As a result, reopening was denied. Appellant's petition for judicial review
was summarily denied, and appellant appealed.
Because appellant was not off work and did not receive
permanent partial disability benefits with regard to her industrial injury,
and because she sought reopening within one year of claim closure, her
claim must be reopened if "[a] change of circumstances warrants an
increase or rearrangement of compensation," the change in circumstances
was primarily caused by the industrial injury, and a physician's certificate
so states. NRS 616C.390(1), (5) (2005). Accordingly, the appeals officer
erred in basing her decision on appellant's failure to demonstrate an
objective change in her industrial injury, which is the reopening standard
in other circumstances. See NRS 616C.390(4) (providing that, except
when subsection 5 is met, claimants seeking reopening within one year of
claim closure must show "an objective change in the medical condition"
and prove by clear and convincing evidence that the primary cause of the
change is the industrial injury); Elizondo v. Hood Mach., Inc., 129 Nev.,
Adv. Op. 84, 312 P.3d 479, 482 (2013) (stating that, while this court
reviews an appeals officer's factual findings for substantial evidence, a de
novo standard is applied to the appeals officer's legal question
determinations). Thus, all appellant needed to show, by a preponderance
of the evidence, see NRS 616C.150(1), was a change warranting additional
compensation, primarily caused by her industrial injury.
With regard to changed circumstances, on June 24, 2010, Dr.
Jaswinder Grover wrote a letter stating that, within a reasonable degree
of medical probability, appellant's 2010 lumbar disc herniation condition
was causally related to her 2009 industrial injury, the symptoms of which
had progressed to the point where surgery, along with follow-up care and
further attention, were required. Further, Dr. David Garber, who
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performed appellant's independent medical exam on May 11, 2012, also
acknowledged that the lumbar surgery was adequate treatment of
appellant's industrial injury. While Dr. Garber indicated no further
surgery was necessary, he did not appear to address whether other types
of treatment might be needed.
Neither of these doctors was discredited by the appeals officer,
and none of the evidence suggests that appellant's current lumbar
condition stems from a nonindustrial cause. Thus, although magnetic
resonance imaging showing that appellant suffered a disc herniation
before her claim was closed supports the appeals officer's finding that no
objective physical change was shown, there nevertheless exists evidence
that would support a finding of changed circumstances warranting an
increase or rearrangement of compensation, including, possibly, post-
surgical care and evaluation for partial disability benefits. See, e.g., City
of Scottsdale v. Indus. Comm'n, 764 P.2d 335 (Ariz. Ct. App. 1988)
(reopening a workers' compensation claim when the medical
recommendation for the claimant's industrial back injury changed from
conservative treatment to surgery). Accordingly, we reverse the portion of
the district court's order upholding the appeals officer's decision to deny
reopening and we remand this matter to the district court with
instructions to in turn remand it to the appeals officer. The appeals officer
on remand must analyze appellant's reopening request under the correct
legal "changed circumstances" standard
The appeals officer also concluded that appellant failed to
demonstrate that the lumbar surgery was properly performed on an
emergency basis. As there is no mention in any of the surgical reports
that it was undertaken on an emergency basis and no reasons offered as to
why it was impracticable to formally seek reopening and authorization
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prior to the surgery, the appeals officer's decision on this issue is
supported by substantial evidence. NRS 616C.390(8) ("An increase or
rearrangement of compensation is not effective before an application for
reopening a claim is made unless good cause is shown. The insurer shall,
upon good cause shown, allow the cost of emergency treatment the
necessity for which has been certified by a physician or a chiropractor.");
see also NAC 616C.126 and 616C.129 (outlining, respectively, the
requirements for obtaining emergency treatment and seeking prior
authorization). Accordingly, the district court's order, insofar as it upheld
the appeals officer's decision that respondent is not liable for the costs of
the February 2010 surgery, is affirmed. We thus
ORDER the judgment of the district court AFFIRMED IN
PART AND REVERSED IN PART AND REMAND this matter to the
district court for proceedings consistent with this order.
,
Parraguirre
Douglas Cherry
Chu.
cc: Hon. Kenneth C. Cory, District Judge
Richard A. Harris, Settlement Judge
Benson, Bertoldo, Baker & Carter, Chtd.
Lewis Brisbois Bisgaard & Smith, LLP/Las Vegas
Eighth District Court Clerk
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