Fitzgeralds Casino/Hotel v. Mogg

• Decision Date: 18 November 2011
• Docket Number: No. 55818.,55818.
• Citation: 373 P.3d 913 (Table)
• Parties: FITZGERALDS CASINO/HOTEL ; and Cannon Cochran Management Services, Inc., Appellants, v. Gary MOGG, Respondent.
• Court: Nevada Supreme Court

373 P.3d 913 (Table)

FITZGERALDS CASINO/HOTEL ; and Cannon Cochran Management Services, Inc., Appellants

v.Gary MOGG, Respondent.

No. 55818.

Supreme Court of Nevada.

Nov. 18, 2011.

Lewis Brisbois Bisgaard & Smith, LLP/Las Vegas

Nevada Attorney for Injured Workers/Las Vegas

ORDER OF REVERSAL AND REMAND

This is an appeal from a district court order denying a petition for judicial review in a workers' compensation action. Eighth Judicial District Court, Clark County; Valerie Adair, Judge.

Respondent Gary Mogg was injured when he fell over in his chair as he attempted to put his feet on his desk while working. Appellants Fitzgeralds Casino/Hotel and Cannon Cochran Management Services denied respondent's workers' compensation claim. The appeals officer reversed the denial and the district court denied appellants' petition for judicial review. This appeal followed. On appeal, appellants raise two primary issues: whether respondent's injuries arose out of and in the scope of his employment, and whether respondent's conduct was barred by an implied prohibition against such conduct so as to avoid the application of the personal comfort doctrine.

Standard of review

This court, like the district court, reviews an administrative decision to determine whether it was arbitrary or capricious, and thus, an abuse of discretion. Rio All Suite Hotel & Casino v. Phillips, 126 Nev. ––––, ––––, 240 P.3d 2, 4 (2010). An agency's factual findings will be upheld when they are supported by substantial evidence. Id. “Substantial evidence is that which a reasonable mind might accept as adequate to support a conclusion.” Desert Valley Constr. v. Hurley, 120 Nev. 499, 502, 96 P.3d 739, 741 (2004) (internal quotations omitted). This court cannot substitute its judgment for that of the agency for the proper weight to be given particular evidence regarding a question of fact. Bob Allyn Masonry v. Murphy, 124 Nev. 279, 282, 183 P.3d 126, 128 (2008). Questions of law are reviewed de novo. Id.

Category of risk

Appellants contend that the appeals officer's determination that respondent's injuries arose out of and in the course of employment was not supported by substantial evidence under Mitchell v. Clark County School District, 121 Nev. 179, 111 P.3d 1104 (2005), because respondent did not establish a link between workplace conditions and how those conditions caused the injury. See id. at 181–82, 111 P.3d at 1105–06. Appellants also argue that under this court's decision in Phillips, 126 Nev. at ––––, 240 P.3d at 4–6, issued after the underlying administrative hearing and petition for judicial review, respondent was not placed at increased risk and that his own conduct caused the accident, mandating a conclusion that respondent cannot demonstrate his injuries arose out of his employment in the context of NRS 616C.150(1).¹

Respondent counters that the appeals officer's decision is correct under Phillips, in that the risk of falling out of an employer-supplied chair is an inherently employment-related risk, or, if a neutral risk, that respondent faced an increased risk of injury. Respondent also argues that under a neutral risk analysis, he faced an increased risk of injury because his work conditions and job duties required him to be seated in his employer provided chair for extended periods of time.

In Phillips, 126 Nev. at ––––, 240 P.3d at 5, this court recognized that

determining the type of risk faced by the employee is an important first step in analyzing whether the employee's injury arose out of [the employee's] employment.... Injuries resulting from employment-related risks are ‘all the obvious kinds of injur[ies] that one thinks of at once as industrial injur [ies]’.... Slips and falls that are due to employment risks include tripping on a defect at employer's premises or falling on uneven or slippery ground at the work site.

(Internal quotations and citations omitted). These types of injuries are typically compensable. Id. Where an injury is caused by a condition personal to the employee, however, such as a bad knee, epilepsy, multiple sclerosis or the like, compensation for such an injury is generally unavailable. Id.; see also Mitchell, 121 Nev. at 181 n. 7, 111 P.3d at 1106 n. 7; Rio Suite Hotel & Casino v. Gorsky, 113 Nev. 600, 604–05, 939 P.2d 1043, 1046 (1997).

Here, there was no evidence before the appeals officer that the chair used by respondent was defective, and falling over in a nondefective chair while one attempts to reposition oneself is not an obvious kind of injury that brings to mind an industrial injury. Phillips, 126 Nev. ––––, 240 P.3d at 5. Moreover, the record shows that there was no evidence before the appeals officer that respondent's fall was caused by any personal condition. Thus, respondent's injury appears to have arisen from “an unexplained fall, originating neither from employment conditions nor from conditions personal to the [employee].” Mitchell, 121 Nev. at 181 n. 7, 111 P.3d at 1106 n. 7. If respondent was not at increased risk of falling over in a nondefective chair relative to the risk the general public faces of falling out of nondefective chairs, then under Phillips the injury is noncompensable and the inquiry ends. Phillips, 126 Nev. at, 240 P.3d at 7. If respondent faced an increased risk, then the injury is compensable unless recovery is otherwise barred. Id.

Because the appeals officer failed to expressly make findings regarding the category of risk, substantial evidence does not support the appeals officer's decision. Moreover, resolving this issue requires factual findings, which are best left to the sound discretion of the appeals officer on remand. Thus, we reverse the district court's order denying judicial review on this basis.

Personal comfort doctrine and implied prohibition

Also relevant to this court's consideration is the personal comfort doctrine. Nevada has adopted the common-law personal comfort doctrine, which permits compensation under a workers' compensation scheme when an employee is injured while engaging in a reasonable activity designed for personal comfort, such a stretching or using the restroom. See Costley v. Nevada Ind. Ins. Com., 53 Nev. 219, 296 P. 1011 (1931) (holding that a miner's injuries sustained while erecting a tent on the employer's premises the day before commencing work arose out of and in the course and scope of employment); Dixon v. SIIS, 111 Nev. 994, 899 P.2d 571 (1995) (affirming workers' compensation benefits provided by employer for a worker injured on a lunch break while exercising on a bicycle). Incidental activities, such as those undertaken for personal comfort, are not compensable if they are unreasonable or extraordinary deviations. See Arp v. Parkdale Mills, Inc., 563 S.E.2d 62, 69–71 (N.C.Ct.App.2002) (Tyson, J. dissenting) (citing 2 Arthur Larson & Lex K. Larson, Larson's Worker's Compensation Law § 21.08, 21–43), rev'd, Arp v. Parkdale Mills, Inc., 576 S .E.2d 326 (N.C.2003) (resting reversal on reasons set forth in the court of appeals dissent).

Appellants argue that respondent's conduct was barred by an implied...