CITY OF LAS VEGAS, 

Appellant, 

vs. 

KEVIN EVANS, 

Respondent. 

No. 59089 

FILED 

MAY 0 2 2013 

CL 

BY 

TRACIE K LINDEMAN 

SUPREM

i

_E COURF leSt 

DEPUT CLERK 

129 Nevil Advance Opinion 31 

IN THE SUPREME COURT OF THE STATE OF NEVADA 

Appeal from a district court order denying a petitio-n for 

judicial review in a workers' compensation action. Eighth Judicial District 

Court, Clark County; Joanna Kishner, Judge. 

Affirmed. 

Lewis Brisbois Bisgaard & Smith, LLP, and Daniel L. Schwartz, Las 

Vegas, 

for Appellant. 

King, Gross & Sutcliffe, Ltd., and Marvin S. Gross, Las Vegas, 

for Respondent. 

BEFORE GIBBONS, DOUGLAS and SAITTA, JJ. 

OPINION 

By the Court, SAITTA, J.: 

In this appeal, we resolve issues arising from a workers' 

compensation action brought by respondent Kevin Evans, a firefighter for 

appellant City of Las Vegas, who was diagnosed with cancer within four 

years from the commencement of his employment with the City. Evans 

filed a claim for workers' compensation benefits, asserting that his cancer 
was a compensable occupational disease that resulted from his work as a 

firefighter. 

The salient issue that we address is the relationship between 

NRS 617.440—a statute that, in conjunction with NRS 617.358, delineates 

the requirements for establishing a compensable occupational disease—

and NRS 617.453—a statute that provides for a qualified, rebuttable 

presumption that a firefighter's cancer constitutes a compensable 

occupational disease. As these statutes pertain to this matter, we address 

whether the appeals officer erred in determining that Evans could be 

awarded workers' compensation benefits upon satisfying NRS 617.440's 

requirements despite not qualifying for NRS 617.453's rebuttable 

presumption. We also address whether the appeals officer abused her 

discretion in determining that Evans' cancer was a compensable 

occupational disease under NRS 617.440. 

Based upon the statutes' plain meaning, we conclude that the 

district court did not err in denying judicial review and upholding the 

appeals officer's determination that a firefighter, such as Evans, who fails 

to qualify for NRS 617.453's rebuttable presumption can still seek 

workers' compensation benefits pursuant to NRS 617.440 by proving that 

his or her cancer is an occupational disease that arose out of and in the 

course of his or her employment. We further conclude that the appeals 

officer did not abuse her discretion in determining that Evans' cancer was 

a compensable occupational disease. 

FACTS AND PROCEDURAL HISTORY 

Evans began his employment as a firefighter for the City in 

October 2004. In this capacity, he responded to over 100 fires, which 

repeatedly exposed him to fire, smoke, and combustion byproducts. Four 

years after beginning his employment as a firefighter, Evans experienced 

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health problems which led him to undergo an MRI that revealed a brain 

tumor. Evans temporarily ceased working following the MRI. He 

underwent surgery to remove the tumor, which was diagnosed as 

cancerous, and started postoperative treatment. As a result of the 

aggressive nature of his cancer, he continued regular follow-up treatment, 

which included chemotherapy. 

Evans filed a claim with the City for workers' compensation 

benefits asserting that his cancer was a compensable occupational disease 

caused by his work-related exposure to toxic chemicals and smoke. The 

City denied the claim. 

Subsequently, Evans appealed the denial of his claim to the 

Department of Administration Hearings Division. The hearing officer 

determined that NRS 617.440, which states the requirements for proving 

a compensable occupational disease, did not apply to Evans' claim. She 

further concluded that only NRS 617.453 applied to his claim, which 

provides that a firefighter's cancer developed or manifested out of or in the 

course of employment is presumed to be a compensable occupational 

disease if he or she worked as a firefighter for five years or more and has 

met other conditions. The hearing officer affirmed the denial of the claim 

because Evans had not been employed as a firefighter for five years. 

On appeal before an appeals officer, Dr. James Melius—a 

doctor who has studied cancer in firefighters for over thirty years—and 

Dr. Paul Michael—the doctor who treated Evans and who had nearly eight 

years of experience in treating brain cancer—provided testimony that 

supported Evans' contention that his cancer resulted from his 

employment, thereby constituting a compensable occupational disease. 

The appeals officer determined that despite Evans not qualifying for NRS 

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617.453's presumption, he could still seek workers' compensation benefits 

by satisfying NRS 617.440's requirements. Upon concluding that Evans 

satisfied NRS 617.440's requirements, the appeals officer reversed the 

hearing officer's affirmation of the City's denial of Evans' claim and 

ordered the City to provide the appropriate benefits to Evans. 

The City petitioned the district court for judicial review of the 

appeals officer's decision, which the district court denied. This appeal 

followed. 

DISCUSSION 

The City argues that the appeals officer (1) erred in concluding 

that Evans could be awarded workers' compensation benefits pursuant to 

NRS 617.440 and (2) abused her discretion in determining that Evans' 

cancer was a compensable occupational disease. We disagree. 

The appeals officer did not err in concluding that Evans could be awarded 

workers' compensation benefits by satisfying NRS 617.440's requirements 

The City argues that the appeals officer erroneously applied 

NRS 617.440 to Evans' claim because NRS 617.453 expressly precludes 

Evans from seeking compensation under NRS 617.440. We disagree. 

We review an administrative decision in the same manner as 

the district court. Riverboat Hotel Casino v. Harold's Club, 113 Nev. 1025, 

1029, 944 P.2d 819, 822 (1997). Hence, questions of law, such as statutory 

interpretation, are reviewed de novo. Id.; see also Irving v. Irving, 122 

Nev. 494, 496, 134 P.3d 718, 720 (2006). 

The statutes' plain language 

"When a statute is clear and unambiguous, we give effect to 

the plain and ordinary meaning of the words . . . ." Cromer v. Wilson, 126 

Nev. 225 P.3d 788, 790 (2010). In assessing a statute's plain 

meaning, provisions are read as a whole with effect given to each word and 

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phrase. Arguello v. Sunset Station, Inc., 127 Nev. , , 252 P.3d 206, 

209 (2011). In the context of Nevada workers' compensation laws, we have 

"consistently upheld the plain meaning of the statutory scheme." SHS v. 

Prewitt, 113 Nev. 616, 619, 939 P.2d 1053, 1055 (1997). 

The plain language of the statutes at issue reveals the general 

requirements for establishing a compensable occupational disease, which 

are articulated by NRS 617.440 in conjunction with NRS 617.358, and an 

exception to these general requirements in the form of a rebuttable 

presumption under NRS 617.443. 

NRS 617.440 and NRS 617.358 articulate the general 

requirements for proving a compensable occupational disease. MRS 

617.358(1) states that an employee cannot receive compensation for an 

occupational disease unless he or she "establish[es] by a preponderance of 

the evidence that the employee's occupational disease arose out of and in 

the course of his or her employment." NRS 617.440 provides the 

requirements for proving that an occupational disease arose "out of and in 

the course of [one's] employment." NRS 617.440(1)43); see Palmer v. Del 

Webb's High Sierra, 108 Nev. 673, 674, 676, 838 P.2d 435, 435, 437 (1992). 

Both NRS 617.358(3) and NRS 617.440(5) express that their 

respective requirements do not apply to claims filed under NRS 617.453, 

which provides for a qualified, rebuttable presumption that a firefighter's 

cancer is a compensable occupational disease. NRS 617.358(3) states that 

"[t]he provisions of this section do not apply to any claim filed for an 

occupational disease described in NRS 617.453 . . . ." Similarly, NRS 

617.440(5) provides that "[t]he requirements set forth in this section do 

not apply to claims filed pursuant to NRS 617.453. ." In stating their 

respective relationships to NRS 617.453, these statutes provide nothing 

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more than the acknowledgement that one who seeks compensation under 

NRS 617.453 need not satisfy the requirements imposed by NRS 617.358 

and NRS 617.440. 

The plain language of NRS 617.453 creates an exception to 

NRS 617.358's and NRS 617.440's requirements by granting firefighters 

diagnosed with cancer who meet certain conditions a qualified, rebuttable 

presumption that their cancer is a compensable occupational disease that 

arose "out of and in the course of the[ir] employment." NRS 617.453(1), 

(5). To qualify for this presumption, one must have been employed as a 

full-time firefighter for five or more years. NRS 617.453(1)(a)(1). If one 

qualifies for NRS 617.453's presumption, then his or her Idlisabling 

cancer is presumed to have developed or manifested itself out of and in the 

course of the employment. . . [and] [t]his rebuttable presumption must 

control the awarding of benefits pursuant to this section unless evidence to 

rebut the presumption is presented." NRS 617.453(5). Pursuant to NRS 

617.358(3)'s and NRS 617.440(5)'s plain language, as addressed above, one 

who qualifies for NRS 617.453's rebuttable presumption need not satisfy 

the requirements under NRS 617.358 and NRS 617.440. 

NRS 617.453's qualified, rebuttable presumption rests upon 

certain conditions, the absence of which only results in the loss of that 

presumption. See NRS 617.453(1), (2), (5). Contrary to the City's 

argument, NRS 617.358, NRS 617.440, and NRS 617.453 lack language 

communicating that a firefighter with cancer cannot seek recovery under 

the two former statutes as a result of not qualifying for the latter statute's 

presumption. 

Here, when Evans failed to qualify for the presumption under 

NRS 617.453, he lost the benefit of that presumption but did not lose the 

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opportunity to seek workers' compensation benefits for his cancer by 

satisfying NRS 617.440's requirements for establishing a compensable 

occupational disease. 

Accordingly, we conclude that the appeals officer did not err in 

determining that Evans could be awarded workers' compensation benefits 

under NRS 617.440, and thus, the district court did not err in denying 

judicial review on this issue. The plain meaning of the statutes reveals 

that NRS 617.453 affords a firefighter a qualified, rebuttable presumption 

that his or her cancer is a compensable occupational disease and a 

firefighter who fails to qualify for this presumption can still seek workers' 

compensation benefits for his or her cancer by satisfying the requirements 

under NRS 617.440, in conjunction with NRS 617.358. 1 

'The analysis above is congruent with our analysis in Manwill v. 

Clark County, 123 Nev. 238, 162 P.3d 876 (2007). In Manwill, we 

articulated the relationship between NRS 617.358, which implicates NRS 

617.440, and NRS 617.457's conclusive presumption that a firefighter's 

heart disease is a compensable occupational disease. Id. at 242, 162 P.3d 

at 879. The language in NRS 617.358(3) and NRS 617.440(5) that bars 

the application of these statutes to claims under NRS 617.453 also 

pertains to claims under NRS 617.457. In Manwill, we stated that, 

generally, one seeking compensation for an occupational disease must 

prove that the disease "arose out of and in the course of employment" 

pursuant to NRS 617.358. 123 Nev. at 242, 162 P.3d at 879. We also 

provided that a firefighter who qualifies for NRS 617.457's presumption is 

relieved from the burden of satisfying NRS 617.358's requirements. Id. 

Thus, our analysis demonstrated that NRS 617.457 is a presumption that 

provides for an exception to the requirements under NRS 617.358 and, by 

implication, NRS 617.440. See id. Similarly, in this appeal we conclude 

that NRS 617.453's presumption is an exception to the general 

requirements under NRS 617.358 and NRS 617.440; this presumption 

does not serve as the exclusive means for a firefighter with cancer arising 

continued on next page . . . 

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The district court did not abuse its discretion in determining that Evans' 

cancer was a compensable occupational disease pursuant to NRS 617.440 

The City argues that substantial evidence does not support 

the appeals officer's conclusion that Evans' cancer constituted a 

compensable occupational disease. We disagree. 

"When a party challenges a district court's decision to 

deny a petition for judicial review of an administrative agency's 

determination, . . . [we] review the evidence presented to the agency and 

ascertain whether the agency abused its discretion by acting arbitrarily or 

capriciously." Father & Sons & a Daughter Too v. Transp. Servs. Auth. of 

Nev., 124 Nev. 254, 259, 182 P.3d 100, 103 (2008). We must not substitute 

our "judgment for that of the agency as to the weight of evidence on 

questions of fact." Schepcoff v. SIIS, 109 Nev. 322, 325, 849 P.2d 271, 273 

(1993). "We defer to an agency's findings of fact as long as they are 

supported by substantial evidence." Rio All Suite Hotel & Casino v. 

Phillips, 126 Nev. „ 240 P.3d 2, 4 (2010). "Substantial evidence 

exists if a reasonable person could find the evidence adequate to support 

the agency's conclusion. . . ." Law Offices of Barry Levinson v. Milko, 124 

Nev. 355, 362, 184 P.3d 378, 384 (2008). Moreover, we are limited to the 

record that was before the agency. NRS 233B.135(1)(b), Garcia v. Scolari's 

Food & Drug, 125 Nev. 48, 56, 200 P.3d 514, 520 (2009). 

. . . continued 

out of or in the course of employment to seek workers' compensation 

benefits. 

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NRS 617.440 provides the requirements for determining 

whether a disease arose out of and in the course of employment so as to be 

deemed a compensable occupational disease. NRS 617.440(1) states: 

An occupational disease defined in this chapter 

shall be deemed to arise out of and in the course of 

the employment if: 

(a) There is a direct causal connection 

between the conditions under which the work is 

performed and the occupational disease; 

(b) It can be seen to have followed as a 

natural incident of the work as a result of the 

exposure occasioned by the nature of the 

employment; 

(c) It can be fairly traced to the employment 

as the proximate cause; and 

(d) It does not come from a hazard to which 

workers would have been equally exposed outside 

of the employment. 

(Emphases added.) 

In proving that one's employment caused his or her disease, 

one "must show, with medical testimony, that it is more probable than not 

that the occupational environment was the cause of the acquired disease." 

Seaman v. McKesson Corp., 109 Nev. 8, 10, 846 P.2d 280, 282 (1993). 

Hence, one must show the probability of causation. Id. 

NRS 617.440(2) clarifies that "[t]he disease must be incidental 

to the character of the business and not independent of the relation of the 

employer and employee." NRS 617.440(3) further clarifies that "[t]he 

disease need not have been foreseen or expected, but after its contraction 

must appear to have had its origin in a risk connected with the 

employment, and to have flowed from that source as a natural 

consequence." 

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Here, the evidence of Evans' on-the-job exposure to 

carcinogens along with Doctor Melius's and Michael's testimony satisfied 

NRS 617.440's requirements for proving a compensable occupational 

disease. The evidence established a direct causal connection between 

Evans' cancer and his exposure to carcinogens at work. It also revealed 

that Evans' cancer arose as a natural incident of his exposure to 

carcinogens, that this exposure would not have otherwise occurred off the 

job, and that his cancer can be fairly linked to his job as the proximate 

cause. 

Based on his knowledge, expertise, research, and examination 

of Evans' medical and work records, Dr. Melius testified that, in his 

medical opinion, Evans' work as a firefighter caused his cancer. He 

asserted that Evans, as a firefighter, exposed himself to carcinogens and 

that studies reveal that being exposed to these carcinogens creates a 

higher risk of developing brain cancer. He also stated that even one single 

encounter with such carcinogens can cause cancer if the encounter is of an 

intense nature. Based upon similar grounds, Dr. Michael testified that, in 

his medical opinion, Evans' activities as a firefighter caused his cancer. In 

light of Evans' work history, which included over 100 encounters with fire 

that entailed intense exposure to carcinogens, Doctor Melius's and 

Michael's testimony established a direct causal relationship between 

Evans' cancer and his work. See NRS 617.440(1)(a). 

Dr. Melius further testified that a firefighter's brain cancer, 

such as that of Evans, can be a natural incident of a firefighter's job. He 

asserted that when fighting a fire, a firefighter unavoidably exposes 

himself or herself to the carcinogens that are present within smoke and a 

firefighter's use of protective gear does not eliminate such exposure. 

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Together with the evidence of Evans' job-related contact with carcinogens, 

Dr. Melius's testimony showed that Evans' cancer resulted from his 

unavoidable exposure to carcinogens, which was a natural incident of 

working as a firefighter. See NRS 617.440(1)(b), (2), (3). 

Finally, Dr. Melius's testimony provided that firefighters, such 

as Evans, have a higher risk of developing brain cancer than the general 

public due to the former's uniquely intense and frequent on-the-job 

exposure to cancer-causing carcinogens that are released in large amounts 

as a result of the combustion that occurs during a fire. Dr. Michael 

provided similar testimony. Doctor Melius's and Michael's testimony and 

the evidence of Evans' on-the-job exposure to carcinogens revealed that 

Evans' cancer resulted from his exposure to cancer-causing carcinogens as 

a result of firefighting and that Evans would not have been equally 

exposed to such carcinogens outside of his work. See NRS 617.440(1)(d). 

The conclusion that Evans' work as a firefighter proximately 

caused his cancer is well supported by the cumulative effect of the 

evidence and testimony. Further establishing proximate cause, Dr. 

Michael, who treated Evans and knew of his work and health history, 

expressed that, to a reasonable degree of certainty, Evans' cancer resulted 

from his exposure to carcinogens as a firefighter and not to other cancercausing substances outside of his work. See NRS 617.440(1)(c). 

Accordingly, we conclude that substantial evidence supports 

the appeals officer's conclusion that Evans' cancer was a compensable 

occupational disease. 2 See NRS 617.440(1)-(3). 

2We have considered the City's remaining contentions and conclude 

that they are without merit. 

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CONCLUSION 

The appeals officer did not err in determining that Evans 

could be awarded workers' compensation benefits under NRS 617.440. 

The plain meaning of NRS 617.453 affords firefighters a qualified, 

rebuttable presumption that their cancer is a compensable occupational 

disease, and firefighters who fail to qualify for this presumption can seek 

workers' compensation benefits for their cancer by satisfying the 

requirements under NRS 617.440, in conjunction with NRS 617.358. 

Furthermore, the appeals officer did not abuse her discretion in concluding 

that Evans' cancer was a compensable occupational disease pursuant to 

NRS 617.440. Accordingly, we affirm the district court's denial of the 

City's petition for judicial review. 

Saitta 

Gibbons 

J. 

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