Is a win for retired cops and firefighters a loss for taxpayers?

The 2021 diagnosis meant she would be “unable to perform the extreme physical effort to fight fires,” her doctor wrote.

Munson applied for total permanent disability, though retired firefighters generally are eligible only for medical benefits under Nevada law. The city’s benefits administrator denied her claim, and a legal fight ensued.

This year, the Nevada Court of Appeals ruled in Munson’s favor.

The ruling paves the way for certain other retired firefighters, police officers and arson investigators – those with 20 years of service by June 8, 2015 – to also receive disability compensation, at a cost of potentially millions of dollars to taxpayers.

“This is going to help a lot of people,” Munson told the Las Vegas Review-Journal in July. “This has been set in place to take care of us, and that is the right thing to do.”

But is it a win for Nevada taxpayers, who will bear the cost?

Government watchdog Geoffrey Lawrence doesn’t think so. And he said this disability “carve-out” for some retirees is just one indication that heart and lung compensation needs legislative reform. Another is the presumption that a first responder’s heart or lung disease was caused by the occupation when diagnosed years or even decades after the person has left the job.

“Nevada’s benefit for police officers and firefighters is out of step with what other states offer and could be abused,” said Lawrence, director of research for Nevada Policy, a conservative think tank that scrutinizes government spending.

For Munson, disability compensation comes on top of a government pension and her earnings as a real estate agent, as permitted under state law. Her LinkedIn and Facebook pages, which include a profile picture of her in front of a fire truck, reference her real estate business and service to the community as a firefighter.

Under the heart and lung law, eligibility for total permanent disability means something unique within the workers’ compensation system. It means that the first responder can no longer withstand the rigors of fighting fires or fighting crime, but often the person isn’t catastrophically injured. The first responder is not required to take a desk job or retrain. It is a remarkable, and much litigated, benefit.

An attorney who represents first responders said it is a benefit that befits a hero and one that state legislators considered appropriate.

“It was deemed good public policy when they did it, because they’re trying to take care of people that run into burning buildings, that chase people with guns to protect the rest of society,” Las Vegas attorney Lisa Anderson said.

In the past five years alone, five government employers in Southern Nevada — Clark County, Henderson, Las Vegas, the Metropolitan Police Department and North Las Vegas — incurred costs of at least $84.5 million for new heart and lung claims.

Much of the expense was for permanent total disability compensation, according to data obtained by the Review-Journal through public records requests. Actual costs will be higher; two of the employers base their calculations on the reserves needed for only the next three or five years, as opposed to the life expectancy of claimants. Permanent total disability results in payments for a lifetime.

Metro, which serves Las Vegas and the unincorporated county, has funds dedicated to paying workers’ compensation claims. The department is self-insured, meaning that all costs are absorbed by taxpayers, the agency said.

“Yes, the rising cost of workers’ compensation expenses is a concern,” the Police Department wrote in an email.

Each of the five government employers declined an interview request.

‘Understatement of the century’

First responders diagnosed in retirement with a heart or lung condition are eligible for medical benefits only, according to language in the Nevada Revised Statutes. The language incorporated 2015’s Senate Bill 153, which was aimed at reducing taxpayer liability.

That law seems clear-cut, but there was a twist.

The language in NRS does not include the disability carve-out for those with 20 years of service when the bill was enacted; the version signed by the governor and in the complete Statutes of Nevada does include the carve-out. As a result, attorneys, appeals officers and judges have disagreed ever since over which version is binding law.

“I hope this goes all the way to the Nevada Supreme Court because of the inartful way this was drafted,” Dean Hardy, senior appeals officer for the Nevada Department of Administration’s Hearing Division, said in an interview last year.

An appeal of Munson’s case did subsequently go to the Supreme Court, but it was remanded to the Nevada Court of Appeals. In April, the appeals court decided that the version with the carve-out constitutes binding law, and rejected a further argument that the complicated language of the statute meant the carve-out did not apply to people in Munson’s position.

“A court of appeals has rendered a decision that controls our further scrutiny of the issue. We’re bound by this decision,” Hardy said in May. He has since retired.

For his division, the ruling was significant, and Hardy said “that might be the understatement of the century.” He said it gave clarity to hearing and appeals officers, as well as the courts.

It also could have a significant impact on workers’ compensation costs.

Southern Nevada local governments did not provide estimates of the ruling’s financial impact. But Anderson and Dan Schwartz, opposing counsel on many carve-out cases, agreed that a first responder diagnosed with disabling heart or lung disease in their 50s might receive between $1.2 million and $1.5 million in lifetime disability compensation, apart from medical costs.

The attorneys spoke with the Review-Journal last year at the Nevada Department of Administration’s Hearing Division in Las Vegas after the postponement of a hearing in a carve-out case. The hearing was postponed in anticipation of a higher court ruling that would clarify the issues in these cases. The Munson opinion would become that ruling.

Asked about the financial impact of the 2015 legislative carve-out, Anderson said that of her 300 heart and lung cases, only 25 were related to the carve-out.

Schwartz said, “It’s not a tremendous amount of people, but it’s potentially a lot of money.”

‘We’re not invincible’

Munson worked as a firefighter for the city from November 1992 until she retired in February 2013, according to court documents. In 2021, she was diagnosed with mitral valve prolapse and regurgitation. CCMSI, the city’s benefits administrator, denied her claim for permanent total disability, noting that she was retired.

She challenged the denial, but a hearing officer reaffirmed the administrator’s decision. She appealed, and an appeals officer reversed the decision, awarding total disability benefits, which amount to two-thirds of average monthly wages, according to court documents.

The city and CCMSI petitioned for judicial review in District Court, which denied the petition. The Nevada Court of Appeals affirmed the lower court’s decision, allowing her to receive the disability compensation.

Munson said the job took a toll on both her body and spirit. She said many firefighters don’t consider the long-term effects of their work.

“I’ve got to go into a pool and fish out a 3-year-old, in a diaper, that is blue. You carry those children with you,” she said. “You tell me how much it’s worth to fish out a baby in the pool as a first responder. … We’re human beings. We’re not invincible. And this stuff is affecting us at the cellular level.”

Munson, who said she eats right and doesn’t drink or smoke, said she would use the disability compensation to pay for uncovered medical costs.

“I believe in my heart of hearts that the job that we do cuts our lives short,” she said. “Would I do it again? No.”

In the last fiscal year, Munson collected $83,700 from the Public Employees Retirement System, according to public data.

The city of Las Vegas declined to provide information on the amount paid to Munson in disability compensation.

“The city is declining to release any personally identifiable information,” city spokesman Jace Radke wrote in an email.

After the Court of Appeals’ decision in the Munson case, Anderson asked the court to publish an opinion, which it did in June. She wrote, “This Order constitutes a much needed opinion which clarifies the changes of SB 153 Section 6 that is still leaving the Insurers, Employers, and Appeals Officers confused as to its meaning.”

The attorney’s motion identifies some of the similar cases pending in Clark County District Court and the state Supreme Court.

Among them is the case of Wilson Crespo, who retired from the North Las Vegas Police Department in March 2015 after 25 years. He applied for compensation after a diagnosis of coronary artery disease in 2019.

“I left some parts of my body on the street, but it was worth it,” Crespo said at a City Council meeting in October 2022. “There have been nothing but delays in getting all my benefits.”

Crespo sought disability compensation for a heart condition that his physician said left him “permanently incapable of performing his job duties as a police officer, including but not limited to, physical altercations and suspect combat,” according to court records.

Last year he received $137,900 from the Public Employees Retirement System. He now works as a self-employed security professional, according to his LinkedIn page. He declined to comment for this story.

‘Smoked and ate bacon twice a day’

For police officers and firefighters who have been on the job full time for at least two years, a disabling disease of the heart or lungs is “conclusively presumed to have arisen of and in the course of employment,” according to Nevada law. For those who have worked long enough to invoke the presumption, a claim does not have to be tied to a specific incident or accident. The presumed cause is the job itself.

This “conclusive presumption” is intended to recognize the hazards of these occupations, such as exposure to smoke and fumes, and heart-pounding physical exertion and stress. Many other states have similar presumptions.

Senate Bill 153 restricted who would continue to receive the conclusive presumption after leaving the job.

First responders who have separated from service are not eligible for the presumption if they regularly used a tobacco product within a year or had a “material departure from a physician’s prescribed plan of care” within three months before filing a claim for compensation.

The bill also required 20 years’ service before the presumption would continue over the individual’s lifetime. For those serving fewer years but at least two, the presumption would remain in effect after separation for the same number of years served.

First responders previously had lifetime coverage after putting in only a few years of service, said Assemblymember PK O’Neill, R-Carson City, who voted for the reform measure in 2015.

After separating from service, “they smoked and ate bacon twice a day,” the former police officer said. “We made a lot of those changes to protect the state’s liability.”

Lawrence, the government watchdog, said Nevada is the only state that has an “open-ended manifestation period” for those firefighters and police officers with 20 years of service. He cited findings of an ongoing study by New Haven University commissioned by Nevada Policy.

This means that even if heart or lung disease is diagnosed years or even decades after retirement, there remains a presumption that it was caused by the job. In contrast, the presumption in California lasts only five years after separation from employment for those with 20 years of service.

Lawrence described the 2015 Nevada legislation as a good start but said lawmakers should consider further reform, beginning with capping the state’s manifestation period.

O’Neill said he did not think it was unreasonable for legislators to discuss the matter.

Supreme Court: Burden on the employer

Police officers and firefighters are required to have regular physicals while employed. Failure to correct predisposing conditions when ordered by a physician in writing excludes an employee from the benefits of the conclusive presumption “if the correction is within the ability of the employee,” the law states.

A ruling by the Nevada Supreme Court in 2023 puts a greater burden on the employer to show that a predisposing condition is within the employee’s ability to correct.

The case before the court centered on whether Robert Holland, a retired Metropolitan Police Department officer, should be disqualified from receiving occupational benefits for heart disease for failing to correct predisposing conditions. As with the retirement carve-out, cases like Holland’s have resulted in frequent appeals, Hardy said.

Holland, who retired in 2012 after 25 years with the Police Department, was denied occupational heart benefits after having two heart attacks in 2019.

The denial was affirmed first by a hearing officer and then by an appeals officer. Following the same reasoning as the hearing officer, the appeals officer found that while employed, Holland had failed “to correct predisposing factors/conditions on a continuous basis” after being “warned on multiple occasions that failure to do so could result in exclusion from the benefits,” court records show.

The appeals officer cited warnings Holland received in 2011 and 2012 about elevated triglyceride levels and an examining physician’s order to correct them, pointing out that when Holland was admitted to the hospital in 2019, the levels were nearly triple what they had been in 2012.

A district judge reversed the ruling. The judge stated that the earlier written instructions by examining physicians to correct predisposing conditions “were much too general in nature to effect change.” According to the judge, examining physicians did not prescribe any medications to control cholesterol and triglycerides, and “his predisposing conditions were not altered by diet and exercise alone.”

The decision was appealed to the Nevada Supreme Court. It affirmed the lower court’s order, determining that the employer bore the burden to demonstrate that the employee had the ability to correct predisposing conditions.

“The record demonstrates that Holland experienced one of his two heart attacks after visiting the gym, suggesting that he might have increased cardiovascular exercise as directed, and also establishes that he had been seeing a primary care physician concerning his high cholesterol,” the court’s opinion states.

“Although appellants point to evidence showing Holland’s weight increase, rising triglyceride levels, and lack of health improvement over the years, this does not necessarily show that Holland did not follow the recommended corrective actions; rather, it could just as well mean that Holland’s efforts simply failed to correct the precondition, suggesting that the predisposing condition was not actually within his ability to correct.”

Lawrence found it striking that the case “makes no pretense” that Holland developed heart disease as a result of the job.

“The entire argument is about whether the employer demonstrated that he didn’t follow the doctor’s instructions,” he said.

Producing positive evidence, he theorized, might require an employer to “have to spy on the person around the clock to document that they’re not making an attempt” to follow the doctor’s recommendations.

The court determined that Holland was eligible for benefits through the workers’ compensation system. Court documents list his case as one that might be affected by the Munson ruling in determining eligibility for disability benefits, in addition to medical benefits.

Holland, whose LinkedIn profile indicates he works in private security, received $55,400 last year in a government pension from the Public Employees Retirement System. He did not return a reporter’s phone call.

Lawrence said that in some heart and lung cases, lifestyle may play a larger role than occupational hazard in causing disease.

In the U.S., about one in three people die of heart disease, according to the Centers for Disease Control and Prevention. Lung disease is the sixth leading cause of death.

“Most people will get heart or lung disease in their lifetime without ever having been a public safety officer,” Lawrence said. “The benefits packages that we offer have to be based in reality, and I’m not sure that they are in Nevada.”

Contact Mary Hynes at mhynes@reviewjournal.com or at 702-383-0336. Follow @MaryHynes1 on X. Hynes is a member of the Review-Journal’s investigative team, focusing on reporting that holds leaders and agencies accountable and exposes wrongdoing.