IN THE SUPREME COURT OF THE STATE OF NEVADA
KIMBERLY KLINE, No. 82608
Appellant,
vs.
CITY OF RENO; AND CANNON FILE
COCHRAN MANAGEMENT SERVICES,
AUG 1 2022
INC., "CCMSI,"
ELIZABE A. BRCANN
Res • ondents. CLER F S EME COURT
BY
DEPUTY RI(
ORDER OF AFFIRMANCE
This is an appeal from a district court order denying a petition
for judicial review in a workers' compensation matter. Second Judicial
District Court, Washoe County; Connie J. Steinheimer, Judge.1
Shortly after being involved in a non-industrial car accident,
appellant Kimberly Kline was injured in a car accident while working for
respondent City of Reno. Kline received treatment for back and neck pain
and was diagnosed with acute lumbar radiculopathy, sprain of the lumbar
spine, and acute pain in the lower back. The City's workers' compensation
administrator, respondent Cannon Cochran Management Services, Inc.
(CCMSI), accepted Kline's workers' compensation claim for a cervical
strain. Kline's initial treating physician, Scott Hall, M.D., determined that
Kline had reached maximum medical improvement (MMI), was stable with
no ratable impairment, and released her to full duty with no restrictions.
Based on this, CCMSI sent Kline a notice of intention to close her workers'
compensation claim. An appeals officer reversed the closure (closure
appeal). Relevant here, the appeals officer in the closure appeal considered
'Pursuant to NRAP 34(f)(1), we have determined that oral argument
is not warranted.
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the medical opinions of Dr. Hall and two other physicians who treated
Kline—Dr. Bryan Hanson, D.C., and Lali Sekhon, M.D. Ultimately, the
appeals officer gave more weight to Dr. Hanson's and Dr. Sekhon's reports,
which opined, respectively, that there was a high probability within a
medical degree of certainty that Kline's injuries were related to the recent
industrial accident and that Kline "stated that she never had these arm
symptoms before these accidents and although she may have had
preexisting spondylosis, the accident probably exacerbated her underlying
stenosis." Based on this, the appeals officer found that Kline was entitled
to additional treatment, which Dr. Sekhon indicated included "a C4-5, C5-6
and C6-7 anterior cervical decompression and instrumentation fusion." The
district court denied respondents' subsequent petition for judicial review,
which the City did not appeal.
While the petition for judicial review was pending, Dr. Sekhon
performed his recommended surgery, after which he determined that Kline
had reached MMI and had a ratable impairment. He thus released her to
full duty. Dr. Russell Anderson then conducted a permanent partial
disability (PPD) evaluation and concluded that Kline has a 25% whole
person impairment (WPI) from the cervical spine and that Kline had
underlying cervical spine issues that pre-dated her industrial injury.
Stating "[i]t is not logical to believe that these findings are related to the
[industrial] car accident that she was involved in 6 months earlier," Dr.
Anderson apportioned 75% of the impairment as non-industrial and 25% as
industrial. Applying the apportionment to Kline's 25% WPI, Dr. Anderson
rated Kline at a 6% WPI as related to the industrial work injury. CCMSI
thus issued a 6% PPD award letter to Kline.
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Kline appealed CCMSI's determination letter, and the appeals
officer ordered a second PPD evaluation. In the second evaluation, Dr.
James Jempsa found a 27% WPI and that apportionment was not necessary.
Due to the discrepancy in apportionment, CCMSI sought another opinion
from Jay Betz, M.D. Dr. Betz ultimately agreed with Dr. Anderson that a
6% WPI rating was appropriate, as Dr. Anderson's "conclusions [were] well
supported by the medical record, known pathologies, AMA guides, and the
Nevada Administrative Code." Dr. Betz also relied on Dr. Hall's earlier
opinion.
CCMSI then offered Kline a 6% PPD award, which the hearing
officer overturned. In respondents' later appeal to the appeals officer, Kline
testified on her own behalf and Dr. Betz testified as an expert for
respondents, reaffirming his conclusion that Kline had a 6% WPI as related
to the industrial injury. Kline offered no expert witness to rebut Dr. Betz's
testimony. The appeals officer ultimately found that CCMSI "properly
offered [Kline] a 6% PPD award following apportionment of the 25% PPD
award as 75% non-industrial and 25% industrial, based on Dr. Anderson's
PPD evaluation and Dr. Betz's records review report." Kline subsequently
petitioned for judicial review, which the district court denied.
As a threshold issue, Kline asserts that recent amendments to
NRS 616C.490 apply to her claim. Those amendments apply only to claims
open on the date of passage and approval, May 31, 2021. See 2021 Nev.
Stat., ch. 245, §§ 11, 12 (S.B. 289). Here, the appeals officer found that
Kline's claim had closed "as of the date of Dr. Jempsa's PPD evaluation on
May 8, 2018," which Kline did not challenge in her petition for judicial
review. Because Kline failed to challenge the claim closure date below, she
waived any such argument regarding a different claim closure date. We
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therefore necessarily apply the same version of NRS 616C.490 to her case
as used by the appeals officer and district court. See Old Aztec Mine, Inc. v.
Brown, 97 Nev. 49, 52, 623 P.2d 981, 983 (1981) (explaining that a party
waives an argument by failing to raise it in the district court). And because
she did not raise her argument that NRS 616C.490 applies retroactively
until her reply brief, we decline to address that argument too. See Phillips
v. Mercer, 94 Nev. 279, 283, 579 P.2d 174, 176 (1978) (holding that we need
not consider issues raised for the first time in a reply brief). Having resolved
these two preliminary issues, we move on to Kline's substantive challenges
to the appeals officer's determination.
"On appeal from a district court order denying a petition for
judicial review, this court reviews an appeals officer's decision in the same
manner that the district court reviews the decision." City of Reno v.
Yturbide, 135 Nev. 113, 115, 440 P.3d 32, 34 (2019). In doing so, "we
evaluate the agency's decision for clear error or an arbitrary and capricious
abuse of discretion." Law Offices of Barry Levinson, P.C. v. Milko, 124 Nev.
355, 362, 184 P.3d 378, 383 (2008). This court is confined to the record and
cannot "reweigh the evidence or revisit an appeals officer's credibility
determination." Associated Risk Mgrnt., Inc. v. Ibanez, 136 Nev. 762, 764,
478 P.3d 372, 374 (2020) (quoting City of Las Vegas v. Lawson, 126 Nev.
567, 571, 245 P.3d 1175, 1178 (2010)) (further internal quotation marks
omitted). Therefore, when evaluating an appeals officer's findings, this
court gives those findings and conclusions deference, and they "will not be
disturbed if they are supported by substantial evidence." Id. (internal
quotation marks omitted). Although we review legal questions de novo, "an
agency's conclusions of law which are closely related to the agency's view of
the facts are entitled to deference and should not be disturbed if they are
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supported by substantial evidence." Jourdan v. SIIS, 109 Nev. 497, 499,
853 P.2d 99, 101 (1993). "Substantial evidence is that quantity and quality
of evidence which a reasonable [person] could accept as adequate to support
a conclusion." Id. (internal quotation marks omitted).
Kline first argues that issue preclusion bars relitigating
whether her injuries were caused by the industrial accident. And that the
appeals officer thus should have found no apportionment was warranted
because there was no prior ratable impairment if the injuries were caused
by the industrial accident. We disagree.
The prior appeals officer's decision addressed the issue of claim
closure and whether Kline proved that she had not reached MMI. That
decision noted that "Dr. Hansen felt there was a high probability within a
medical degree of certainty that the Claimant's injuries were related to the
rear-end collision she had recently sustained," but that left open the
question of whether the work-related collision caused her injuries.
Moreover, the decision did not address the spinal fusion surgery, PPD
evaluations by Dr. Anderson and Dr. Jempsa, or the additional records
reviewed by Dr. Betz, all of which occurred after the previous decision.
Thus, we conclude that issue preclusion does not apply here. See Alcantara
v. Wal-Mart Stores, Inc., 130 Nev. 252, 258, 321 P.3d 912, 916 (2014)
(outlining the elements for issue preclusion); Evans v. Celotex Corp., 238
Cal. Rptr. 259, 262 (Ct. App. 1987) (holding that issue preclusion was never
intended to operate "to prevent a re-examination of the same question
between the same parties where . . . facts have materially changed or new
facts have occurred which may have altered the legal rights or relations of
the litigants"), cited favorably by Alcantara, 130 Nev. at 262-63, 321 P.3d at
919); Restatement (Second) of Judgments § 27 (2022) ("If issues are
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determined but the judgment is not dependent upon the determinations,
relitigation of those issues in a subsequent action between the parties is not
precluded.").
Next, Kline argues that, absent any documentation to establish
the scope and nature of any pre-existing non-industrial impairment in her
cervical spine, apportionment is not allowed. The applicable version of NRS
616C.490(9) (2017) provided that "if there is a previous disability . . . the
percentage of disability for a subsequent injury must be determined by
computing the percentage of the entire disability and deducting therefrom
the percentage of the previous disability as it existed at the time of the
subsequent injury." Where, as here, no rating evaluation of the previous
injury exists, the NAC provides:
4. Except as otherwise provided in subsection
5, . . . if no previous rating evaluation was
performed, the percentage of impairment for the
previous injury or disease and the present
industrial injury or occupational disease must be
recalculated by using the Guides, as adopted by
reference pursuant to NAC 616C.002. The
apportionment must be determined by subtracting
the percentage of impairment established for the
previous injury or disease from the percentage of
impairment established for the present industrial
injury or occupational disease.
5. If precise information is not available, and the
rating physician or chiropractor is unable to
determine an apportionment using the Guides as
set forth in subsection 4, an apportionment may be
allowed if at least 50 percent of the total present
impairment is due to a preexisting or intervening
injury, disease or condition. The rating physician
or chiropractor may base the apportionment upon
X-rays, historical records and diagnoses made by
physicians or chiropractors or records of treatment
which confirm the prior impairment.
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NAC 616C.490(4)-(5) (emphasis added). NAC 616C.490(6), in turn, provides
additional guidance on apportionment where there is a pre-existing
condition.2 Specifically, NAC 616C.490(6) provides:
If there are preexisting conditions, including,
without limitation, degenerative arthritis,
rheumatoid variants, congenital malformations or,
for claims accepted under NRS 616C.180, mental or
behavioral disorders, the apportionment must be
supported by documentation concerning the scope
and the nature of the impairment which existed
before the industrial injury or the onset of disease.
See also NAC 616C.490(7) ("A rating physician or chiropractor shall always
explain the underlying basis of the apportionment as specifically as possible
by citing pertinent data in the health care records or other records."); NAC
2We reject Kline's argument that subsections 4 and 5 "apply to
situations where a rating was done in another state or using another edition
of the AMA Guides" because the plain, unambiguous text of the regulation
also applies where "no previous rating evaluation was performed." NAC
616C.490(4); Pawlik u. Shyang-Fenn Deng, 134 Nev. 83, 85, 412 P.3d 68, 71
(2018) ("When the language of a statute is clear on its face, this court will
not go beyond the statute's plain language." (quoting J.E. Dunn Nw., Inc. v.
Corus Constr. Venture, LLC, 127 Nev. 72, 79, 249 P.3d 501, 505 (2011)));
City of N. Las Vegas v. Warburton, 127 Nev. 682, 687, 262 P.3d 715, 718
(2011) (holding that "rules of statutory construction also apply to
administrative regulations"). Thus, the text specifically contemplates the
scenario present in this case. We further reject Kline's argument that
applying subsections 5 and 6 conflicts with NRS 616C.490 because she does
not cogently articulate how they conflict, and because the regulations are
reasonable in carrying out this provision where, as here, there has been no
previous rating evaluation. See NRS 616C.490(11) ("The Division may
adopt...reasonable regulations to carry out the provisions of this
section."); Edwards v. Emperor's Garden Rest., 122 Nev. 317, 330 n.38, 130
P.3d 1280, 1288 n.38 (2006) (holding that we need not consider arguments
not cogently argued).
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616C.490(8) ("If no documentation exists pursuant to subsection 6 or 7, the
impairment may not be apportioned.").
Here, substantial evidence supports the appeals officer's
apportionment decision and Kline fails to show the decision violated the
relevant statute and rules regarding apportionment. Dr. Betz, whom the
appeals officer deemed credible, see Desert Valley Constr. v. Hurley, 120
Nev. 499, 502, 96 P.3d 739, 741 (2004) (holding that we will not reweigh
witness credibility on appeal in a workers' compensation matter), presented
uncontroverted testimony as to the nature and scope of the pre-existing
impairment, stating that "the nature of the [pre-existing] condition is
multilevel-significant spondylolisthesis or degenerative disc disease" and
that the presence of osteophyte complexes in the MRI would have taken
‘`years or decades" to develop. Dr. Betz also relied on the AMA Guides'
framework for apportionment, discussing each requirement. And he
testified that the present impairment was at least 50 percent due to Kline's
pre-existing impairment, relying on documentation, including x-rays, MRIs,
historical records and diagnoses, in determining that Kline had a prior
impairment. See Ransier v. SIIS, 104 Nev. 742, 744 n.1, 766 P.2d 274, 275
n.1 (1988) (addressing NAC 616.490's predecessor regulation and holding
that "the clause 'which existed before the industrial injury or the onset of
the disease" "refers to the impairment and not the documentation," and thus
the regulation did "not require historical documentation, only
documentation concerning the scope and nature of the impairment, which
can come, as here, from examination at the time of the second injury"
(internal quotation marks omitted)).3 We thus conclude that the appeals
analyzed NAC 616.650, which was repealed and replaced by
3 Ransier
NAC 616C.490, but the language remains the same.
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officer committed no clear error or an arbitrary and capricious abuse of
discretion in determining that Dr. Betz and Dr. Anderson established the
underlying basis for apportionment as required by NAC 616C.490(5)-(7),
that apportionment was warranted, or in determining the ultimate
apportionment figure. We, therefore,
ORDER the judgment of the district court AFFIRMED.4
V
Parraguirre
, C.J.
kkiL6/AD Sr.J.
Silver Gibbons
cc: Hon. Connie J. Steinheimer, District Judge
Jonathan L. Andrews, Settlement Judge
The Law Firm of Herb Santos, Jr.
McDonald Carano LLP/Reno
Washoe District Court Clerk
4TheHonorable Mark Gibbons, Senior Justice, participated in the
decision of this matter under a general order of assignment.
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