Baiguen v. Harrah's Las Vegas, LLC
Baiguen v. Harrah's Las Vegas, LLC
Opinion of the Court
The Nevada workers' compensation system provides the exclusive remedy an employee has against his or her employer for a work-related injury. This case requires us to decide whether an injury arising from an employer's failure to provide medical assistance to an employee suffering a stroke arose out of and in the course of the employment. We hold that it did. Because an employee's sole remedy for such an injury is workers' compensation, we affirm summary judgment for the employer.
I.
Israel Baiguen was suffering a stroke when he arrived for work as a Harrah's houseperson. Baiguen parked his car in the employee-only parking garage and met with coworkers on the second floor of the garage about 15 minutes before his shift. His coworkers noted that he was drooling and unresponsive to questions. He then went with a coworker to the employee-only clock-in area at the housekeeping office in the basement of *589Harrah's, where he walked around disoriented, then waited in line to receive his keys and radio for his shift. While Baiguen waited for his keys and radio, his immediate supervisor asked him a question; when Baiguen did not respond, the coworker said that Baiguen was "not good." Observing that Baiguen was drooling, and that his face was drooping, the supervisor notified a manager that Baiguen was "not fine." The manager told Baiguen that he could not work, and when the coworker volunteered to help Baiguen, the manager allowed the coworker to find Baiguen a ride home.
Baiguen never left the employee-only areas of Harrah's to begin his shift. Two coworkers on the outgoing shift drove Baiguen home, unlocked his front door for him, helped him change clothes, and then left after about 30 minutes. Baiguen remained in the apartment for two days until his girlfriend stopped by, discovered that he was unable to talk and drooling, and drove him to the hospital.
The only FDA-approved treatment for Baiguen's type of stroke at the time was a blood-clot-busting medication called tissue plasminogen activator (t-PA). As a diabetic, Baiguen had an approximately three-hour window after exhibiting stroke symptoms for the t-PA to be administered. When timely administered, t-PA increases by 30 percent the chance that a patient will fully recover from the stroke with minimal or no disability. Even so, t-PA carries a risk of internal bleeding and death; the drug is not a guaranteed fix, but rather a way to help improve a stroke victim's chances of recovery. Baiguen did not receive t-PA following his stroke, because he was not treated within the three-hour window.
Baiguen sued Harrah's in district court for failure to aid him during the "golden window" of diagnostic and treatment opportunity. The district court granted summary judgment to Harrah's, finding that Baiguen's exclusive remedy was workers' compensation, because the injury occurred in the workplace and arose out of his employment with Harrah's. Baiguen appealed and the case was transferred to the court of appeals. The court of appeals reversed. We granted Harrah's petition for review, vacated the decision of the court of appeals, and affirm the district court's summary judgment order.
II.
We review a district court's grant of summary judgment de novo. Wood v. Safeway, Inc.,
The Nevada Industrial Insurance Act (NIIA) provides the exclusive remedy for an employee against his employer when the employee sustains an injury "arising out of and in the course of the employment." NRS 616A.020(1) ; see Wood ,
A.
Baiguen argues that Harrah's failure to respond to his stroke did not occur within the course of his employment, and therefore is not covered by workers' compensation, *590because he had not clocked in yet and his symptoms prevented him from performing any work duties. "[W]hether an injury occurs within the course of the employment refers merely to the time and place of employment, i.e., whether the injury occurs at work, during working hours, and while the employee is reasonably performing his or her duties." Wood,
In Mirage v. Cotton, we held 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.' "
B.
Baiguen also argues that his injury did not arise out of his employment. An injury arises out of the employment "when there is a causal connection between the employee's injury and the nature of the work or workplace." Wood , 121 Nev. at 733,
1.
An employee might encounter three types of risks at work: (1) employment; (2) personal; and (3) neutral. See Phillips,
On the other hand, personal risks do not arise out of the employment. Phillips ,
Finally, a neutral risk is a risk that is neither an employment risk nor a personal one, such as a fall that is not attributable to premise defects or a personal condition. Phillips,
Under some circumstances, the risk may be mixed. A mixed risk is "a personal cause and an employment cause combin[ing] to produce the harm." Larson, supra § 4.04, at 4-3. A classic example of an injury from a mixed risk is "a person with a weak heart who dies because of strain occasioned by the employment." Id. A mixed risk arises out of the employment if the employment risk was a contributing factor in the injury. Id.
Both parties agree that Baiguen's employment at Harrah's did not cause his stroke. They disagree, however, about whether Baiguen's alleged injuries in this suit-the lost chance of recovery and the exacerbated effects of his stroke due to delayed medical assistance-constituted a personal risk, a neutral risk, or an employment risk. Baiguen argues that his injuries were a personal risk, and therefore did not arise out of his employment, which would allow him to sue Harrah's in tort and avoid the workers' compensation bar. He alternatively argues that even if it was a neutral risk, the injuries did not arise out of the employment because he faced the same risk that Harrah's would not come to his aid as any other Harrah's guest or visitor. Conversely, Harrah's argues that Baiguen's alleged injury is the lost chance of recovery due to Harrah's alleged failure to properly train employees or obtain medical assistance for Baiguen-an employment risk.
Baiguen urges a neutral risk analysis, but the personal origin of his stroke defies a neutral risk analysis. See Larson, supra § 7.04(1)(b), at 7-28 ("Whenever personal disease or weakness contributes to the [injury], an entirely new set of rules comes into play, since the risk is no longer neutral but either personal or, perhaps, 'mixed.' "). A neutral risk is a risk that is not related to either a personal risk or an employment risk; it is not a risk that is a combination of a personal risk and an employment risk. See id. § 4.03, at 4-2 (defining neutral risks as "of neither distinctly employment nor distinctly personal character") (emphasis added). We conclude that Baiguen's alleged injuries are the result of a mixed risk-the personal risk that he could have a stroke, and the employment risk that if he had a stroke at work his employer might fail to render appropriate aid. See id. § 4.04, at 4-3.
Baiguen's stroke itself constituted a personal risk. But his claim is not that Harrah's caused his stroke ; rather, that its inadequate response to his stroke symptoms cost him his window of treatment opportunity, turning a treatable medical incident into a catastrophic injury. That Harrah's might respond inadequately to Baiguen's stroke in the workplace, due to inadequate workplace policies, procedures, or training, or fail to follow existing policies, procedures, and training, is a risk related to Baiguen's employment. Such inadequate policies, procedures, and training are conditions of the workplace akin to well-recognized physical hazards, like the risk that the injury from a painter's stroke will be worsened by falling off a ladder, or an epileptic cook who suffers a seizure and burns himself on a stove. See, *592e.g., Dudley v . Victor Lynn Lines, Inc .,
For example, in Dugan , an employee with a history of heart problems suffered a "heart event" at work,
Similarly, Baiguen alleges that decisions by Harrah's employees exacerbated the effects of his stroke and cost him a 30-percent chance of recovery by preventing timely administration of the t-PA medicine. Just as the employer's decision in Dugan to block 9-1-1 access, Harrah's negligence, if any, was inextricably linked to Harrah's workplace conditions, including its policies, procedures, and training related to recognizing and providing medical assistance for medical events occurring in the workplace.
2.
"In Nevada, as under the common law, strangers are generally under no duty to aid those in peril." Lee v. GNLV Corp.,
Baiguen claims that his injury does not arise out of his employment because Harrah's owed him the same duty under our law as any other person on Harrah's premises. See Lee ,
Baiguen's injuries occurred in the course of his employment and arose out of his employment such that workers' compensation is his exclusive remedy against Harrah's. We therefore affirm.
We concur:
Douglas, C.J.
Cherry, J.
Gibbons, J.
Hardesty, J.
Parraguirre, J.
Stiglich, J.
The parties dispute whether Baiguen clocked in to work. In Harrah's reply to Baiguen's opposition to the motion for summary judgment, Harrah's attached an affidavit from an employee that Baiguen clocked in on the day in dispute. Baiguen refutes this by pointing to evidence not in the record and statements by witnesses who claimed not to know whether Baiguen clocked in. While this may not create a genuine dispute of material fact, see Wood,
Reference
- Full Case Name
- Israel BAIGUEN, an individual v. HARRAH'S LAS VEGAS, LLC, a Nevada domestic limited liability corporation, d/b/a Harrah's Casino Hotel, Las Vegas and Caesars Entertainment Corporation, a Nevada foreign corporation, d/b/a Harrah's Casino Hotel, Las Vegas
- Cited By
- 4 cases
- Status
- Published