Nevada Casino Employee’s Tort Action Against Employer for Delaying Stroke Treatment is Barred by Exclusivity
A housekeeping employee at a Las Vegas casino, who suffered a stroke just prior to the beginning of his work shift, and who contended his medical condition was exacerbated when his employer failed to seek special medical assistance within a “golden window” of diagnostic and treatment opportunity, may not maintain a civil action against the employer to recovery his alleged damages, held the Supreme Court of Nevada [Baiguen v. Harrah’s Las Vegas, 2018 Nev. LEXIS 70 (Sept. 13, 2018)]. The employee’s tort action is barred by the exclusive remedy provisions of the Nevada Industrial Insurance Act (“the Act”) and the trial court acted appropriately when it granted the employer summary judgment.
Background
The employee was suffering a stroke when he arrived for work at Harrah’s, where he worked in housekeeping. After parking his car, he met with coworkers on the second floor of the garage about 15 minutes before his shift. Those coworkers noted that the employee was drooling and unresponsive to questions. A few minutes later, he accompanied a coworker to the employee-only clock-in area at the housekeeping office, where he walked around in a disoriented fashion. His immediate supervisor asked him a question, but the employee did not respond and the coworker advised the supervisor that the employee was “not good.”
Observing that the employee was drooling, and that his face was drooping, the supervisor notified a manager, who told the employee that he could not work, and when a coworker volunteered to help the employee, the manager allowed the coworker to find the employee a ride home.
Later, two coworkers on the outgoing shift drove the employee home, unlocked his front door for him, helped him change clothes, and then left after about 30 minutes. The employee remained alone in his apartment for two days until his girlfriend stopped by, discovered that he was unable to talk and was drooling. She drove him to the hospital.
The employee eventually filed suit against the employer, contending that the employer’s actions in failing to seek immediate medical care caused the employee’s medical condition to be exacerbated, that if an FDA-approved treatment for the employee’s type of stroke—blood-clot-busting medication called tissue plasminogen activator (t-PA)—had been administered within the “golden window” (three hours of the onset of symptoms) of treatment, the employee might well have recovered from his stroke without significant problems.
District Court Ruled the Tort Claim Barred by Exclusivity
The district court determined that the employee’s injury not only occurred in the workplace, but that it also arose out of his employment. Accordingly, the court granted summary judgment to the employer on exclusivity grounds. The Court of Appeals reversed. In this instant appeal, the Supreme Court vacated the decision of the court of appeals and affirmed the district court’s summary judgment order.
Did the Injury Arise Out of and in the Course of Employment?
The Court noted the case turned on a two-fold question. First, did the employee’s injuries occur in the course of his employment? As to that issue, the Court observed that injuries sustained on the employer’s premises, while the employee is proceeding to or from work, within a reasonable time, are sufficiently connected with the employment to have occurred ‘in the course of employment. The closer question, indicated the court, was the second: did the injuries also arise out of the employment?
What Type of Risk Did the Employee Face?
Quoting Larson’s Workers’ Compensation Law extensively, the court stressed that an employee generally might encounter four types of risks at work:
- Employment
- Personal
- Neutral
- Mixed
The Court observed that the employee’s stroke itself constituted a personal risk. But the Court stressed that the employee’s claim was not that the employer caused the employee’s stroke; rather, that its inadequate response to the employee’s stroke cost him his window of treatment opportunity, turning a treatable medical incident into a catastrophic injury. Continuing its reasoning, the Court added that the possibility that the employer here might respond inadequately to the employee’s stroke in the workplace, due to inadequate workplace policies, procedures, or training, or that it might fail to follow existing policies, procedures, and training, was a risk related to the employee’s employment. Such inadequate policies, procedures, and training were conditions of the workplace akin to well-recognized physical hazards.
The Court stressed that the employee was not a hotel guest or a restaurant patron; he was at the casino facility to work. And when he showed up for work, he remained in areas restricted to employees, where his only opportunity for aid was from his employer or his coworkers. Under the facts before the Court, any duty on the employee’s part to render aid would have arisen out of the employer-employee relationship, not another special relationship such as innkeeper-guest or restaurateur-patron. The employee’s injuries occurred in the course of the employment and also arose out of that employment, such that workers’ compensation was the employee’s exclusive remedy.