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Vegas blackjack dealer owed workers' comp, Nev. SC rules

By Jessica M. Karmasek | Oct 7, 2010


CARSON CITY, Nev. (Legal Newsline) - The Nevada Supreme Court has upheld the ruling of a lower court, denying a petition for judicial review in a workers' compensation case involving a Las Vegas blackjack dealer.

At issue is whether the dealer's injury, which occurred on a staircase at the Rio All Suite Hotel & Casino, arose "out of the scope" of her employment.

The Court, in its Sept. 30 opinion, said in situations in which an employee's injury is caused by a neutral risk -- a risk that is not personal to the employee or solely employment-related -- it must adopt the increased-risk test, which evaluates whether the employee was exposed to a risk greater than that faced by the general public.

If so, then the employee's injury is deemed to have arisen out of his or her employment.

Phillips was employed for 17 years by the Las Vegas casino, as a poker and blackjack dealer.

In October 2006, Phillips was working her usual eight-hour shift. Upon taking her first 20-minute break of the day, she started walking down the stairs that led to the employees' break room.

She grabbed the handrail with her right hand, took a step down with her right foot and then, according to Phillips, the accident occurred as follows:

"(W)hen I stepped down on my left foot, it just twisted over... I never missed a step. I just sat down on the stair that my butt was on, which was a couple up from it. But, my leg just was sitting there. I didn't lose my balance. I didn't even slip at all. Just that foot twisted around," she said in court documents.

The Court noted that Phillips did not contend that the stairs were defective or contained debris.

Phillips was subsequently transported to the hospital, where x-rays revealed that she fractured her ankle.

The following day, she was evaluated at Concentra Medical Centers and filled out a workers' compensation claim form. On the form, the treating physician indicated that Phillips' injury was work-related. A few days later, Phillips underwent surgery to repair her ankle.

Then, in November 2006, Rio's third-party administrator, Sedgwick CMS, denied Phillips' workers' compensation claim because she did not "prove by a preponderance of the evidence that (her) injury arose out of the course of (her) employment."

Phillips requested a hearing before the Nevada Department of Administration, Hearings Division.

Citing a previous state Supreme Court decision, the hearing officer affirmed Sedgwick's determination, stating that "the claim is not compensable under workers' compensation."

Phillips appealed the hearing officer's decision. The appeals officer reversed the hearing officer's decision and found that Phillips established that she "was injured in the course and scope of her employment."

The appeals officer found that Phillips' case was "distinguishable" from the Court case cited because Phillips' injury did not result from an "unexplained fall."

Rio and Sedgwick filed a petition for judicial review of the appeals officer's decision.

A Clark County district court entered an order denying Rio and Sedgwick's petition for judicial review, finding that the appeals officer's decision did not violate Nevada law, relating to the standard of review of an agency's decision. Rio and its third-party administrator then filed an appeal with the state Supreme Court.

Justice James W. Hardesty, who authored the Court's opinion, said to determine whether an injury caused by a neutral risk "arose out of" employment, courts typically apply one of the following three tests: increased-risk test, actual-risk test, or positional-risk test. The most widely used, he wrote, is the increased-risk test.

The test "examines whether the employment exposed the claimant to a risk greater than that to which the general public was exposed."

The Court, in this case, adopted the increased-risk option because it "strikes an adequate balance" between the employee's right to receive compensation for a work-related injury and the employer's right not to be held liable for every injury suffered by an employee in the workplace."

The Court concluded that "substantial evidence" supports the conclusion -- under the increased-risk test -- that Phillips' injury arose out of the course of her employment.

It said, "Phillips worked eight-hour shifts, during which she was required to take six periodic breaks. To access the employees' break room, they had to traverse two flights of stairs. There is no evidence in the record demonstrating that employees were permitted to use any other means of ingress and egress to and from the break room.

"Because the employees' periodic breaks were mandatory, Phillips was required to use the staircase six times during each shift," the Court said.

The Court pointed to the casino's opening brief, which calculated that during the course of Phillips' 17-year employment, she used the stairs close to 25,000 times.

"We conclude that the frequency with which Phillips was required to use the stairs subjected her to a significantly greater risk of injury than the risk faced by the general public," Hardesty wrote.

The Court affirmed the order of the district court, denying the casino's petition for judicial review, concluding that "substantial evidence in the record supports the conclusion that Phillips' injury arose out of the course of her employment."

From Legal Newsline: Reach Jessica Karmasek by e-mail at jessica@legalnewsline.com.

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