Las Vegas POA

No Proof That Firefighter Could Control Weight By Diet And Exercising

Written on 02/28/2020
Will Aitchison

Gregg Burns is a firefighter for the City of Las Vegas. Burns filed a workers’ compensation claim after suffering a heart attack in October 2013. When the City denied the claim, several levels of appeal occurred before the case wound up in the Nevada Court of Appeals.

The key questions for the Court surrounded a Nevada statute that a firefighter meeting certain requirements is entitled to a conclusive presumption that his heart disease arose out of and in the course of his employment. The firefighter is not entitled to this presumption, however, if he fails to correct a predisposing condition which leads to heart disease when so ordered in writing by the examining physician.

In the case of Burns, following his annual physical examinations, a physician notified Burns in writing numerous times since 2009 that he was overweight, had high cholesterol, and high triglycerides, all of which are predisposing conditions for heart disease. Because the treating physician continued to make these recommendations, the City argued that Burns’ weight and cholesterol were within his ability to correct and that Burns was therefore not entitled to workers’ compensation benefits.

The Court found the City’s argument went a step too far. The Court noted that “nothing in the record, and no authority provided by the City on appeal, supports the conclusion that simply because a physician provides the employee with methods to try to correct a predisposing condition, it is therefore within the employee’s ability to correct the predisposing condition. Moreover, there is no substantial evidence in the record to indicate that Burns was capable of reducing his cholesterol, triglycerides, or weight with diet and exercise.

“To the contrary, the record indicates that, following his required annual physicals in 2010, 2011, and 2012, the physicians’ assessments and recommendations indicated Burns ‘continues to do an excellent job maintaining his health,’ that he should ‘keep up his exercise regimen, it’s doing great for him,’ and that he was ‘doing well maintaining his health.’ In 2012, the physician noted that although his ‘bad’ cholesterol and triglycerides were high, Burns was taking fish oil supplements as previously directed by his private physician and his total cholesterol was fine. Thus, the physicians’ reports indicate that Burns was doing what he was instructed to do, he was exercising and taking supplements, and despite that, his predisposing factors did not change, which reflects that he was not capable of correcting his predisposing conditions.

“Because there is no evidence in the record to support the conclusion that correcting Burns’ predisposing conditions was within his ability, we hold that he is entitled to benefits.”

City of Las Vegas v. Burns, 2019 WL 6003344 (Nevada 2019).

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