Hard Rock Hotel & Casino v. Roehl

 reinstated, and on October 27, respondent failed to appear at either the
posturography testing or her appointment with Dr. Klausner. The doctor
then reviewed her records and released her to full-duty work; he noted
that no further treatment was recommended, no permanent disability
existed, and the claim should be closed. Appellants issued a claim closure
letter the next day. Respondent challenged both the suspension of
benefits and claim closure, and after ordering an independent medical
examination performed by Dr. Ronald Kong, the appeals officer affirmed
the suspension of benefits between October 27, 2010, and July 13, 2011,
when respondent underwent the recommended posturography, and
reversed the suspension of benefits on other dates. The appeals officer
also reversed claim closure to the extent that Dr. Kong ordered three
months of psychological support and a permanent partial disability
evaluation. The district court denied appellants' petition for judicial
review, and they appealed.
In reviewing the appeals officer's decision, we apply the same
standard as the district court. See Law Offices of Barry Levinson v. Milko,
124 Nev. 355, 362, 184 P.3d 378, 383 (2008) (explaining that this court
reviews an agency decision for clear error or an arbitrary and capricious
abuse of discretion). While purely legal questions are reviewed de novo,
the appeals officer's fact-based conclusions of law are entitled to deference
when supported by substantial evidence. Id. at 362, 184 P.3d at 383-84.
Regarding the reversal of claim closure, the appeals officer's
decision is entitled to deference. Appellants argue that the appeals officer
should have relied on Dr. Klausner's October 27, 2010, report
recommending claim closure and Dr. Kong's January 28 and August 1,
2012, reports indicating that respondent did not need any further
treatment for her industrial injuries. But the appeals officer expressly
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 discounted Dr. Klausner's report because he had not examined respondent
and appeared to base his decision on her noncooperation. Elizondo v.
Hood Mach., Inc., 129 Nev., Adv. Op. 84, 312 P.3d 479, 482 (2013)
(explaining that this court does not reweigh evidence or disturb the
appeals officer's credibility determinations). Moreover, earlier that month,
Dr. Klausner indicated that respondent might have industrial injury-
related vestibular issues and ordered a posturography.
Further, Dr. Kong stated that respondent suffered from post-
concussion syndrome but her "pervasive pathology" was nonindustrial,
preexisting depression. Accordingly, he opined that she was at maximum
medical improvement and did not recommend any further treatment,
except for three months of psychological support. The appeals officer did
not abuse his discretion in interpreting Dr. Kong's support
recommendation as related to respondent's unresolved post-concussion
syndrome, especially in light of the recommendations from Dr. Karen
Lopez and Dr. David Ginsburg concerning respondent's post-concussion
syndrome. See NRS 616C.360(4) (appeals officer may consider the opinion
of an examining physician). Finally, Dr. Kong also indicated that
respondent should be evaluated for permanent partial disability before
claim closure, which had not been recommended before or included in
appellants' claim closure letter. Accordingly, the appeals officer did not
abuse his discretion in reversing claim closure for the purposes of
providing the recommended three months of support and a permanent
partial disability evaluation.
With respect to reinstating benefits, respondent completed the
required testing on July 13, 2011. Therefore, benefits were properly
reinstated as of that date. NRS 616C.140(5) (insurer may suspend
benefits until examination has occurred). Further, respondent was
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 restricted from returning to full-duty work as a shuttle driver by her
physicians, and her employer did not offer her any work within her
limitations. The appeals officer correctly found that any delays in the
resolution of the case were not caused by respondent. See NRS
616C.360(3) (appeals officer may order independent medical examination).
Therefore, the appeals officer's decision regarding the suspension and
reinstatement of benefits was based on substantial evidence. NRS
616C.245 (governing accident benefits); NRS 616C.475 (governing
temporary total disability).
As the appeals officer's decision was based on substantial
evidence, it is entitled to deference. Accordingly, the district court
properly denied appellants' petition for judicial review, and we
ORDER the judgment of the district court AFFIRMED.

Parraguirre

Douglas

CC: Hon. Kenneth C. Cory, District Judge
Janet Trost, Settlement Judge
Lewis Brisbois Bisgaard & Smith, LLP/Las Vegas
Nevada Attorney for Injured Workers/Carson City
Nevada Attorney for Injured Workers/Las Vegas
Eighth District Court Clerk

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