                                  129 Nevil Advance Opinion       31
       IN THE SUPREME COURT OF THE STATE OF NEVADA


CITY OF LAS VEGAS,                                    No. 59089
Appellant,
vs.
                                                                  FILED
KEVIN EVANS,                                                       MAY 0 2 2013
Respondent.
                                                                  TRACIE K LINDEMAN
                                                             CL
                                                            BY
                                                                            leSt
                                                                        SUPREM_E COURF
                                                                              i
                                                                    DEPUT   CLERK


            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 cancer-
                causing 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.




                                                                                  J.
                                                       Saitta




                Gibbons




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