Langman v. Nevada Administrators, Inc.

955 P.2d 188, 114 Nev. 203, 1998 Nev. LEXIS 19
CourtNevada Supreme Court
DecidedFebruary 26, 1998
Docket28241
StatusPublished
Cited by13 cases

This text of 955 P.2d 188 (Langman v. Nevada Administrators, Inc.) is published on Counsel Stack Legal Research, covering Nevada Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Langman v. Nevada Administrators, Inc., 955 P.2d 188, 114 Nev. 203, 1998 Nev. LEXIS 19 (Neb. 1998).

Opinions

OPINION

Per Curiam:

FACTS

On May 13, 1988, appellant injured his lower back in the [205]*205course and scope of his employment at the Horseshoe Hotel and Casino (“Horseshoe”). He underwent surgery for posterior lumbar interbody fusion, total disc replacement, and autogeneous graft on December 21, 1989.

Appellant’s claim for workers’ compensation was accepted, and appellant was referred for a permanent partial disability (“PPD”) rating on March 7, 1990. Following an examination, appellant received a 13.5% PPD rating for loss of range of motion and significant disc disease. The examining physician did not note any indication that the lumbar fusion or other parts of the 1989 surgery had been unsuccessful. On April 16, 1990, appellant elected to receive a lump sum award of $23,238.87 based on his 13.5% PPD rating.

On July 14, 1994, appellant was working around his swimming pool when the pool filter exploded, striking appellant in the chest. Appellant was sent flying ten to fifteen feet through the air and landed on his back. He complained of pain in his lumbar spine, radiating down his left leg, and underwent a second surgery for an instrumented fusion and an iliac crest bone graft on August 8,

1994. Appellant’s treating physician, Dr. Frances D’Ambrosio, concluded that appellant’s May 13, 1988 industrial injury was the primary cause of the subsequent injury because his back had not properly fused after the first surgery.

On October 31, 1994, based on Dr. D’Ambrosio’s diagnosis, appellant requested the reopening of his claim. The third party administrator for the Horseshoe reopened the claim for medical investigation only, and referred appellant to Dr. David Oliveri for an independent medical examination on December 22, 1994. In his report, Dr. Oliveri made no reference to the success or failure of the 1989 lumbar fusion. Instead, Dr. Oliveri found that the July 14, 1994 injury “represents a new injury with a new disk herniation . . . that was not present at the time of the original MRI scan in 1989.” Dr. Oliveri stated that “[a]ny increase in his level of disability at this point is not industrially related and is, in my opinion, primarily related to the non-work-related injury of 7/ 14/94.” Accordingly, Dr. Oliveri concluded that “[a]ll treatment rendered for [appellant’s] current complaints that have resulted since July of 1994 should be rendered on a nonindustrial basis.”

On December 2, 1994, the third party administrator denied the reopening of appellant’s claim; the denial was affirmed by the hearing officer on January 12, 1995, following a hearing on the merits. The case came before the appeals officer on April 17, 1995, and the evidence presented to the appeals officer included Drs. D’Ambrosio’s and Oliveri’s reports and appellant’s medical [206]*206records. The evidence also included a report from Dr. James Thomas, Jr., who conducted a medical review of appellant’s records on February 21, 1995, without examining appellant. In his report, Dr. Thomas stated that in his opinion, appellant’s 1989 lumbar fusion never completely healed, leaving the spinal segment vulnerable to the second injury in 1994. Accordingly, Dr. Thomas concluded that there was “a definite relationship” between appellant’s 1989 surgery and his need for surgery in 1994.

In a decision filed May 19, 1995, the appeals officer affirmed the denial of appellant’s request to reopen his claim. The appeals officer found that “[t]he explosion of the pool filter on July 14, 1994, and not the industrial accident on May 13, 1988, was the primary cause of Claimant’s new injury.” The appeals officer further found that in light of the mechanics of the July 14, 1994, accident, the pre-closure medical reports, and Dr. Oliveri’s medical investigation, “Dr. D’Ambrosio’s contention that the failed fusion and re-herniation at L5-S1 was primarily related to the industrial accident is not credible.” Accordingly, the appeals officer concluded that appellant had “failed to meet his burden of proof that his physical condition, subsequent to the July 14, 1994, non-industrial accident, primarily resulted from the industrial injury of 1988,” and that appellant was thus not entitled to reopen his claim pursuant to NRS 616.545.

In an order filed January 9, 1996, the district court denied appellant’s petition for judicial review and affirmed the appeals officer’s decision. The district court concluded that the decision was supported by substantial evidence in the record and not affected by errors of law. This appeal followed.

DISCUSSION

On appeal, appellant contends that the appeals officer erred by applying the wrong statutory standard with respect to reopening his claim. Specifically, appellant maintains that the appeals officer should have applied the statutory standard in effect at the time his first industrial injury arose, not the statutory standard in effect when he sought to reopen his claim.

Standard of review

As a general rule, this court’s role in reviewing an administrative decision is identical to that of the district court: to review the evidence presented to the agency in order to determine whether the agency’s decision was arbitrary or capricious and was thus an [207]*207abuse of the agency’s discretion. Titanium Metals Corp. v. Clark County, 99 Nev. 397, 399, 663 P.2d 355, 357 (1983); NRS 233B.135. Because this case concerns the construction of a statute, however, independent review is necessary. “The construction of a statute is a question of law, and independent appellate review of an administrative ruling, rather than a more deferential standard of review, is appropriate.” Maxwell v. SHS, 109 Nev. 327, 329, 849 P.2d 267, 269 (1993) (citing Nyberg v. Nev. Indus. Comm’n, 100 Nev. 322, 324, 683 P.2d 3, 4 (1984); American Int’l Vacations v. MacBride, 99 Nev. 324, 326, 661 P.2d 1301, 1302 (1983)).

Whether the applicable burden of proof for reopening a claim under former NRS 616.545 (now NRS 616C. 390) is determined by the date of the original industrial injury or by the date of the request to reopen the claim

Appellant contends that the district court erred in affirming the appeals officer’s decision to deny the reopening of appellant’s claim because the appeals officer’s decision is affected by an error of law. Specifically, appellant contends that the appeals officer applied the burden of proof for reopening a claim under the post-1993 version of NRS 616.545

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Olvera v. Wynn Las Vegas
Nevada Supreme Court, 2023
Olvera v. Wynn Las Vegas
537 P.3d 138 (Court of Appeals of Nevada, 2023)
State, Emp'T Sec. Div. v. Eppinger
Nevada Supreme Court, 2022
Morgan v. Mgm grand/mgm Resorts Int'l.
Nevada Supreme Court, 2014
Harrah's v. State, Dep't of Taxation
2014 NV 15 (Nevada Supreme Court, 2014)
Wynn Las Vegas, LLC v. Baldonado
311 P.3d 1179 (Nevada Supreme Court, 2013)
Bally Technologies v. Sloan
Nevada Supreme Court, 2013
Williams v. United Parcel Services
302 P.3d 1144 (Nevada Supreme Court, 2013)
Law Offices of Barry Levinson, P.C. v. Milko
184 P.3d 378 (Nevada Supreme Court, 2008)
McClanahan v. Raley's, Inc.
34 P.3d 573 (Nevada Supreme Court, 2001)
Langman v. Nevada Administrators, Inc.
955 P.2d 188 (Nevada Supreme Court, 1998)

Cite This Page — Counsel Stack

Bluebook (online)
955 P.2d 188, 114 Nev. 203, 1998 Nev. LEXIS 19, Counsel Stack Legal Research, https://law.counselstack.com/opinion/langman-v-nevada-administrators-inc-nev-1998.