What Do You Think: Did Failure to Lower Cholesterol Doom Cop’s Claim for Heart Disease?

Las Vegas, NV (WorkersCompensation.com) -- Police officers in Nevada are entitled to a presumption that their heart disease arose out of and in the course of employment. Insurers and employers, however, can overcome that presumption. A recent case illustrates the steps an insurer or employer must take if it hopes to succeed.

In that case, a police officer, after experiencing chest pain, was diagnosed with obstructive coronary artery disease. His insurer denied his claim for workers' compensation benefits. He then challenged the decision in court. The trial court dismissed the claim.

The insurer and department argued that the officer’s medical records showed a doctor had warned the officer to lower his cholesterol and adopt a low-fat diet.

The records also showed that the officer’s cholesterol levels had fluctuated over time and that he had had periods where they were lower. He contended that the lower levels reflected his attempts to improve his health, but that he was ultimately unable to correct the condition.

The court pointed out that, pursuant to NRS 617.457(1), a police officer is entitled to a conclusive presumption that his heart disease arose out of and in the course of his employment and is therefore compensable. An insurer, or employer, may overcome that presumption, however, if it shows the officer failed to take corrective action when a physician orders him to do so. NRS 617.457(11).

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To establish that defense, the insurer, or employer, must show that:

1. The employee had a predisposing condition that leads to heart disease;
2. The employee was ordered in writing by the examining physician to correct the predisposing condition;
3. The employee failed to correct the predisposing condition; and
4. The condition was within his ability to correct.

Based on that defense, the trial court dismissed the case.

Was the trial court’s decision correct?
A. No. The insurer and employer failed to show the officer could have completely corrected his high cholesterol.
B. Yes. The officer could have done more to lower his cholesterol.

If you selected A, you agreed with the appeals court in Ziel v. Las Vegas Metropolitan Police Dep’t, No. 84902-COA (Nev. Ct. App. 01/19/24), which ruled that the insurer and department failed to lodge a viable defense.

The court noted that it was not enough for the insurer and employer to show the officer failed to correct the predisposing condition leading to heart disease; they also had to show that he had the ability to do so.

The court pointed out that the evidence showed the officer attempted to improve his cholesterol but was unsuccessful. Thus, the defendants failed to show that he did not try to correct his predisposing condition.

Further, there was no evidence that the officer was capable of fully lowering his total cholesterol. “To the contrary, there is evidence in the record that [the officer] attempted to reduce those levels, and despite those attempts, his predisposing factors did not fully improve, which may indicate that he was not capable of correcting his predisposing conditions,” the court wrote.

Because the insurer and employer failed to establish all elements of their affirmative defense under NRS 617.457(11), the trial court erred by dismissing the case.

The court remanded and reversed the case.

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