Nevada Firefighter Due PPD Benefits For Cancer Diagnosed After Retirement

A county firefighter, who was diagnosed with prostate cancer three years after his retirement, and who had been given a 40 percent disability rating, was entitled to PPD benefits based on the wages he was earning at the time of his retirement, held the Supreme Court of Nevada [Clark County v. Bean, 2020 Nev. LEXIS 61 (Oct. 8, 2020)]. Analyzing its decisions in two prior cases, the Court said its analysis of compensation for death benefits in its DeMaranville decision was directly applicable, and stressed that neither death benefits, as claimed in DeMaranville, nor PPD benefits, as claimed here, were statutorily limited based on the amount of work missed. That the retired firefighter had no current earnings, therefore, was not relevant.

Background

Claimant worked as a county firefighter until his retirement in 2011. In 2014, he was diagnosed with prostate cancer and had part of his prostate removed. A doctor later assessed him with a 40 percent PPD rating, and Claimant sought occupational disease benefits. The County accepted Claimant’s claim for medical expenses, but rejected the claim insofar as it sought ongoing PPD benefits. It contended that, because Claimant was retired at the time he became permanently partially disabled, he was not earning any wages upon which to base a PPD benefits award. The County declined to award Claimant any PPD benefits.

Claimant administratively challenged the County’s decision, arguing his PPD benefits award should be based on the wages he was earning at the time he retired. The appeals officer agreed and reversed the County’s denial. The district court similarly rejected the County’s argument and the County appealed.

Appellate Court Decision

The appellate court initially noted that firefighters or their dependents were entitled to compensation for disabling work-related cancers, such as Claimant’s prostate cancer, pursuant to Nev. Rev. Stat. § 617.453(4). The court also noted that its decision required an analysis of two earlier, competing decisions.

In DeMaranville v. Employers Insurance Co. of Nevada, 135 Nev. 259, 448 P.3d 526 (2019), the court addressed the calculation of a retired workers’ compensation claimant’s death benefits when the retiree died from a compensable occupational disease. There, the court held that the retiree was entitled to death benefits based on the wages earned immediately before retirement. In doing so, the court distinguished the death benefits at issue from TTD benefits, which the court had earlier held were not available to a retiree when an occupational disease manifested after retirement [see Howard v. City of Las Vegas, 121 Nev. 691, 120 P.3d 410 (2005).

Here, of course, Claimant was seeking neither death benefits nor TTD benefits, but rather was seeking PPD benefits. The court concluded that DeMaranville‘s analysis of compensation for death benefits was directly applicable here because the regulation governing the calculation of compensation for both types of benefits was the same. Furthermore, the court stressed that neither death benefits nor PPD benefits were statutorily limited based on the amount of work missed, and both were meant to compensate an employee who suffered death or permanent disability resulting from their employment. The court, therefore, affirmed the district court’s denial of the County’s petition for judicial review, as the appeals officer correctly found that Claimant was entitled to PPD benefits based on the wages he was earning at the time he retired.