.139 Nev, Ad$:rance,opirii
IN THE COURT OF APPEALS OF THE STATE OF NEVADA
ROSA OLVERA, No. 85122-COA
Appellant,
vs.
WYNN LAS VEGAS; AND SEDGWICK FILE)
CMS,
SEP 2 8 2023
Respondents.
ELIZAB A. NROV
CLERK REP COURT
BY
Ct EF DEPUTY CLERK
Appeal from a district court order denying a petition for judicial
review in a workers' compensation matter. Eighth Judicial District Court,
Clark County; Jessica K. Peterson, Judge.
Affirmed.
GGRM Law Firm and Lisa M. Anderson, Las Vegas,
for Appellant.
Lewis Brisbois Bisgaard & Smith LLP and Daniel L. Schwartz and
Benjamin E. Abbott, Las Vegas,
for Respondents.
BEFORE THE COURT OF APPEALS, GIBBONS, C.J., and BULLA and
WESTBROOK, JJ.
OPINION
By the Court, BULLA, J.:
One purpose of Nevada's workers' compensation statutes is to
provide a vehicle for employees to obtain compensation for work-related
injuries. See Frith v. Harrah S. Shore Corp., 92 Nev. 447, 452-53, 552 P.2d
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337, 340-41 (1976). In furtherance of this purpose, NRS 616C.390 provides
for the reopening of closed workers' compensation claims upon a change of
circumstances resulting from the work-related injury. In this opinion, we
clarify that, when a claimant seeks to reopen a claim that was accepted for
multiple body parts, the claim need be reopened for only those body parts
for which a change of circumstances has been demonstrated. Here,
although the claimant was previously treated for injuries to several parts of
her body, she sought claim reopening due to the worsening condition of her
lumbar spine. Because substantial evidence supports the appeals officer's
decision that the claim should be reopened for treatment to the lumbar
spine only, we affirm.
FACTS AND PROCEDURAL HISTOR Y
Rosa Olvera, an employee of Wynn Las Vegas (the Wynn),
suffered an industrial injury while working at the Wynn in September 2013.
She was opening the door of a walk-in refrigerator when the door handle
broke, causing her to fall backwards and strike her head and back against
a doorframe. Olvera was unconscious for approximately one to two minutes.
She sought medical care the same day and was diagnosed with a head
injury, scalp injury, and cervical, lumbar, and thoracic strains. The insurer,
Sedgwick CMS, accepted Olvera's claim for a cervical strain; thoracic strain;
lunibar strain; contusion of the face, scalp, and neck (except eyes); right hip
strain/sprain; and post-concussion syndrome. After receiving treatment for
several months, Olvera's injuries were pronounced stable and ratable. In
May 2014, Olvera was evaluated by Charles Quaglieri, M.D., for a
permanent partial disability (PPD) rating. Dr. Quaglieri found that Olvera
suffered a six-percent whole-person impairment for her lumbar spine injury
and a three-percent whole-person impairment related to her central
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nervous system, for a nine-percent whole-person impairment overall. In
2015, Sedgwick CMS offered Olvera a nine-percent PPD award, which she
accepted, and her industrial claim was closed.
However, Olvera continued to experience low back pain,
prompting her to seek further medical treatment. An MRI taken in May
2020 showed "severe bilateral neural fora rninal stenosis from the
spondylolisthesis and disk bulging" at 1,5-S1 in the lumbosacral region. In
June 2020, David Dye, D.C., evaluated and diagnosed Olvera with chronic
pain syndrome, lumbar radiculopathy, osseous and subluxation stenosis of
intervertebral foramina of lumbar region, spondyiolisthesis-acute
traumatic of lumbosacral region, spinal instabilities of lumboSacral region,
and idiopathic peripheral neuropathy. Dr. Dye related these new diagnoses
to Olvera's original industrial injury. Further, Dr. Dye determined, within
a reasonable degree of m.edical probability, that Olvera's industrial injuries
related to the lumbar region had worsened since the claim closure in 2015.
Olvera requested that her claim be reopened, but Sedgwick CMS denied her
requests because the medical records she attached to support the reopening
of her claim were illegible and ultimately did not demonstrate that her
medical condition had worsened. Olvera timely appealed to the hearing
officer, who affirmed. Olvera then appealed to the appeals officer.
In September 2021, following a hearing, the appeals officer
entered a decision reversing in part the hearing officer's decision and
ordering that Olvera's clann be reopened for the lumbar spine, only.
Specifically, the appeals officer found that Olvera provided credible medical
evidence, including the records from Dr. Dye and the MRI of her lumbar
spine, supporting Olvera's contention that her lumbar spine had worsened
over time due to her original industrial injury. The appeals officer also
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found, pursuant to NRS 616C.390(1)(a), that Olvera demonstrated a change
in circumstances related to the condition of her lumbar spine when
comparing Dr. Dye's diagnoses with Olvera's past treatment records. While
the appeals officer reopened Olvera's claim for additional treatment to the
lumbar spine, the appeals officer denied Olvera's request to reopen her
claim for other body parts, which, although accepted as part of her initial
claim, did not require further treatment. Subsequently, Olvera filed a
petition for judicial review on the basis that her workers' compensation
claim should have been reopened to cover all accepted body parts related to
her 2013 industrial accident, not only the lumbar spine. The district court
denied Olvera's petition, and this appeal followed.
ANALYSIS
On appeal, Olvera argues that the appeals officer misapplied
NRS 616C.390(1) because she was statutorily entitled to reopen her claim
for treatment to all body parts covered under her original claim, and
therefore, the appeals officer should not have limited the reopening of her
claim to the lumbar spine. Olvera posits that to conclude otherwise results
in her claim not being considered reopened under the statutes. Conversely,
Sedgwick CMS and the Wynn argue that there is no legal or factual basis
for reopening the claim for any other body parts because the medical records
Olvera provided only supported reopening her claim for further treatment
to the lumbar spine.
Standard of review
This court reviews questions of law, including an
administrative officer's construction of statutes, de novo. Holiday Ret. Corp.
v. State, Div. of Indus. Relations, 128 Nev. 150, 153, 274 P.3d 759, 761
(2012). While this court does not defer to an administrative officer's
construction of statutes, "[w]e review an adrninistrative agency's factual
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findings for clear error or an arbitrary abuse of discretion and will only
overturn those findings if they are not supported by substantial evidence."
City of North Las Vegas v. Warburton, 127 Nev. 682, 686, 262 P.3d 715, 718
(2011) (internal quotation marks and citation omitted). "Substantial
evidence exists if a reasonable person could find the evidence adequate to
support the agency's conclusion, and [this court] may not reweigh the
evidence or revisit an appeals officer's credibility determination." Law
Offices of Barry Levinson, P.C. v. Milko, 124 Nev. 355, 362, 184 P.3d 378,
384 (2008).
"When reviewing de novo, [this court] will interpret a statute or
regulation by its plain meaning unless the statute or regulation is
ambiguous, the plain meaning would provide an absurd result, or the
interpretation clearly was not intended." Young v. Nev. Gaming Control
13d., 136 Nev. 584, 586, 473 P.3d 1034, 1036 (2020) (internal quotation
marks and citations omitted); Platte River Ins. Co. v. Jackson, 137 Nev. 773,
778, 500 P.3d 1257, 1262 (2021) ("We strive to the extent possible to
interpret a statute in a matter that avoids unreasonable or absurd results
unintended by the Legislature." (alteration and internal quotation marks
omitted)). Moreover, when interpreting a statute, "[the appellate courts]
consider[ ] the statute's multiple legislative provisions as a whole." Leven
v. Frey, 123 Nev. 399, 405, 168 P.3d 712, 71.6 (2007).
NRS 616C.390(1) does not require reopening a claim for all of the body parts
accepted in the original claim
We first briefly address Olvera's argument that, upon
reopening a closed claim, NRS 616C.390(1) requires the claim to be
reopened for all originally accepted body parts. On this point, her position
is belied by the plain language of the statute, as nowhere does the provision
require a claim to be reopened for coverage of all body parts accepted in the
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original claim where there has been no change in circumstances as to those
body parts. Young, 136 Nev. at 586, 473 P.3d at 1036 (providing that we
interpret statutory provisions to avoid unreasonable or absurd results).
In accordance with NRS 616C.390(1), an insulrer must reopen a
claim more than one year after its closure if:
(a) A change of circumstances warrarits an
increase or rearrangement of compensation during
the life of the claimant;
(b) The primary cause of the change of
circumstances is the injury for which the clanin was
originally made; and
(c)The application is accompanied by the
certificate of a physician or a chiropractic phy'sician
showing a change of circumstances which Would
warrant an increase or rearrangement of
compensation.
In this case, the appeals officer reopened Olvera's claim for further
treatment to the lumbar spine, which as discussed beloW, is the only body
part for which the evidence demonstrated a change lin circumstances
requiring additional compensation. Therefore, we are not persuaded by
Olvera's argument that her claim was not reopened in accordance with the
statute.
Oluera failed to demonstrate by a preponderance of the 'evidence that her
claim should be reopened as to body parts other than the mbar spine
An employee has the burden of proof to demonstrate that a
claim should be reopened by a preponderance of the evid*ice. State Indus.
Ins. Sys. v. Hicks, 100 Nev. 567, 569, 688 P.2d 324, 325 (.984). Reopening
a claim necessitates more than "possibilities and speculiative testimony";
instead, it requires that "[a] testifying physician [] sta.te to a degree of
reasonable medical probability that the condition in question was caused by
the industrial injury." See United Exposition Serv. Co. v. State Indus. Ins.
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Sys., 109 Nev. 421, 424-25, 851 P.2d 423, 425 (1993); seelalso Horne u. State
Indus. Ins. Sys., 113 Nev. 532, 539, 936 P.2d 839, 843 (1997) ("[M]ere
speculation and belief does not rise to the level of +asonable medical
probability of a firm causal connection." (internal quOtation marks and
citation omitted)). Recently, this court recognized that NRS 616C.390
"permits the reopening of a claim and expanding the scope of coverage
where, for example, an injury to a body part manifests after a claim has
been closed but is medically related to the original indust rial accident." See
l
Gilman u. Clark Cty. Sch. Dist., 139 Nev., Adv. Op. 7, 527 P.3d 624, 628 (Ct.
App. 2023).
Here, the appeals officer considered the factoks set forth in NRS
616C.390(1) and made factual findings to support the reopening of Olvera's
claim to provide coverage for further treatment to the lumbar spine.
Specifically, the appeals officer considered Olvera's medical records from
Dr. Dye and the MRI of her lumbar spine and concluded that this evidence
supported a conclusion that a change in circustances occurred
necessitating future treatment to her lumbar spine, thereby warranting the
reopening of her original claim for an increase or tearrangement of
compensation. This conclusion is supported by substantial evidence in the
record. However, the record on appeal is devoid of medic.al records or other
evidence demonstrating a change in circumstances related to the other body
parts that were previously accepted. See Wright v. State, Dep't of Motor
Vehicles, 121 Nev. 122, 125, 110 P.3d 1066, 1068 (2005) (recognizing that
substantial evidence may be inferred from the lack of certain evidence).
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This court will not substitute its judgment for that of the
appeals officer who, after weighing the evidence, determined that Olvera's
claim should be reopened for treatment to the lumbar spine. The appeals
officer also determined that the evidence failed to sulpport that further
treatment was required for the other body parts. See Day v. Washoe Cty.
Sch. Dist., 121 Nev. 387, 389, 116 P.3d 68, 69 (2005).' We conclude that the
appeals officer properly determined that the reopening of Olvera's claim
was warranted only as to the lumbar spine.
CONCLUSION
In this case, Olvera was able to reopen her claim pursuant to
NRS 616C.390(1)(a) for further treatment to her lumbar Spine based on the
medical evidence presented. However, Olvera failed to present evidence to
support treatment of other body parts covered in her initial claim. The
reopening of Olvera's claim for the lumbar spine only is lArthin the statutory
purpose of permitting the reopening of a claim where there has been a
change of circumstances necessitating an increase or Iparrangement of
compensation. Therefore, the appeals officer prop'ierly limited the
'Respondents argue that NRS 616C.390(5) precluded Olvera's claim
from being reopened for body parts other than the lumbar ispine because her
request was made more than one year after the claim closed, and she only
received a PPD award for the lumbar spine and centra nervous system.
However, based on our disposition and because the appeals officer did not
reach this issue, we need not address the applicability of NRS 616C.390(5)
on appeal. See Langman v. Nev. Adm'rs, Inc., 114 Nev. 203, 206-07, 955
P.2d 188, 190 (1998) (recognizing that this court's role in reviewing an
administrative decision is to determine the propriety, of the agency's
decision in light of the evidence presented to the agency). ,
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reopening of the claim to the lumbar spine, and we affirm the district court's
order denying Olvera's petition for judicial review.
J.
Bulla
We concur:
C.J.
J.
Westbrook
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