CourtListener 9456872

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136 Nev., Advance Opinion 25
IN THE COURT OF APPEALS OF THE STATE OF NEVADA

CITY OF HENDERSON; AND CANNON No. 76295-COA
COCHRAN MANAGEMENT SERVICES,
INC.,
Appellants, FIL
vs.
JARED SPANGLER, MAY 1 4 2020
Respondent.

Appeal from a district court order granting a petition for
judicial review and reversing a denial of workers compensation benefits.
Eighth Judicial District Court, Clark County; Richard Scotti, Judge.
Affirmed and remanded.

Lewis Brisbois Bisgaard & Smith LLP and Daniel L. Schwartz and Joel P.
Reeves, Las Vegas,
for Appellants.

Greenman Goldberg Raby & Martinez and Lisa M. Anderson and Thaddeus
J. Yurek, III, Las Vegas,
for Respondent.

BEFORE GIBBONS, C.J., TAO and BULLA, JJ.

OPINION

By the Court, TAO, J.:
Statistics tell us that most police officers will never be required
to draw, much less fire, their service weapon in the line of duty. But even
when they don't, they still perform a difficult and hazardous job by merely
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being present at the scene of danger. This appeal involves a police officer
who suffered progressive hearing loss that he believes to have been caused,
at least in part, by his job. It's a risk that many officers might eventually
suffer, for even on the best of days the typical police officer is exposed to a
variety of noises that the rest of us might never experience, from such things
as sirens, radio earpieces, shouted commands, and the sound of gunfire—
maybe not from the rare occasion of having to draw a weapon against a
suspect, but much more routinely by being required to regularly qualify on
the shooting range.
This is a workers compensation appeal. Jared Spangler served
as a police officer for the City of Henderson since 2003 and over that time
lost much of his hearing, to the point where he was assigned to desk duty.
He sought compensation under NRS 617.430 and .440, which entitle
employees, including but not limited to police officers, to workers'
compensation benefits if they suffer a disability caused by an "occupational
disease." The complicating factor in this appeal is that Spangler already
had some level of hearing loss, perhaps genetically induced, before he began
his service that his years on the job potentially made worse. Because at
least part of his current hearing disability was attributable to that original
pre-employment loss, the appeals officer denied benefits to Spangler. But
NRS 617.366(1) provides that benefits are due when an employee's current
condition results from an original condition that preexisted the job that was
aggravated or accelerated by an occupational disease contracted from the
job. We conclude that the plain text of this statute does not exclude the
possibility of benefits under those circumstances, so long as the other
requirements set forth in the statute are satisfied. We therefore affirm the

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order of the district court reversing the appeals officer and remand this
matter for further consideration.
FACTUAL AND PROCEDURAL HISTORY
In 2005, while working as a police officer for the City of
Henderson, Jared Spangler sought workers compensation benefits, alleging
that exposure to various loud noises while on patrol caused ringing in his
ears and simultaneous hearing loss. Spangler was examined by Dr. Scott
Manthei, who concluded that Spangler's hearing loss was not work related
and that a nonindustrial cause (perhaps of genetic origin) was behind his
symptoms. The City, through its third-party workers' compensation
administrator, denied Spangler's claim based on Dr. Manthei's report.
Spangler did not appeal that denial, so that claim is closed and cannot now
be revisited.
Still experiencing significant decreased hearing 11 years later,
in 2016 Spangler consulted Dr. Amanda Blake, who opined that Spangler's
exposure to various work-related sounds—including police sirens, gunfire
during range qualifications, and radio chatter from his left ear piece as well
as his lapel microphone—caused the increased hearing loss, which she
opined was an industrial condition. After this consultation, Spangler filed
a second workers' compensation claim alleging that cumulative exposure to
loud noise in different work environments over the years all combined to
worsen his hearing even more than when he filed his 2006 claim. He also
consulted Dr. Roger Theobald to determine the cause of his increased
hearing loss, but Dr. Theobald could not conclusively attribute the loss to
either Spangler's underlying nonindustrial cause or his work environment.
Ultimately, the administrator denied Spangler's second claim because he
failed to establish that his increased hearing loss arose out of his
employment.

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Spangler appealed and, in preparation for his administrative
appeal hearing, sought out a third doctor, Dr. Steven Becker, who opined
that Spangler's bilateral hearing loss and tinnitus were not work related,
but that his work environment was a contributory factor in his increased
hearing loss. The appeals officer affirmed the denial, claiming that
Spangler failed to establish either an "injury by accident" or an occupational
disease that would entitle him to benefits. Spangler then petitioned the
district court for judicial review of the appeals officer's decision. The district
court granted the petition and reversed. The City and its third-party
administrator now appeal from the district court order.
ANALYSIS
On appeal, the City argues that (1) the appeals officer did not
err in interpreting NRS 616A.030s definition of "accident"; (2) the appeals
officer's decision under NRS 616C.175(1) is supported by substantial
evidence, as Spangler did not establish an "injury by accident"; and (3) the
appeals officer's decision under NRS 617.440 is supported by substantial
evidence because Spangler's hearing loss is not a compensable occupational
disease.
Standard of review
On appeal, this court's role in reviewing an administrative
agency's decision in a workers compensation matter is identical to that of
the district court. Elizondo v. Hood Mach., Inc., 129 Nev. 780, 784, 312 P.3d
479, 482 (2013). We do not defer to the district court's decision when
reviewing an order deciding a petition for judicial review. Id. Instead, we
examine the administrative agency's "fact-based conclusions of law" for
clear error or an abuse of discretion, and we will not disturb them if
supported by substantial evidence. Grover C. Dils Med. Ctr. v. Menditto,
121 Nev. 278, 283, 112 P.3d 1093, 1097 (2005). "Substantial evidence" is

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defined as "evidence which a reasonable mind might accept as adequate to
support a conclusion," regardless of whether we ourselves would reach the
same conclusion had we been in the appeals officer's place. Horne v. State
Indus. Ins. Sys., 113 Nev. 532, 537, 936 P.2d 839, 842 (1997) (internal
quotation marks omitted). We will not reweigh the evidence or substitute
our judgment for that of the appeals officer on a question of fact. Id.
However, we review de novo an administrative agency's conclusions of law,
including its interpretation of the relevant statutes. Star Ins. Co. v.
Neighbors, 122 Nev. 773, 776, 138 P.3d 507, 509-10 (2006).
Broadly speaking, employees may seek workers compensation
benefits for two types of work-induced conditions. An employee may seek
compensation for a work-related "injury" under the provisions of NRS
Chapters 616A-D, or an employee may seek compensation for an
"occupational disease" under the provisions of NRS Chapter 617.
Whether Spangler's hearing loss constitutes a compensable "injury by
accident" under NRS Chapters 616A-D
We first address whether Spangler's claim satisfies NRS
Chapters 616A-D. Spangler may only recover under these statutes if he
suffered an "injury," defined in NRS 616A.265 as "a sudden and tangible
happening of a traumatic nature, producing an immediate and prompt
result." Moreover, he may only recover compensation for such injuries if
they resulted from an "accident," defined as "an unexpected or unforeseen
event happening suddenly and violently, with or without human fault, and
producing at the time objective symptoms of an injury." NRS 616A.030.
The words of this latter statute are plain and unambiguous, so we must
follow them as written. Poole v. Nev. Auto Dealership lnvs., LLC, 135 Nev..
280, 283, 449 P.3d 479, 482 (Ct. App. 2019). According to the Nevada
Supreme Court, these words mean exactly what they say: that "[i]n order

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for an incident to qualify as an accident, the claimant must show the
following elements: (1) an unexpected or unforeseen event; (2) happening
suddenly and violently; and (3) producing at the time . . . objective
symptoms of injury." Bullock v. Pinnacle Risk Mgmt., 113 Nev. 1385, 1389,
951 P.2d 1036, 1039 (1997).
Spangler's increased hearing loss does not fall within this
statutory definition because he cannot identify a single incident which
caused hearing loss at the moment it happened, but rather, he only alleges
that his hearing worsened gradually and progressively over time, unrelated
to any single sudden incident or even a series of sudden incidents. Even if
he could tie his hearing loss retrospectively to any such single accident, he
does not allege that his symptoms appeared immediately thereafter. The
reports of all three physicians whose opinions were presented to the appeals
officer (Dr. Blake, Dr. Theobald, and Dr. Becker) agree that Spangler's
increased hearing loss and tinnitus resulted from accumulated exposure
over time and not from any single sudden and violent incident which
immediately induced injury at that moment. Consequently, we must
conclude that substantial evidence supports the decision of the appeals
officer that Spangler could not establish an "injury by accident" and he
cannot recover under NRS Chapters 616A-D.
Whether Spangler's hearing loss constitutes a compensable "occupational
disease" under NRS Chapter 617
The more complex question in this case is whether Spangler's
hearing loss qualifies as a compensable "occupational disease" under NRS
617.440. NRS Chapter 617 provides benefits to employees who either die
or suffer a "disability," whether temporary or permanent and whether total
or partial, from an occupational disease. See NRS 617.430. NRS 617.440
lists the requirements for determining whether an employee's physical state

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could be an occupational disease eligible for compensation. When an
employee attempts to establish that his or her disease arose out of
employment and is thus compensable, the employee "must show, with
medical testimony, that it is more probable than not that the occupational
environment was the cause of the acquired disease." Seaman v. McKesson
Corp., 109 Nev. 8, 10, 846 P.2d 280, 282 (1993). An employee is not entitled
to compensation from the mere contraction of an occupational disease, but
rather must show "a disablement resulting from such a disease." Employers
Ins. Co. of Nev. v. Daniels, 122 Nev. 1009, 1014, 145 P.3d 1024, 1027 (2006)
(quoting Prescott v. United States, 523 F. Supp. 918, 927 (D. Nev. 1981)).
Here, Spangler alleges that he originally suffered from hearing
loss (possibly of genetic origin) that preexisted his employment, but that his
employment then made Ms hearing much worse to the point where he could
no longer serve in the field and has been limited to desk duty. Thus, he
alleges that NRS 617.440 covers his current disablement due to hearing loss
even though part of the loss may have preexisted his employment.
The meaning of "preexisting"
Before we can compare Spangler's allegations and evidence to
the requirements set forth in the statute, we must clarify some terminology.
In its jurisprudence over the past two decades, the Nevada Supreme Court
has at times used the phrase "preexisting" to mean two very different
things, only one of which relates to claims like Spangler's. On the one hand,
when dealing with certain types of claims, the court has used the term to
refer to physical symptoms or a physical state that did not exist before the
employee began working and only developed for the first time during the
employment, but for which the employee never previously sought benefits
before filing a claim much later. In this usage, the court has sometimes said
that the symptoms "preexisted" the current claim for benefits even though

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they did not necessarily preexist the employment itself. An example of this
is Morrow v. Asamera Minerals, 112 Nev. 1347, 929 P.2d 959 (1996), which
broadly states that "a claimant may receive compensation where it is found
that the occupation aggravates a preexisting condition." Id. at 1354, 929
P.2d at 964 (citing Desert Inn Casino & Hotel v. Moran, 106 Nev. 334, 337,
792 P.2d 400, 402 (1990)). Morrow involved a miner who suffered work-
incurred back problems that became progressively worse over the course of
the 30 years during which he continued to work as a miner. Id. at 1348,
929 P.2d at 960. He sought compensation not for the original disease (even
though it arose after he began working as a miner), but only for the
aggravation of it over time. See id. at 1348-49, 929 P.2d at 960. The
supreme court held his claim to state a compensable condition. Id. at 1354,
929 P.2d at 964.
Thus, Morrow actually addressed a scenario very different from
Spangler's claim: Morrow involved a physical manifestation that did not
exist before the job but did worsen over the course of employment, while
Spangler's claim seeks compensation for hearing loss of possible genetic
origin that was not originally incurred while working but rather pre-dated
his employment to some extent and then worsened over the course of his
employment. As used in Morrow, the term "preexisting" refers not to
something that existed before employment ever began, but only to
something that first developed on the job but for which no previous claim
was made; it "preexisted" the current claim but not the employment itself.
A number of other cases use the term in this same way. See
Desert Inn, 106 Nev. at 337, 729 P.2d at 402 (stating that it implicitly used
the term in this manner in State Industrial Insurance System v.
Christensen, 106 Nev. 85, 88, 787 P.2d 408, 409-10 (1990)). Desert Inn

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involved a masseuse who entered into her employment with no preexisting
genetic disease or injury but then developed hand issues on the job that
worsened over the course of employment. 106 Nev. at 335, 792 P.2d at 401-
02. The court specifically noted that her "degenerative joint disease
qualifies as an occupational disease which arose out of and in the course of
her employment," and then "[als she continued her employment, her
problems worsened." Id. at 337, 792 P.2d at 402. She never filed a claim at
the time of initial onset of the disease but only after its aggravation, and
the court concluded that she was entitled to compensation for her
occupational disease under NRS 617.440. Id. Thus, like Morrow, Desert
Inn uses the word "preexisting" not to mean that her disease existed before
she started working, but only to mean that it developed on the job before
she filed her later claim seeking compensation for its aggravation over time.
State Industrial Insurance System v. Christensen is much like
Morrow and Desert Inn, involving a claim for an occupational disease that
only developed on the job and did not exist before employment. 106 Nev. at
86, 787 P.2d at 408. A welder and steamfitter who worked for 40 years
discovered he had developed asbestosis from on-the-job exposure. Id. at 86,
787 P.2d at 408-09. He was originally diagnosed in 1978 but did not file a
claim at that time, only seeking compensation years later in 1985 after his
symptoms worsened to the point where he became unable to work. Id. at
86-87, 787 P.2d at 409. The court found that he had stated a proper claim
for compensation for an occupational disease based upon the aggravation of
his asbestosis and remanded the matter for further fact-finding. Id. at 88,
787 P.2d at 409-10.
But on the other hand, with other types of claims the term
"preexisting" means something else entirely, namely, a disease or symptom

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that preexisted not merely the current claim, but the employment itself.
The clearest example of this lies in NRS 617.366, a statute that neither
party cites in their briefing but which appears to actually govern Spangler's
claim. NRS 617.366 states as follows:
1. The resulting condition of an employee who:
(a) Has a preexisting condition from a cause or
origin that did not arise out of and in the course of the
employee's current or past employment; and
(b) Subsequently contracts an occupational
disease which aggravates, precipitates or accelerates
the preexisting condition,
shall be deemed to be an occupational disease that is
compensable pursuant to the provisions of chapters
616A to 617, inclusive, of NRS, unless the insurer can
prove by a preponderance of the evidence that the
occupational disease is not a substantial contributing
cause of the resulting condition.
2. The resulting condition of an employee who:
(a) Contracts an occupational disease; and
(b) Subsequently aggravates, precipitates or
accelerates the occupational disease in a manner that
does not arise out of and in the course of his or her
employment,
shall be deemed to be an occupational disease that is
compensable pursuant to the provisions of chapters
616A to 617, inclusive, of NRS, unless the insurer can
prove by a preponderance of the evidence that the
occupational disease is not a substantial contributing
cause of the resulting condition.

Section 1 of this statute addresses an aggravation of a "condition" that
preexisted the employment itself, not one that merely preexisted the claim.
Under it, such an aggravation is not compensable unless an occupational
disease is also independently established. Garcia v. Scolari's Food & Drug,
125 Nev. 48, 51, 200 P.3d 514, 517 (2009). Thus, NRS 617.366(1) uses the

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phrase "preexisting" in the same sense that Spangler uses it, which is not
the sense in which Morrow,, Desert Inn, and Christensen use it.
Consequently, Spangler's claim is best resolved under NRS 617.366 rather
than Morrow, Desert Inn, and Christensen.
To sum up, the statutory scheme contemplates claims arising
from four discrete types of "preexisting" conditions that are all handled
differently: (1) an employee who develops an occupational disease for the
first time on the job that becomes further aggravated over the course of the
employment, even when the initial onset of the disease "preexisted" the final
condition that gave rise to the claim for compensation, a scenario governed
by Morrow, Desert Inn, and Christensen; (2) an employee who entered a job
with a disease that preexisted the employment and was subsequently
aggravated by an industrial accident causing "sudden injury" that made the
original disease worse, a scenario governed by NRS Chapters 616A-D,
(3) an employee who initially entered the employment with a "condition"
that preexisted the employment itself and was subsequently aggravated,
precipitated, or accelerated by the onset of an "occupational disease that
the employee first contracted while working, a scenario governed by NRS
617.366(1); and (4) an employee who contracted an occupational disease and
suffered the nonindustrial aggravation of that occupational disease, a
scenario governed by NRS 617.366(2). Of these four, Spangler's claim falls
under NRS 617.366(1), as he claims to have entered employment with a
condition that partially preexisted the employment and may have worsened
over time by itself, but whose course was aggravated or accelerated by an
occupational disease.

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The meaning of "condition" and "occupational disease" within the
statutes
Spangler's claim thus must be analyzed under NRS 617.366(1):
he entered employment with hearing loss that preexisted the job and that
he alleges was made worse by his work conditions. The question before us
is whether his evidence meets the requirements of the statute. However,
attempting to apply NRS 617.366(1) to his claim poses another terminology
problem: the statute contains important terms that are not defined
anywhere in the statute, namely, "condition" and "occupational disease."
The plain language of the statute quite clearly assumes that there exists a
meaningful difference between the two things (awarding compensation
when a "condition" is aggravated by an "occupational disease"), yet does not
define the two in any independent way.
Workers compensation law is entirely a creation of statute with
no historical roots or tradition anywhere in common law. Quite to the
contrary, it represents a clear legislative departure from ancient and
established common-law principles of liability. See Richard A. Epstein, The
Historical Origins and Economic Structure of Workers' Compensation Law,
16 Ga. L. Rev. 775, 787-89 (1982). Consequently, we must apply the statute
faithfully as written, with no power to change or rewrite the statutory
mandates. "It is the prerogative of the Legislature, not this court, to change
or rewrite a statute." Holiday Ret. Corp. v. State, Div. of Indus. Relations,
128 Nev. 150, 154, 274 P.3d 759, 761 (2012). Nor can we ignore statutes or
apply them selectively: "[wl hen a statute is clear, unambiguous, not in
conflict with other statutes and is constitutional, the judicial branch may
not refuse to enforce the statute on public policy grounds. That decision is
within the sole purview of the legislative branch." Beazer Homes, 120 Nev.
at 578 n.4, 97 P.3d at 1134 n.4; see City of Las Vegas v. Eighth Judicial Dist.
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Court, 118 Nev. 859, 867, 59 P.3d 477, 483 (2002) (invalidating vague
statute because, to enforce it, "this court would have to engage in judicial
legislation and rewrite the statute substantially"), abrogated on other
grounds by State v. Castaneda, 126 Nev. 478, 482 n.1, 245 P.3d 550, 553 n.1
(2010). Emphatically, our goal is not to rewrite the statute into one that we
think might work better than the one the Legislature actually drafted and
voted upon and that the Governor signed. Doing so would risk amending
legislation outside the "single, finely wrought and exhaustively considered,
procedure" the Constitution commands. INS v. Chadha, 462 U.S. 919, 951
(1983). We would risk, too, upsetting reliance interests in the settled and
established meaning of a statute. Cf. 2B Norman J. Singer & J.D. Shambie
Singer, Statutes and Statutory Construction § 56A:3 (rev. 7th ed. 2012).
As applied to this case, Spangler may recover compensation if
he had a "preexisting condition" that was aggravated or accelerated by an
"occupational disease he later contracted on the job. We know that
Spangler came to the job with some pre-employment hearing loss of possible
genetic origin, and then as a police officer was exposed to loud noises that
made the hearing loss worse. Did he originally suffer from a preexisting
"condition" that was aggravated by "occupational disease? That depends
upon whether his original pre-employment hearing loss was a "condition"
or something else under NRS 617.366. It then further depends upon
whether his exposure to loud noises on the job resulted in his contracting
an "occupational disease that aggravated his original hearing loss, or
rather was merely a job-related aggravation of his original hearing loss that
did not rise to the level of an "occupational disease."
In this case, however, we need not dive too deeply into the
statutory text, as neither party disputes that the current state of Spangler's

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hearing loss was the kind of thing theoretically eligible for compensation as
an occupational disease. In their briefing below and on appeal, both parties
agreed that his current hearing loss could potentially qualify as an
occupational disease but disagreed regarding whether sufficient evidence
supported the appeals officer's conclusion that the current state of his
hearing loss was not sufficiently connected to his employment under NRS
617.440. Thus, we must conclude that Spangler's claim was of a kind
eligible for compensation under NRS 617.366 when he alleges that he
suffered from a condition that preexisted his employment and whose course
was aggravated or accelerated by the onset of an occupational disease that
he contracted from the job.
The appeals officer's findings of fact and conclusions of law
The next step of the inquiry is to assess whether the appeals
officer's denial of Spangler's claim was justified in light of the evidence
presented below. Dr. Theobald opined that "there is a high likelihood that
there is an underlying condition that may be contributing to Mr. Spangler's
hearing loss," but also opined in the very next sentence that "there is a high
probability that Mr. Spanglees threshold shift may be as a result of on the
job noise exposure." Similarly, Dr. Blake opined that Spangler lost some
hearing before becoming a police officer but that he also suffered further
loss due to noise exposure. Dr. Becker opined that Spangler's condition was
originally not work related, but he also noted that the hearing loss became
"steadily" worse over the course of Spangler's employment. Thus, every
physician opined that Spangler's hearing loss had some preexisting
component that was rnade substantially worse by his employment over the
years.

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In weighing these medical reports, the appeals officer found
that Spangler had not met his burden of proof, "especially given the prior
2006 claim denial and the intervening primarily desk job assignment." The
appeals officer sets forth no other factual findings supporting his conclusion.
Fairly read, the appeals officer seems to mean that in 2006, Spangler was
found to have had some combination of preexisting hearing loss coupled
with some job-related exposure to loud noises that resulted in the denial of
his 2006 claim, and that his job-related exposure to noise was reduced after
he was later assigned to a desk job. Putting these together logically, the
conclusion appears to be that Spangler has not met his burden of proof
because he failed to prove that the current level of his hearing loss was
entirely attributable to his employment.
l3ut the appeals officer incorrectly interpreted NRS 617.440,
which draws no distinction between conditions that originated wholly on
the job and those that previously existed in some form before the job but
were made worse by an occupational disease incurred on the job. The
appeals officer also ignored NRS 617.336(1), which goes beyond NRS
617.440 to specifically provide for compensation when a condition that
preexisted the job was aggravated, precipitated, or accelerated by the
contraction of an occupational disease. Under the plain words of these
statutes, Spangler would be entitled to compensation if he can prove that
the current level of his hearing loss resulted from some combination of a
preexisting condition that was made worse by an occupational disease that
he subsequently contracted on the job. Contrary to the appeals officer's
conclusion, the statutes do not permit denial of compensation solely on the
grounds that some of Spangler's current level of hearing loss preexisted his
employment. They only permit denial when either (1) his current level of

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hearing loss resulted wholly from the original preexisting condition alone
and would have naturally progressed to be exactly the same today even if
he had never held the job of police officer for a single day, or (2) his original
pre-employment hearing loss worsened over the course of his employment
but not because of any "occupational disease."
This interpretation is not only mandated by the text, but is also
consistent with the "last injurious exposure rule" set forth in Grover C. Dils
Medical Center v. Menditto, 121 Nev. 278, 284, 112 P.3d 1093, 1097-98
(2005). It can even be said to be something of an analogy to or extension of
the "last injurious exposure rule." Under that rule, if an injured employee
has worked for different employers and alleges that he or she suffered
various injuries or aggravations of injuries under each, the responsibility to
pay workers compensation falls upon the liability carrier for the employer
at the time of the injury. A new injury or a new aggravation of a prior injury
is the responsibility of the most recent employer, but a mere recurrence of
a previous injury suffered under a former employer is the responsibility of
the former employer. Id. at 284, 112 P.3d at 1098. A new injury or new
aggravation must amount to "more than merely the result of the natural
progression of the [original or prior] disease or condition." Id. at 287, 112
P.3d at 1099. In a sense, NRS 617.366 can be said to apply this rule to
situations in which the employee had no prior employment under which he
or she either originally incurred or aggravated the condition. In those
situations, even if the condition was originally genetically inherited and
always present since birth in some limited form, after later becoming
employed, the employee may nonetheless be entitled to compensation if his
or her current employment triggered an occupational disease that
aggravated the original condition beyond its natural progression. On the

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other hand, if the current state of the condition is nothing more than a mere
recurrence of the same condition that was always present and does not
constitute a new aggravation of it beyond its the natural progression
without the employment, then no compensation is due.
Here, the appeals officer's decision is brief and therefore not
entirely clear, but one reasonable interpretation of it (and perhaps the most
reasonable interpretation of it) is that it appears to deny compensation
solely because some, even though not all, of Spangler's hearing loss was
partially attributable to a condition that preexisted his employment rather
than being entirely the product of an occupational disease. If that is what
the decision meant to say, it is legally incorrect. Had the appeals officer
made clearer factual findings more consistent with the statutes, we would
be required to defer to them, as we "shall not substitute [our] judgment for
that of the agency as to the weight of evidence on a question of fact? NRS
233]3.135(3). But based upon the factual findings we have, the most natural
interpretation of them is that the appeals officer applied the statutes
incorrectly as a matter of law.
CONCLUSION
Because the appeals officer appeared to have improperly
applied NRS 617.366 to the evidence before it, we remand this matter for
further proceedings consistent with this opinion. We therefore affirm the
district court's order granting Spangler's petition for judicial review, but on
different grounds than those set forth by the district court, and remand with

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instructions that the district court refer the matter back to the appeals
officer for further proceedings as noted herein.

J
Tao
We concur:

, C.J.
Gibbons

Bulla

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