CITY OF LAS VEGAS v. MUNSON (CIVIL)

141 Nev., Advance Opinion Qs
IN THE COURT OF APPEALS OF THE STATE OF NEVADA

CITY OF LAS VEGAS; AND CCMSI, No. 88888-COA
Appellants,
vs.
PEGGY MUNSON,
FILED
Respondent. ; JUN 1 2

Appeal from a district court order denying a petition for judicial
review in a workers' compensation matter. Eighth Judicial District Court,
Clark County; Danielle K. Pieper, Judge.
Affirmed.

Hooks, Meng & Clement and Daniel L. Schwartz, Las Vegas,
for Appellants.

GGRM Law Firm and Lisa M. Anderson, Las Vegas,
for Respondent.

BEFORE THE COURT OF APPEALS, BULLA, C.J., and GIBBONS and
WESTBROOK, JJ.

OPINION

By the Court, WESTBROOK, J.:
In 2015, the Nevada Legislature amended NRS 617.457 to limit the
workers' compensation benefits that retired firefighters, arson
investigators, and police officers may obtain in connection with claims for
diseases of the heart that are filed after their retirement. Generally, NRS
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617.457(14) provides that retirees who file such claims may only recover
medical benefits. Today, we clarify that the limitation set forth in NRS
617.457(14) does not apply to retirees who have completed at least 20 years
of creditable service as of June 8, 2015. See 2015 Nev. Stat., ch. 420, §§ 3,
6-7, at 2429-31, 2433. Because the respondent in this case had at least 20
years of creditable service as a firefighter as of June 8, 2015, she was not
barred from recovering permanent total disability benefits for the heart
disease claim that she filed in 2021, after her retirement.
Further, based on the Nevada Supreme Court's decisions in
DeMaranville v. Employers Insurance Co. of Nevada, 135 Nev. 259, 448 P.3d
526 (2019), and Clark County v. Bean, 136 Nev. 579, 482 P.3d 1207 (2020),
we conclude that respondent's permanent total disability benefits were
properly calculated based on the wages she earned on her last day of covered
employment. We therefore affirm the district court's denial of appellants'
petition for judicial review, as the appeals officer correctly found that
respondent was entitled to permanent total disability benefits based on the
wages she was earning at the time she retired.1
FACTS AND PROCEDURAL HISTORY
Respondent Peggy Munson worked as a firefighter with the
City of Las Vegas from November 1992 until she retired in February 2013.
In 2021, about eight years after she retired, Munson was diagnosed with a
disabling heart disease and applied for permanent total disability benefits.
CCMSI, the City's workers' compensation insurer, denied Munson's request

'We originally resolved this appeal by unpublished order.
Respondent subsequently moved on May 7, 2025, to publish that order as
an opinion. Cause appearing, we grant the motion. See NRAP 36(e).
Accordingly, we now issue this opinion in place of our order issued April 24,
2025.
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for permanent total disability benefits pursuant to NRS 617.457(14)
because she was retired at the time she filed her claim.
Munson challenged this denial, but a hearing officer affirmed
CCMSI's determination. Munson thereafter appealed the hearing officer's
decision. Munson argued to the appeals officer that while NRS 617.457(14)
generally precluded retirees from receiving permanent total disability
benefits, Senate Bill 153—which enacted NRS 617.457(14)—provided a
carveout such that NRS 617.457(14) did not apply to anyone who had
completed at least 20 years of creditable service as a firefighter on the law's
effective date. S.B. 153, 78th Leg. (Nev. 2015). Munson argued that
because she served as a firefighter for over 20 years, the carveout to NRS
617.457(14) applied and she was entitled to permanent total disability
benefits. The appeals officer reversed the denial of Munson's claim and
awarded Munson permanent total disability benefits based on the wages
she earned on her last day of working for the City. The City and CCMSI
petitioned for judicial review in the district court, and the district court
denied their petition. This appeal followed.
ANALYSIS
On appeal, the City and CCMSI (collectively "appellants")
argue the appeals officer abused her discretion in determining that Munson
was entitled to permanent total disability benefits. Appellants also argue
the appeals officer abused her discretion in calculating Munson's
permanent total disability benefits based on the wages she earned on her
last date of employment with the City. After review, we conclude the
appeals officer did not abuse her discretion, and thus we affirm the district
court's denial of appellants' petition for judicial review.

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The appeals officer did not abuse her discretion in reversing the denial of
Munson's claini for permanent total disability benefits
First, appellants argue NRS 617.457(14) precluded Munson
from receiving any compensation beyond medical benefits because she was
retired at the time she incurred her occupational disease and filed her
workers' compensation claim. In response, Munson argues NRS
617.457(14) does not apply to her because section 6 of S.B. 153 provided a
carveout for firefighters who, like her, had completed at least 20 years of
service on that section's effective date in 2015. Appellants, in reply, contend
that section 6 of S.B. 153 "was not codified into the statute itself' and thus
does not have binding authoritative weight. We agree with Munson that
the carveout provision applies.
When reviewing an administrative decision, this court's role is
identical to that of the district court: to review the evidence presented to the
agency in order to determine whether the agency's decision was arbitrary
or capricious and was thus an abuse of the agency's discretion." United
Exposition Seru. Co. v. State Indus. Ins. Sys., 109 Nev. 421, 423, 851 P.2d
423, 424 (1993). Appellate review of a final agency decision is "confined to
the record before the agency." Law Offices of Barry Levinson, P.C. v. Milko,
124 Nev. 355, 362, 184 P.3d 378, 384 (2008). Moreover, this court reviews
purely legal questions de novo. Id.
NRS 617.457 governs heart diseases as occupational diseases
for firefighters and certain other professionals. As relevant here, NRS
617.457(12) provides that a person who is "[Martially disabled from an
occupational [heart] disease" and "[i]ncapable of performing . . . work as a
firefighter... may elect to receive the benefits provided under NRS
616C.440 for a permanent total disability." However, NRS 617.457(14)
states that "[a] person who files a claim for a disease of the heart specified
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in this section after he or she retires from employment as a firefighter . . . is
not entitled to receive any compensation for that disease other than medical
benefits."
The language now contained in NRS 617.457(14) was initially
added to the Nevada Revised Statutes in 2015 through S.B. 153.2 See 2015
Nev. Stat., ch. 420, § 3, at 2431. Notably, section 6 of S.B. 153 states that
NRS 617.457(14) does not apply to persons "who, on the effective date of
this section, ha[ve] completed at least 20 years of creditable service" as a
firefighter. See S.B. 153, 78th Leg. (Nev. 2015). Although the Legislative
Counsel did not codify this language into NRS 617.457, see NRS 220.100(2);
NRS 220.120(1), section 6 of S.B. 153 was approved by the Governor and
enacted into law on June 8, 2015, see 2015 Nev. Stat., ch. 420, §§ 6-7, at
2433. As such, it constitutes binding law, and its omission from NRS
617.457 is immaterial. See NRS 220.170(3) (stating copies of the Nevada
Revised Statutes "may be cited as prima facie evidence of the law," but that
such "evidence may be rebutted by proof that the statutes cited differ from
the official Statutes of Nevada"); see also Halverson v. Sec'y of State, 124
Nev. 484, 486-87, 186 P.3d 893, 895-96 (2008) (stating language in a senate
bill that was not codified into the Nevada Revised Statutes was still the law
because "it was enacted in the official Statutes of Nevada"). Therefore,
appellants fail to demonstrate that section 6 of S.B. 153 does not constitute
binding law.
Appellants briefly argue that, even if section 6 of S.B. 153
constitutes binding law, based on the plain language of that section, NRS

0riginally, this language was codified at NRS 617.457(13). See 2015
2
Nev. Stat., ch. 420, § 3, at 2431. However, effective January 1, 2017, that
language is now contained in NRS 617.457(14). Id. §§ 3.5, 7, at 2433.
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617.457(14) still applies to preclude permanent total disability payments.
This court reviews questions of statutory interpretation de novo. See Law
Offices of Barry Leuinson, 124 Nev. at 365, 184 P.3d at 386. "In interpreting
a statute, this court will look to the plain language of its text and construe
the statute according to its fair meaning and so as not to produce
unreasonable results." Dolores u. State, Ernp. Sec. Div., 134 Nev. 258, 259,
416 P.3d 259, 261 (2018) (quoting I. Cox Constr. Co. v. CH2 Inus., LLC, 129
Nev. 139, 142, 296 P.3d 1202, 1203 (2013)). A statute must be considered
as a whole and should not be construed in a manner "that would render
words or phrases superfluous or make a provision nugatory." Law Offices
of Barry Levinson, 124 Nev. at 366, 184 P.3d at 386.
Section 6 of S.B. 153, as enacted, reads as follows:
The amendatory provisions of this act:
1. Apply only to disablement which occurs on
or after the effective date of this section; and
2. Do not apply to any person who, on the
effective date of this section, has completed at least
20 years of creditable service . . . as
a . . firefighter . . . in this State.
2015 Nev. Stat., ch. 420, § 6, at 2433. Appellants contend that subsections
1 and 2 should be read as one conjunctive test and that Munson cannot meet
both prongs. However, the plain language of the statute does not support
such an interpretation. Although subsections 1 and 2 are separated by the
word "and," there is no introductory language indicating that these
subsections constitute two parts of a conjunctive test. Rather, the plain
language of the statute indicates subsections 1 and 2 are independent
phrases addressing the applicability of the amendatory provisions.
Moreover, the two provisions are logically unrelated—subsection 1
addresses which disablements will be impacted by the amendment, and
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subsection 2 addresses which persons will not be impacted by the
amendment.
Additionally, if the two subsections were read together as
constituting a conjunctive test, then subsection 2's broad and unqualified
exception for firefighters with at least 20 years of creditable service would
be rendered ineffective in situations where their disablement occurred after
that section became effective. Because such a reading would render
subsection 2 nugatory under circumstances not contemplated by the plain
language of the statute, we decline to consider section 6 of S.B. 153 to be a
conjunctive two-part test. See Int'l Game Tech., Inc. v. Second Jud. Dist.
Ct., 124 Nev. 193, 202, 179 P.3d 556, 561 (2008) (recognizing that "the
unreasonableness of the result produced by one among alternative possible
interpretations of a statute is reason for rejecting that interpretation in
favor of another that would produce a reasonable result" (internal quotation
marks omitted)). Further, while it is unnecessary to consider legislative
history because of the plain language of the statute, we note that S.B. 153's
history indicates the legislature did not intend to prohibit experienced
firefighters, such as Munson, from receiving disability benefits that they
previously would have been able to receive. See Hearing on S.B. 153, Before
the Assembly Comm'n on Com. and Lab., 78th Leg., at 3 (Nev., May 6, 2015)
(statement of Senator James A. Settelmeyer) (stating that S.B. 153 was not
intended "to make changes for those people who have done their full time"
and that "[t]hose who have put in their 20 years should not have changes").
Because section 6 of S.B. 153, as enacted, constitutes binding
law, NRS 617.457(14) does not apply to Munson, and thus the statute did
not preclude her from seeking permanent total disability benefits if she had
‘`completed at least 20 years of creditable service" as a firefighter at the time

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section 6 became effective in 2015, regardless of when she became disabled.
It is undisputed that Munson was a firefighter for over 20 years when she
retired in 2013. Therefore, NRS 617.457(14) does not apply to her, and we
conclude that the appeals officer did not abuse her discretion by
determining that Munson was entitled to seek permanent total disability
benefits.3
The appeals officer did not abuse her discretion in calculating Munson's
permanent total disability benefits
Appellants argue the appeals officer abused her discretion in
calculating Munson's permanent total disability benefits. Specifically,
appellants rely on Howard u. City of Las Vegas and argue that, even if
Munson was entitled to seek permanent total disability benefits, the net
result would be an award of $0 because she was retired at the time she
became disabled. 121 Nev. 691, 120 P.3d 410 (2005). In response, Munson
argues that appellants' reliance on Howard is misplaced and that the
appeals officer appropriately applied the analysis used in Clark County u.

3Appellants argue in their reply brief that Munson cannot be entitled
to permanent total disability benefits as she cannot show that she was "in
the employ" of the City under NRS 616C.440(1). However, we need not
consider this argument because appellants did not raise it before the
appeals officer or in their opening brief on appeal. See State ex. rel. State
Bd. of Equalization u. Barta, 124 Nev. 612, 621, 188 P.3d 1092, 1098 (2008)
("Because judicial review of administrative decisions is limited to the record
before the administrative body, we conclude that a party waives an
argument made for the first time to the district court on judicial review.");
see also Weauer I). State, Dep't of Motor Vehicles, 121 Nev. 494, 502, 117 P.3d
193, 198-99 (2005) (providing that this court need not consider issues raised
for the first time in an appellant's reply brief); Francis u. Wynn Las Vegas,
LLC, 127 Nev. 657, 671 n.7, 262 P.3d 705, 715 n.7 (2011) (concluding that
the appellant deprived the respondent "of a fair opportunity to respond" by
raising an argument for the first time in the reply brief).
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Bean to calculate her benefits. 136 Nev. 579, 482 P.3d 1207 (2020). We
agree with Munson.
As noted above, this court reviews an administrative agency's
decision for an abuse of discretion. United Exposition, 109 Nev. at 423, 851
P.2d at 424. However, "[cduestions of law, including the agency's
interpretation of statutes, are reviewed de novo without deference to the
agency's decision." Bean, 136 Nev. at 581, 482 P.3d at 1209.
Pursuant to NRS 616C.440(1)(a), employees who are adjudged
to have permanent total disability are entitled to "compensation per month
of 66 2/3 percent of the average monthly wage." NAC 616C.423 details the
forms of income that may be included in calculating an employee's average
monthly wage. These average monthly wages are generally calculated
based on "a history of earnings for a period of 12 weeks." NAC 616C.435(1).
Additionally, "[t]he period used to calculate the average monthly wage must
consist of consecutive days, ending on the date on which the injury or illness
occurred, or the last day of the payroll period preceding the injury or illness
if this period is representative of the average monthly wage." NAC
616C.435(8).
In Howard, the supreme court considered the extent to which a
retired firefighter who suffered a heart attack was entitled to temporary
total disability benefits. 121 Nev. at 692, 120 P.3d at 410. The supreme
court concluded that even though the appellant's heart attack in that case
was presumed to be an occupational disease arising out of and in the course
of his employment, "NRS 617.420 require[d] that [temporary total]
disability compensation be computed starting on the date of disability" and
did not permit a claimant to receive "disability compensation if the claimant
[was] not earning any wages" at the time of his or her disability. Id. at 693-

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94, 120 P.3d at 411. Thus, "[b]ecause [the appellant] was retired and not
earning an actual wage at the time of his disability, front which a lost wage
may be calculated, he [was] not entitled to disability compensation in the
form of lost wages." Id. at 695, 120 P.3d at 412 (emphases added).
Howard is inapplicable here. Howard "rested [its] conclusion[ ]
that disability benefits were unavailable on the provision in NRS 617.420(1)
limiting compensation payable for temporary total disability."
DeMaranuille u. Emps. Ins. Co. of Neu., 135 Nev. 259, 266, 448 P.3d 526,
533 (2019). That provision does not apply to a claimant, such as Munson,
who seeks compensation for a permanent total disability. Cf. NRS
617.420(1) ("No compensation may be paid under this chapter for temporary
total disability which does not incapacitate the employee for at least 5
cumulative days within a 20-day period from earning full wages . . . .").
Moreover, unlike the temporary disability benefits at issue in Howard,
permanent total disability benefits are not intended as wage replacement.
Compare NRS 616C.475(5) (requiring payments for a temporary total
disability to cease under certain conditions, such as if a physician
"determines that the employee is physically capable of any gainful
employment"), with NRS 616C.440(3) (stating that an employee is entitled
to receive permanent total disability compensation "so long as the
permanent total disability continues to exist").
Rather, the supreme court's analyses in DeMaranuille and Bean
control this matter. In DeMaranuille, the supreme court addressed how to
calculate death benefits when a retired worker died from a compensable
occupational disease. 135 Nev. at 264-68, 448 P.3d at 532-34. In doing so,
the court resolved an ambiguity in NAC 616C.435 and held that such
benefits should be based on wages earned immediately before retirement.

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Id. at 267-68, 448 P.3d at 533-34. In Bean, the supreme court extended the
DeMaranuille analysis to the context of permanent partial disability
benefits and held that such benefits should likewise be based on the wages
earned immediately prior to retirement under NAC 616C.435. 136 Nev. at
582-83, 482 P.3d at 1210-11.
Like the claimants in DeMaranuille and Bean, Munson did not
seek compensation for a temporary total disability. DeMaranuille and Bean
interpreted and applied NAC 616C.435—the same regulation that governs
the calculation of compensation in this matter. See Bean, 136 Nev. at 583-
84, 482 P.3d at 1211; DeMaranuille, 135 Nev. at 265-66, 448 P.3d at 531-33.
In both cases, the supreme court declined to interpret NAC 616C.435 in a
manner that "would effectively nullify the provisions in [the workers'
compensation] statutes that establish compensable claims" and held that
the amount of benefits must be based on "the last day of the disease-risk
exposure that is causally connected to the disease," i.e., based on the wages
earned at the time of retirement. Bean, 136 Nev. at 582-84, 482 P.3d at
1210-11 (quoting DeMaranuille, 135 Nev. at 266, 268, 448 P.3d at 532, 534).
In light of the foregoing, the appeals officer properly relied on
the supreme court's reasoning in Bean and DeMaranuille and considered
the wages Munson was earning in 2013 when she retired as a firefighter to
calculate her permanent total disability benefits. Because the appeals
officer's conclusion properly applied the relevant law, we conclude that her
decision was not an abuse of discretion.4

4Insofar as appellants have raised other arguments not specifically
addressed in this opinion, we have considered the same and conclude that
they do not present a basis for relief.
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CONCLUSION
Based on the foregoing, we affirm the district court's denial of
appellants' petition for judicial review. Because Munson had at least 20
years of creditable service as a firefighter as of June 8, 2015, the limitation
in NRS 617.453(14) did not apply to her. Therefore, the appeals officer did
not abuse her discretion by awarding Munson permanent total disability
benefits for the disabling heart disease claim that she filed after her
retirement. Further, the appeals officer properly calculated Munson's
permanent total disability benefits based on the wages she was earning at
the time she retired.

J.

We concur:

• . C.J.
Bulla

, J.

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