Baiguen v. Harrah's Las Vegas, LLC

• Decision Date: 13 September 2018
• Docket Number: No. 70204,70204
• Parties: Israel BAIGUEN, an individual, Appellant, v. HARRAH’S LAS VEGAS, LLC, a Nevada domestic limited liability corporation, d/b/a Harrah’s Casino Hotel, Las Vegas; and Caesars Entertainment Corporation, a Nevada foreign corporation, d/b/a Harrah’s Casino Hotel, Las Vegas, Respondents.
• Court: Nevada Supreme Court

426 P.3d 586

Israel BAIGUEN, an individual, Appellant,

v.HARRAH’S LAS VEGAS, LLC, a Nevada domestic limited liability corporation, d/b/a Harrah’s Casino Hotel, Las Vegas; and Caesars Entertainment Corporation, a Nevada foreign corporation, d/b/a Harrah’s Casino Hotel, Las Vegas, Respondents.

No. 70204

Supreme Court of Nevada.

FILED SEPTEMBER 13, 2018

The Galliher Law Firm and Jeffrey L. Galliher, Las Vegas; Law Offices of Steven M. Burris, LLC, and Steven M. Burris and Adrian A. Karimi, Las Vegas, for Appellant.

Fisher & Phillips LLP and Scott M. Mahoney, Las Vegas, for Respondents.

BEFORE THE COURT EN BANC.

OPINION

By the Court, PICKERING, J.:

The Nevada workers’ compensation system provides the exclusive remedy an employee has against his or her employer for a work-related injury. This case requires us to decide whether an injury arising from an employer’s failure to provide medical assistance to an employee suffering a stroke arose out of and in the course of the employment. We hold that it did. Because an employee’s sole remedy for such an injury is workers’ compensation, we affirm summary judgment for the employer.

I.

Israel Baiguen was suffering a stroke when he arrived for work as a Harrah’s houseperson. Baiguen parked his car in the employee-only parking garage and met with coworkers on the second floor of the garage about 15 minutes before his shift. His coworkers noted that he was drooling and unresponsive to questions. He then went with a coworker to the employee-only clock-in area at the housekeeping office in the basement of Harrah’s, where he walked around disoriented, then waited in line to receive his keys and radio for his shift. While Baiguen waited for his keys and radio, his immediate supervisor asked him a question; when Baiguen did not respond, the coworker said that Baiguen was "not good." Observing that Baiguen was drooling, and that his face was drooping, the supervisor notified a manager that Baiguen was "not fine." The manager told Baiguen that he could not work, and when the coworker volunteered to help Baiguen, the manager allowed the coworker to find Baiguen a ride home.

Baiguen never left the employee-only areas of Harrah’s to begin his shift. Two coworkers on the outgoing shift drove Baiguen home, unlocked his front door for him, helped him change clothes, and then left after about 30 minutes. Baiguen remained in the apartment for two days until his girlfriend stopped by, discovered that he was unable to talk and drooling, and drove him to the hospital.

The only FDA-approved treatment for Baiguen’s type of stroke at the time was a blood-clot-busting medication called tissue plasminogen activator (t-PA). As a diabetic, Baiguen had an approximately three-hour window after exhibiting stroke symptoms for the t-PA to be administered. When timely administered, t-PA increases by 30 percent the chance that a patient will fully recover from the stroke with minimal or no disability. Even so, t-PA carries a risk of internal bleeding and death; the drug is not a guaranteed fix, but rather a way to help improve a stroke victim’s chances of recovery. Baiguen did not receive t-PA following his stroke, because he was not treated within the three-hour window.

Baiguen sued Harrah’s in district court for failure to aid him during the "golden window" of diagnostic and treatment opportunity. The district court granted summary judgment to Harrah’s, finding that Baiguen’s exclusive remedy was workers’ compensation, because the injury occurred in the workplace and arose out of his employment with Harrah’s. Baiguen appealed and the case was transferred to the court of appeals. The court of appeals reversed. We granted Harrah’s petition for review, vacated the decision of the court of appeals, and affirm the district court’s summary judgment order.

II.

We review a district court’s grant of summary judgment de novo. Wood v. Safeway, Inc., 121 Nev. 724, 729, 121 P.3d 1026, 1029 (2005). Summary judgment is appropriate if the evidence "show[s] that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." NRCP 56. "[T]he evidence, and any reasonable inferences drawn from it, must be viewed in a light most favorable to the nonmoving party." Wood, 121 Nev. at 729, 121 P.3d at 1029.

The Nevada Industrial Insurance Act (NIIA) provides the exclusive remedy for an employee against his employer when the employee sustains an injury "arising out of and in the course of the employment." NRS 616A.020(1) ; see Wood , 121 Nev. at 732, 121 P.3d at 1031 ("The NIIA provides the exclusive remedy for employees injured on the job, and an employer is immune from suit by an employee for injuries ‘arising out of and in the course of employment.’ "). In exchange for the NIIA provisions and protections, covered employees and employers give up their common law remedies and defenses for workplace injuries. NRS 616A.010(3) (workers’ compensation is "based on a renunciation of the rights and defenses of employers and employees recognized at common law"); see also Millersburg Military Inst. v. Puckett , 260 S.W.3d 339, 341 (Ky. 2008) ("Workers’ compensation is a statutory creation under which workers and employers agree to forego common law remedies/liability for workplace injuries...."). Thus, when an employee’s injury occurs within the course of the employment and arises out of the employment, the employer is liable under the NIIA, and the employee may not sue the employer in court for negligence.

A.

Baiguen argues that Harrah’s failure to respond to his stroke did not occur within the course of his employment, and therefore is not covered by workers’ compensation, because he had not clocked in yet and his symptoms prevented him from performing any work duties. "[W]hether an injury occurs within the course of the employment refers merely to the time and place of employment, i.e., whether the injury occurs at work, during working hours, and while the employee is reasonably performing his or her duties." Wood, 121 Nev. at 733, 121 P.3d at 1032. But there is no requirement that the employee actually be capable of performing job duties or be actively engaged in those job duties at the time of the injury for it to occur in the course of employment. See, e.g., Dugan v. Am. Express Travel Related Servs. Co., 185 Ariz. 93, 912 P.2d 1322, 1330 (Ct. App. 1995) (rejecting employee’s argument that she could not be in the course of employment when she was incapacitated due to a brain injury ). And even accepting Baiguen’s allegation that he did not clock in for work,¹ it remains undisputed that Baiguen was on Harrah’s premises at his regularly scheduled time to work and that he was in line to receive his radio and keys when Harrah’s approved the plan to have two coworkers drive him home.

In Mirage v. Cotton, we held that "injuries sustained on the employer’s premises while the employee is proceeding to or from work, within a reasonable time, are sufficiently connected with the employment to have occurred ‘in the course of employment.’ " 121 Nev. 396, 400, 116 P.3d 56, 58 (2005), quoting Norpac Foods, Inc. v. Gilmore, 318 Or. 363, 867 P.2d 1373, 1376 (1994). There, a woman tripped over a curb and injured her ankle walking from her employer’s parking lot to the entrance of the employer’s building ten minutes before her shift. Id. Here, Baiguen parked in the Harrah’s employee lot, walked to an area where employees typically gather before their shift, entered the back area of the building where employees clock in, and got in line to receive his radio and keys as his shift was about to begin. Under Cotton , Harrah’s alleged failure to aid Baiguen occurred in the course of Baiguen’s employment.

B.

Baiguen also argues that his injury did not arise out of his employment. An injury arises out of the employment "when there is a causal connection between the employee’s injury and the nature of the work or workplace." Wood , 121 Nev. at 733, 121 P.3d at 1032. It is not enough that an employee was at work and suffered an injury. See Rio Suite Hotel & Casino v. Gorsky , 113 Nev. 600, 605, 939 P.2d 1043, 1046 (1997) ("merely being at work and suffering an injury" is insufficient to show that the injury arose out of the employment). Rather, "the employee must show that ‘the origin of the injury is related to some risk involved within the scope of employment.’ " Rio All Suite Hotel & Casino v. Phillips, 126 Nev. 346, 350, 240 P.3d 2, 5 (2010) (quoting Mitchell v. Clark Cty. Sch. Dist., 121 Nev. 179, 182, 111 P.3d 1104, 1106 (2005) ). If the injury "is not fairly traceable to the nature of the employment or workplace environment, then the injury cannot be said to arise out of the claimant’s employment." Gorsky, 113 Nev. at 604, 939 P.2d at 1046.

1.

An employee might encounter three types of risks at work: (1) employment; (2) personal; and (3) neutral. See Phillips, 126 Nev. at 351, 240 P.3d at 5 . Employment risks arise out of the employment. Id. They are solely related to the employment and include obvious industrial injuries. Id. ; see also 1 Arthur Larson and Lex K. Larson, Larson’s Workers’ Compensation Law § 4.01, at 4-2 (rev. ed. 2017) (classic employment risks include "machinery breaking, objects falling, explosives exploding, tractors tipping, fingers getting caught in gears, excavations caving in, and so on" as well as "occupational diseases").

On the other hand, personal risks do not arise out of the employment. Phillips , 126 Nev. at 351, 240 P.3d at 6. Personal risks include injuries caused by personal conditions and illnesses, such as falling at work due to "a bad knee, epilepsy, or multiple sclerosis." Phillips, 126 Nev. at 351, 240 P.3d at 5 ; see also Larson, supra § 4.02, 4-2 (examples of personal risks include dying a natural death, the effects of disease or internal weakness, and death by "mortal personal enemy").

Finally, a neutral risk is a risk that is neither an employment risk nor a...