Lv Metro Police Dept. v. Burtrand

• Court: Nevada Supreme Court
• Decided: April 17, 2015
• Docket: 63949
• Status: Unpublished

Opinion

incapacitated for work to be deemed permanently and totally disabled if they are "so handicapped that they will not be regularly employed in any well-known branch of the labor market." Ranieri v. Catholic Cmty. Servs., 111 Nev. 1057, 1062, 901 P.2d 158, 161 (1995); see also NRS 616C.435(2). Factors to be considered in applying the odd-lot doctrine include the worker's age, experience, training, and education. Ranieri, 111 Nev. at 1062, 901 P.2d at 161. Here, the appeals officer considered the evidence presented by the parties in light of those factors, including evidence that Burtrand's transferable skills could not be used in the workplace due to her inability to sit, stand, and walk without pain. The appeals officer found Burtrand's testimony credible and also specifically relied on three medical reports: that of Dr. Wendell Burris, Burtrand's personal physician; that of Dr. Robin Genereaux, a vocational rehabilitation counselor; and that of Dr. Mark Rosin, who performed an independent medical examination on Burtrand. Each of these reports supports the appeals officer's findings. See Westin Hotel v. Indus. Comm'n of Ill., 865 N.E.2d 342, 357-58 (Ill App. Ct. 2007) (recognizing that evidence from both a rehabilitation services provider or a vocational counselor and medical doctors support a PTD finding under the odd-lot doctrine). Further, after the district court remanded for the appeals officer to clarify whether Burtrand was precluded from working in the competitive labor market at large or merely in her former position at Metro, the appeals officer expressly found that, based on the reports and Burtrand's physical limitations, she could not return to "working in the competitive labor market at large," warranting a PTD finding under the odd-lot doctrine.

SUPREME COURT OF NEVADA 2 (0) 1947A 41ffejir While the record contains conflicting evidence regarding appellant's ability to work, this court will not reweigh the evidence or replace the appeals officer's judgment as between two reasonable but conflicting views. See NRS 233B.135; Nellis Motors v. State, Dep't of Motor Vehicles, 124 Nev. 1263, 1269-70, 197 P.3d 1061, 1066 (2008) (explaining that this court will not reweigh the evidence, reassess witness credibility, or substituteS our judgment for that of the appeals officer on questions of fact). The appeals officer applied the correct legal standard and substantial evidence supports the appeals officer's determination that Burtrand qualifies for PTD benefits under the odd-lot doctrine. See Vredenburg v. Sedgwick CMS, 124 Nev. 553, 557 & n.4, 188 P.3d 1084, 1087 & n.4 (2008) (noting that the appeals officer's decision will not be disturbed if supported by substantial evidence, which is evidence that a reasonable person could accept as adequately supporting a conclusion). Accordingly, we ORDER the judgment of the district court AFFIRMED.

cc: Hon. Michael Villani, District Judge Richard A. Harris, Settlement Judge Lewis Brisbois Bisgaard & Smith, LLP/Las Vegas Nevada Attorney for Injured Workers/Las Vegas Eighth District Court Clerk

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