A hearing officer reversed and held the city's insurer, Employers Insurance Company of Nevada ("EICON") liable.

An appeals officer found that Mr. DeMaranvill had heart disease that caused his death and that his heart disease was compensable as an occupational disease under N.R.S. 617.457. The appeals officer concluded that the date of disablement was the date of Mr. DeMaranvill's death and that the city was liable for the claim because it was a self-insured employer on the date of disablement. Holding that the city was liable, the appeals officer reversed the hearing officer's decision that EICON was liable for the claim, reversed the city's determination letter denying the claim, and affirmed EICON's determination letter denying the claim.

Thereafter, a Nevada court affirmed the finding that Mr. DeMaranvill had died from heart disease, a compensable occupational disease; affirmed the conclusion that the city was the liable insurer based on the date of disablement (that is, his death); and ruled that the monthly benefit was based on Mr. DeMaranvill's wages on the date of disablement from the covered employer, the city, which were zero in 2012.

The dispute reached the Supreme Court of Nevada.

There, Ms. DeMaranvill argued that her monthly benefits should be based on Mr. DeMaranvill's 2012 wages from his private employer. The city argued that EICON should be liable for any viable claim because it insured Mr. DeMaranvill's claims during his employment by the city and that any benefit calculation should be based on his wages from the city at the time of his disability, which were zero.

The Nevada Supreme Court's Decision

The court ruled that:

• Because EICON insured the city when Mr. DeMaranvill was last exposed to the risk that was causally connected to his occupational disease, EICON was liable under the last injurious exposure rule – even though Mr. DeMaranvill no longer worked for the city at the time of his death.
• For a death benefit claim for an occupational disease arising out of and in the course of employment under the statutory scheme as it applied to Mr. DeMaranvill's claim, the monthly compensation amount should be based on his earnings in the employment causally connected to the occupational disease underpinning the claim. Thus, death benefits should have been based on Mr. DeMaranvill's wages at the time he last worked for the city.

In its decision, the court ruled that the last injurious exposure rule, which places full liability on the carrier covering the risk at the time of the most recent injury that bore a causal relation to the disability, applied in this case given that Mr. DeMaranvill's heart disease was conclusively presumed to have arisen out of and in the course of his employment with the city pursuant to NRS 617.457(1).

Accordingly, the court said, liability fell on the carrier of the city's risk at the time Mr. DeMaranvill worked for the city because that employment was the latest exposure causally connected to his occupational disease.

The court noted that EICON was the city's insurer in 1990 when Mr. DeMaranvill had his last injurious exposure to the risk causally connected to his occupational disease and it said, therefore, that EICON, was liable under the last injurious exposure rule. The court pointed out that the city's subsequent change to self-insured status and its decision to carry its own risk did not affect the determination that EICON insured the risk at the causally relevant time.

Then, the court ruled that the occupational disease death benefit amount payable to Mr. DeMaranvill's widow was based on the wages he earned during the period causally connected to the occupational disease.

The court explained that the statutory scheme that provided for and regulated compensating a disabled employee for an occupational disease demonstrated "a legislative intent to compensate viable claims." The court said that, for a decedent such as Mr. DeMaranvill with a claim conclusively connected with employment, but who worked for a different employer at death, two interpretations of the statutory scheme presented themselves. Either the legislature intended the amount of Mr. DeMaranvill's monthly death benefits to be zero because he did not work for the employer causally connected to his claim immediately before his disablement (that is, his death), or the legislature intended the amount of death benefits to be based on actual wages Mr. DeMaranvill earned.

The court reasoned that basing Mr. DeMaranvill's death benefits on his wages from the city at the time of death effectively would nullify the claim for death benefits. Therefore, the court decided that the Mr. DeMaranvill's death benefit should be related to the wage he earned at the time the occupational disease causally connected to the disability occurred.

Accordingly, it concluded that Mr. DeMaranvill's death benefit claim should not reflect his 2012 wages from his private employer but, rather, his 1990 wages from the city.

The case is Demaranville v. Employers Ins. Co., No. 72737 (Nev. Sep. 5, 2019). Attorneys involved include: Evan B. Beavers, Nevada Attorney for Injured Workers, Samantha Peiffer, Deputy Nevada Attorney for Injured Workers, Carson City, for Appellant/Cross-Respondent. Sertic Law Ltd. and Mark S. Sertic, Reno, for Respondent Employers Insurance Company of Nevada. McDonald Carano LLP and Timothy E. Rowe and Chelsea Latino, Reno, for Respondent Cannon Cochran Management Services, Inc., and Respondent/Cross-Appellant City of Reno.