY, J., dissenting:
Because I profoundly disagree with my colleagues decision to
reverse the district court's grant of judicial review, thereby depriving
respondent, corrections officer Frank Goodin, of the benefit of NRS
617.457(10)'s presumption that his heart disease arose out of and in the
course of his employment, I must dissent.
By its terms, NRS 617.457(10) could only preclude Goodin
from enjoying the benefit of that presumption if he failed to correct a
predisposing condition that was within his ability to correct. But here,
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Goodin testified that after being ordered to improve his HDL cholesterol
and triglyceride levels, he exercised, eliminated virtually all red meat from
his diet, and began taking fish oil pills in an effort to address these
concerns. In so doing, he took all of the specific steps that the examining
physician had directed him to take in order to correct these predisposing
conditions.
While it is true that Goodin did not consult a primary care
physician, this alone cannot be dispositive to exclude him from the
benefits of NRS 617.457(10)'s presumption. The record demonstrates that
Goodin had already received the examining physician's advice on how to
improve his HDL cholesterol and triglyceride levels—advice that, as
discussed above, he fully complied with—and nothing in the record
provides any indication that another doctor would have advised him to
proceed any differently to address these issues.
In essence then, this court has opted to reverse the district
court's grant of judicial review based simply on the possibility that a
second doctor might have prescribed medications to treat these issues and
that those medications might have improved Goodin's HDL cholesterol
and triglyceride levels. But when Goodin visited another doctor regarding
an unrelated matter, he apparently asked that doctor's advice regarding
how best to address these issues and was once again told that diet and
exercise were the way to improve his conditions.
Also worth noting is that while Goodin's HDL cholesterol and
triglyceride levels did initially worsen in 2011, the record demonstrates
that these levels did, in fact, improve between 2011 and 2012. The record
further reveals that, even when Goodin began taking medication following
his 2012 cardiac episode, his HDL cholesterol had not risen to the
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recommended level when he was examined again in 2013. Despite the
improvements in Goodin's conditions between 2011 and 2012, and the
ultimate failure of his prescribed medication to bring about the necessary
improvements in his HDL levels, however, this court has opted to
reinstate the appeals officer's decision to strip Goodin of the benefits of
NRS 617.457(10)'s presumption solely because he did not seek out a
primary care physician for further advice regarding his HDL cholesterol
and triglyceride levels.
For the reasons stated herein, I believe that thefl appeals officer
clearly erred in finding that Goodin had failed to correct his predisposing
conditions within his ability to do so, and I would therefore affirm the
district court's grant of his petition for judicial review of that decision. See
NRS 233B.135(3); Manwill v. Clark Cnty., 123 Nev. 238, 241, 162 P.3d
876, 879 (2007).
cc: Hon. Abbi Silver, District Judge
Lewis Brisbois Bisgaard & Smith, LLP/Las Vegas
Edward M. Bernstein & Associates/Las Vegas
Eighth District Court Clerk
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