Contract sale - 2026 annual sale / ADT guard injured while driving sues for workers comp January 5, 2026

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Contract sale - 2026 annual sale / ADT guard injured while driving sues for workers comp
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ADT Employee sues for workers comp - guard responder injured in auto crash on way to break-in
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    The outcome in this case took my by surprise.  Let's see what you think.
    Armed ADT guard was responding to a burglary signal and was driving to the site.  He got into a vehicular accident and was seriously injured.  Sounds fairly straightforward and seems like he would be entitled to workers comp, which covers employee injury when they are injured on the job performing their job duties.  
    The Workers Comp Hearing Officer found that the cause of the accident was that the employee fell asleep at the wheel.   The governing law here is Nevada Industrial Insurance Act (NIIA) and the specific law is  "The street-risk rule" which provides that an injury is compensable so long as the employee's duties require a presence upon public streets and the “injury arose from an actual risk of presence upon the streets. The hearing officer acknowledged, and the parties do not dispute, that employee was in the course and scope of his employment at the time of the accident and that he sustained injuries. The hearing officier found that the  employee to demonstrate that the act of falling asleep was related to a risk of being present on the streets.  Though recognizing that the injury occured during the course of employment it did not arise because of the injury was not caused by an inherent risk of traveling on the street, but by the employee falling asleep.  There is causal relationship between the injury and the inherent risk. The Nevada court  ruling relied on a Virginia case where the court also found that falling asleep while driving was a personal condition, analogous with a medical  condition, that the injury not attributable to any action taken by the employer.
    The employee argued that ADT policies was to blame, specifically, that an employment risk existed because ADT either lacked adequate policies, procedures, or training, or failed to follow the same as demonstrated by the fact that ADT knew he had a propensity for falling asleep on the job yet it permitted him to drive in connection with his employment.  The argument was rejected, as follows:
    "In concluding that Bright was not entitled to workers’ compensation under a mixed-risk analysis, the appeals officer found that “the employer did not have any inadequate policies, procedures or training that [led] to the motor vehicle accident” and that “the employer did not fail to do anything that could have prevented or decreased [Bright]’s injury.” Relevant to these findings, during the administrative proceedings, Bright failed to present any evidence indicating what the standard practice in the industry is for circumstances similar to those presented here or whether ADT had, and followed, appropriate policies, procedures, and training to address this situation. Absent such evidence, ADT's knowledge that Bright had previously fallen asleep on the job is insufficient to demonstrate that ADT failed to take any action that could have prevented or decreased his injury."
    The case is below
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2025 WL 3686951
Unpublished Disposition
Only the Westlaw citation is currently available.
This is an unpublished disposition. See Nevada Rules of Appellate Procedure, Rule 36(c) before citing.
Court of Appeals of Nevada.
DWAYNE BRIGHT, Appellant,
v.
ADT SECURITY SERVICES, INC. AND THEIR THIRD-PARTY ADMINISTRATOR, GALLAGHER BASSETT SERVICES, Respondents.
No. 89262-COA
DECEMBER 18, 2025
ORDER OF AFFIRMANCE
*1 Dwayne Bright appeals from a district court order denying a petition for judicial review in a workers’ compensation matter. Eighth Judicial District Court, Clark County; Maria A. Gall, Judge.
While responding to a call as an armed patrol officer for respondent ADT Security Services, Inc. (ADT), Bright fell asleep while driving and hit the car in front of him with enough force that his airbags deployed.1 Bright's supervisor was subsequently notified of the incident and responded to the scene of the accident. Bright was ultimately taken by ambulance to Summerlin Hospital and was treated for injuries to his head and knee/leg. As a result of his injuries, Bright filed a workers’ compensation claim with respondent Gallagher Bassett Services, ADT's third-party administrator for its workers’ compensation insurance. Gallagher Bassett denied Bright's workers’ compensation claim because “it cannot be established that the injury sustained occurred out of the course and scope of [Bright's] employment.”
Bright challenged the denial of his claim alleging that his accident fell under the street-risk rule which permits coverage for injuries arising out of employment related to a risk of driving on public streets. As articulated in Bob Allyn Masonry v. Murphy, 124 Nev. 279, 285-86, 183 P.3d 126, 130 (2008), the street-risk rule is one method for establishing that an injury arose from employment to recover workers’ compensation benefits under the Nevada Industrial Insurance Act (NIIA).2 The street-risk rule provides that an injury is compensable so long as the employee's duties require a presence upon public streets and the “injury arose from an actual risk of presence upon the streets.” Id. (internal quotation marks omitted). The hearing officer acknowledged, and the parties do not dispute, that Bright was in the course and scope of his employment at the time of the accident and that he sustained injuries. But the hearing officer affirmed the denial of Bright's claim because it found Bright failed to demonstrate that the act of falling asleep was related to a risk of being present on the streets.
Bright then appealed the hearing officer's decision to the appeals officer. Bright argued that he was entitled to workers’ compensation benefits under both the street-risk rule and the mixed-risk analysis adopted in Baiguen v. Harrah's Las Vegas, LLC, 134 Nev. 597, 601, 426 P.3d 586, 591 (2018), which allows workers’ compensation claimants to recover when a personal risk and an employment risk combine to produce an injury. The appeals officer found that, although it was undisputed that Bright was in the course of his employment when the accident occurred and he sustained injuries, his injuries did not arise out of his employment. In reaching its decision, the appeals officer found that, while Bright's job required his presence on the streets, and a car accident was an actual risk of such presence, the cause of the accident was Bright falling asleep, and therefore the accident was not caused by an inherent risk of traveling on streets and highways, which would require workers’ compensation benefits to be awarded.
The appeals officer also denied benefits under the mixed-risk analysis. The appeals officer noted that, in Baiguen, the supreme court held that the mixed-risk rule “places responsibility on the employer when its failing or shortcoming contributed to the employee's injury.” The appeals officer found that, while falling asleep constituted a personal risk, “the effects of [Bright] falling asleep behind the wheel were exacerbated by the fact that he was driving a vehicle for his employment” when the accident occurred. Nevertheless, the appeals officer found that, unlike in Baiguen, ADT “did not have inadequate policies, procedures, or training that [led] to the motor vehicle accident,” and thus ADT did not fail to take any action that could have prevented or decreased his injuries, and therefore the appeals officer denied benefits under the mixed-risk analysis.
Bright subsequently petitioned the district court for judicial review, which was denied. This appeal followed.
On appeal, Bright argues that the appeals officer erred as a matter of law by improperly assigning him fault by finding that his falling asleep at the wheel prevented him from recovering workers’ compensation under the street-risk rule even though the NIIA is a no-fault system. Bright specifically challenges the supreme court's conclusion in Murphy that an employee cannot recover under the street-risk rule if the employee's medical condition is the cause of a vehicle accident in which the employee is injured.3 Murphy, 124 Nev. at 286 & n.25, 183 P.3d at 131 & n.25. Bright further argues that, assuming the street-risk rule does not apply, the mixed-risk analysis in Baiguen does, and supports providing him with benefits because of his employer's involvement with his training.
In turn, respondents argue that Bright is not entitled to workers’ compensation benefits, as there is no causal connection between Bright's injuries and any employment risk because falling asleep while driving is a personal or nonindustrial risk. They maintain that the causal connection requirement adopted by the Nevada Supreme Court is not the same as assigning fault, which they concede is not a consideration in workers’ compensation cases. Further, they argue that Bright was not entitled to compensation based on a mixed-risk analysis under Baiguen because Bright's injuries are the result of a personal condition, and not attributable to any action taken by his employer.
This court's standard for reviewing petitions for judicial review is identical to that of the district court. Elizondo v. Hood Mach., Inc., 129 Nev. 780, 784, 312 P.3d 479, 482 (2013). In this context, “this court examines the administrative decision for clear error or abuse of discretion.” Grover C. Dils Med. Ctr. v. Menditto, 121 Nev. 278, 283-84, 112 P.3d 1093, 1097 (2005). While “we independently review purely legal determinations,” on issues of fact and fact-based conclusions of law, this court will not disturb the appeals officer's decision if it is supported by substantial evidence. Id. Substantial evidence is evidence that a reasonable person could accept as adequate to support a conclusion. NRS 233B.135(4); Campbell v. Nev. Tax Comm'n, 109 Nev. 512, 516, 853 P.2d 717, 719 (1993).
In a workers’ compensation dispute, the employee bears the burden of proving his case by a preponderance of the evidence. NRS 616C.150(1). Relevant here, the employee bears the burden of proving that his “injury arose out of and in the course of [his] employment.” NRS 616C.150(1) (emphasis added). The requirements that an injury arise out of employment and that the injury be sustained in the course of employment are conjunctive. See NRS 616C.150; see also Wood v. Safeway, Inc., 121 Nev. 724, 733, 121 P.3d 1026, 1032 (2005) (stating that injuries within the coverage of the NIIA must both arise out of the employment and occur within the course of employment).
*3 Here, it is undisputed that Bright was injured in the course of his employment. Thus, the parties’ primary dispute is whether Bright's injuries arose out of his employment such that he is entitled to recovery under the street-risk rule or mixed-risk analysis.
The appeals officer did not err in finding that Bright was not entitled to workers’ compensation benefits under the street-risk rule
In Murphy, the supreme court explained that an injury is compensable if an employee's duties require a presence on public streets and the employee's injuries are caused by a risk inherent to traveling on streets and highways. 124 Nev. at 285-86, 183 P.3d at 130. In other words, when an employee must use “streets and highways to carry out his employment obligations, the risks of those streets and highways are thereby converted to risks of employment. If the employee can demonstrate that his injury was occasioned by those risks, his injury will be deemed to have arisen out of the employment.” Id. at 286, 183 P.3d at 130. However, the Murphy court further explained that if a worker's injuries “were not caused by a risk inherent to his [or her] use of the streets and highways, but rather by some other, nonindustrial risk,” then the worker's injuries could not be said to have arisen out of employment. Id. at 286, 183 P.3d at 131. Thus, under the street-risk rule, Bright was required to demonstrate “a causal connection between the injury and the employee's work, in which the origin of the injury is related to some risk involved within the scope of employment.” Id. at 283, 183 P.3d at 129 (internal quotation marks omitted).
Here, the appeals officer determined that Bright failed to qualify for benefits under the street-risk rule because the evidence and arguments presented, and the circumstances of the incident demonstrated, that the cause of his accident was a personal risk—falling asleep while driving—rather than an actual risk inherent to the streets and highways. And Bright concedes in his opening brief that falling asleep was a personal risk.4 Given this concession, and applying Murphy as we are constrained to do, Bright's injuries caused solely by the personal risk of falling asleep are not compensable. Murphy, 124 Nev. at 286, 183 P.3d at 131.
Notably, Bright failed to present any evidence below to show that his accident was caused by an actual risk of the road, such as a hazardous road condition or the actions of another driver, or that he fell asleep due to some condition of his employment, such as long or unusual hours. See NRS 616C.150(1) (stating that it is the claimant's burden to prove his case by a preponderance of the evidence). Nonetheless, Bright maintains that he is entitled to compensation under the street-risk rule because he was injured while driving on public streets as required by his job. More specifically, he argues that Murphy’s carveout for nonindustrial risks does not apply in this case to render his injuries non-compensable because Murphy only precluded medical conditions from being a risk inherent to driving. In contrast, Bright contends, falling asleep is a normal human occurrence that therefore inheres to all driving on public roads.
*4 While Nevada courts have not considered whether falling asleep at the wheel is a risk inherent to driving, the Virginia Court of Appeals, relying on an analogous street-risk rule that likewise required a causal connection between employment and the resulting injury for such an injury to be compensable, has addressed this question. See Norris v. ETEC Mech. Corp., 822 S.E.2d 23 (Va. Ct. App. 2018). In particular, the Norris court held that falling asleep while driving did not create a compensable injury unless there was some “linkage between ‘dozing off’ resulting in an accident and [the employee's] work requirements other than his operation of a company vehicle.” Norris, 822 S.E.2d at 29 n.4. And because the claimant in Norris failed to establish the necessary link between falling asleep while driving and the requirements of his employment, the Norris court determined that the claimant's injury was not compensable under the street-risk rule. Id. at 29.
Thus, Norris demonstrates that falling asleep behind the wheel should not be deemed a risk inherent to the streets and highways, but instead should be treated as a nonindustrial risk analogous to a medical condition. Indeed, the foregoing is consistent with Bright's own concession that falling asleep is a personal risk. As in Norris, because there is no evidence in the record to demonstrate that an actual risk inherent to the streets and highways caused Bright's accident or that there was some link between Bright falling asleep and a risk of being present on the road, Bright's argument in this regard does not provide a basis for relief.
We recognize Bright's argument that failure to permit workers’ compensation benefits for an accident based on the street-risk rule due to falling asleep while driving, versus some other condition of the road, appears to impose fault on Bright for falling asleep. And we agree that fault cannot be a consideration in awarding benefits.5 Nevertheless, Nevada courts have routinely required a causal link between the injury and employment to establish that an injury arose out of employment. See Mitchell v. Clark Cnty. Sch. Dist., 121 Nev. 179, 182, 111 P.3d 1104, 1106 (2005) (holding that, even though the employer caused the employee to be in the position where her own tripping would cause greater injury than the employee would otherwise have suffered, the employee's personal risk of tripping caused the accident, rendering the injury non-compensable); Murphy, 124 Nev. at 283, 183 P.3d at 129 (holding that the mere presence of an employment risk at the time of accident did not, as a matter of law, imply that the injury was caused by employment risks). And because, for the reasons set forth above, Bright cannot demonstrate the required causal link between his injury and his employment under the street-risk analysis articulated in Murphy, we discern no abuse of discretion in the appeals officer's determination that Bright was not entitled to workers’ compensation under the street-risk rule. See Murphy, 124 Nev. at 285-86, 183 P.3d at 130.
The appeals officer did not err in finding that Bright was not entitled to workers’ compensation under the mixed-risk analysis
*5 There are three types of risk that an employee may encounter during employment: (1) personal risks; (2) employment risks; and (3) neutral risks. Rio All Suite Hotel & Casino v. Phillips, 126 Nev. 346, 351, 240 P.3d 2, 5-6 (2010). Injuries caused solely by personal risks, which are risks so personal that they could not possibly be attributed to employment, are non-compensable. Id. In contrast, injuries caused by employment risks, which are “all the obvious kinds of injur[ies] that one thinks of at once as industrial injur[ies],” are generally deemed to arise out of employment and are compensable. Id. (internal quotation marks omitted). Neutral risks are of neither distinctly employment nor distinctly personal character and are compensable “if the employee was subjected to a greater risk than the general public due to the employment.” Baiguen, 134 Nev. at 601, 426 P.3d at 591.
In Nevada, the mixed-risk analysis allows workers’ compensation claimants to recover when a personal risk and an employment risk combine to produce an injury. Id. at 601, 426 P.3d at 591. “A mixed risk arises out of the employment if the employment risk was a contributing factor in the injury.” Id. For example, in Baiguen, an employee suffered a stroke while he was arriving at work, and his employer failed to render appropriate aid, which allegedly exacerbated the effects of the stroke and resulted in a lost chance of recovery. Id. at 597-98, 601, 426 P.3d at 588-89, 591. The supreme court concluded that the mixed-risk analysis applied, reasoning that, although the employee's stroke itself was a personal risk, it combined with an employment risk—namely, that the employer would fail to adequately respond to the employee's medical emergency due to inadequate policies, procedures, or training, or a failure to follow existing policies, procedures, or training—to produce his injuries. Id. at 602-03, 426 P.3d at 591-92.
To prevail under the mixed-risk analysis, Bright must establish by a preponderance of the evidence that an employment risk combined with a personal risk of falling asleep to produce his injuries. See NRS 616C.150(1) (providing that an employee must establish by a preponderance of the evidence that an employment risk was a contributing factor in the injury). And here, the record demonstrates that Bright has failed to do so. Notably, Bright has failed to show that he was drowsy due to some aspect of his employment, nor can he rely on the street-risk rule to establish an employment risk given that there is no evidence in the record to show that a risk inherent to the streets and highways caused his accident.
Nonetheless, Bright looks to overcome this failure by analogizing the facts of this case to those presented in Baiguen and arguing that, like the employer in that case, an employment risk existed because ADT either lacked adequate policies, procedures, or training, or failed to follow the same as demonstrated by the fact that ADT knew he had a propensity for falling asleep on the job yet it permitted him to drive in connection with his employment. But that argument is unavailing.
In concluding that Bright was not entitled to workers’ compensation under a mixed-risk analysis, the appeals officer found that “the employer did not have any inadequate policies, procedures or training that [led] to the motor vehicle accident” and that “the employer did not fail to do anything that could have prevented or decreased [Bright]’s injury.” Relevant to these findings, during the administrative proceedings, Bright failed to present any evidence indicating what the standard practice in the industry is for circumstances similar to those presented here or whether ADT had, and followed, appropriate policies, procedures, and training to address this situation. Absent such evidence, ADT's knowledge that Bright had previously fallen asleep on the job is insufficient to demonstrate that ADT failed to take any action that could have prevented or decreased his injury.
*6 It was Bright's burden to adduce sufficient evidence and testimony to establish an employment risk for purposes of the mixed-risk analysis. See NRS 616C.150(1). And because Bright failed to do so, we cannot conclude that the appeals officer erred or abused her discretion in finding, based on the record before her, that the mixed-risk analysis did not apply and denying Bright workers’ compensation on this basis. See Baiguen, 134 Nev. at 601, 426 P.3d at 591. As a result, Bright's mixed-risk arguments do not provide a basis for relief.
Based on the reasoning set forth above, we conclude that the appeals officer did not err or abuse her discretion in concluding Bright was not entitled to workers’ compensation benefits. As a result, the district court properly denied Bright's petition for review. Accordingly, we
ORDER the judgment of the district court AFFIRMED.6
Bulla, C. J.
Gibbons, J.
Westbrook, J.
All Citations
Slip Copy, 2025 WL 3686951 (Table)
Footnotes
1
Although the parties disputed whether Bright blacked out or fell asleep during the proceedings before the appeals officer, on appeal, Bright does not challenge the appeals officer's determination that he fell asleep. Thus, any arguments on this point have been forfeited. See Powell v. Liberty Mut. Fire Ins. Co., 127 Nev. 156, 161 n.3, 252 P.3d 668, 672 n.3 (2011) (noting that issues not raised in an appellant's opening brief are deemed forfeited).
2
NRS 616B.612 (authorizing workers’ compensation coverage for an employee's injuries that arose out of and in the course of employment).
3
The Nevada Justice Association (NJA) filed an amicus brief in support of Bright's appeal, arguing that his injuries arose out of and in the course of his employment, satisfying both the street-risk rule and the mixed-risk analysis. The NJA repeats Bright's concerns that, in determining the cause of the accident for workers’ compensation purposes, the appeals officer assigned fault to Bright in contravention of the NIIA, which establishes a no-fault system. See NRS 616A.010; NRS 616A.030.
4
Although Bright attempts to rescind that concession in his reply brief, arguments raised for the first time in a reply brief are generally deemed forfeited, and thus we decline to consider this argument. See City of Las Vegas v. Munson, 141 Nev., Adv. Op. 28, n.3, 574 P.3d 426, 430 n.3 (Ct. App. 2025). While we do not reach this issue given Bright's concession in his opening brief that falling asleep is a personal risk, we nonetheless note that there may be circumstances where falling asleep could be a neutral or even an employment risk.
5
We note that Murphy’s provision that, if an injury is caused by a nonindustrial risk, rather than a risk inherent to the employee's use of the streets, the injury is not considered to have arisen out of the employment and is thus not compensable, 124 Nev. at 286, 183 P.3d at 131, appears to conflict with Nevada's no-fault approach to workers’ compensation cases, see NRS 616A.030 (defining “accident” 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”). Nevertheless, we are constrained by supreme court precedent and thus, we apply the street-risk rule, as articulated in Murphy, in this case. See Eivazi v. Eivazi, 139 Nev. 408, 418 n.7, 537 P.3d 476, 487 n.7 (Ct. App. 2023) (recognizing that this court is bound by, and cannot overrule, Nevada Supreme Court precedent).
6
Insofar as the parties raise arguments that are not specifically addressed in this order, we have considered the same and conclude that they do not present a basis for relief.
End of Document    © 2025 Thomson Reuters. No claim to original U.S. Government Works.
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Ken Kirschenbaum,Esq
Kirschenbaum & Kirschenbaum PC
Attorneys at Law
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