Douglas Co. v. Richardson ( 2014 )

 increasing difficulty completing her job requirements and made separate
requests to have her claim reevaluated for both her neck and shoulder,
which the insurer denied. When Richardson administratively appealed,
the appeals officer determined that the claim should be reopened for both
the neck and shoulder conditions. Appellants filed a petition for judicial
review, which the district court denied, and this appeal followed.
On appeal, appellants argue that Richardson is trying to
impermissibly relitigate the scope of her claim to include degenerative and
chronic neck conditions and that the medical evidence does not establish a
change in circumstances warranting reopening for her shoulder.
Richardson argues that substantial evidence supports the appeals officer's
decision and that the decision was free from any errors of law.
For Richardson to reopen her claim, she must show, by
providing a physician's certificate, that there has been a change of
circumstances warranting an increase or rearrangement of compensation,
and that the primary cause of the change in circumstances is the original
industrial injury. NRS 616C.390(1). The scope of Richardson's original
claim cannot be expanded upon reopening. See Day v. Washoe Cnty. Sch.
Dist., 121 Nev. 387, 391, 116 P.3d 68, 70 (2005) (explaining that revisiting
the original decision of what conditions were industrially related is
improper when evaluating a reopening request). First, regarding
Richardson's neck injury, the scope of the claim was ultimately resolved by
Dr. Betz's PPD evaluation, not the insurer's claim acceptance letter. See
NRS 616C.495(2). That PPD evaluation described Richardson's neck
condition as including the degenerative disc disease and the chronic
herniated disc and did not find that these preexisting conditions should be
apportioned for and not compensated. Both Dr. James Rappaport's
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independent medical evaluation and Dr. Jay Halki's evaluation concluded
that Richardson's current neck condition was directly related to the
industrial injury and had worsened. Thus, substantial evidence supports
the appeals officer's determination that the original claim included the
degenerative and chronic herniated disc conditions and that these
conditions had worsened since claim closure. See Vredenburg v. Sedgwick
CMS, 124 Nev. 553, 557 & n.4, 188 P.3d 1084, 1087 & n.4 (2008) (noting
that the appeals officer's decision will not be disturbed if supported by
substantial evidence); see also Nellis Motors v. State, Dep't of Motor
Vehicles, 124 Nev. 1263, 1269-70, 197 P.3d 1061, 1066 (2008) (explaining
that this court will not reweigh the evidence, reassess witness credibility,
or substitute our judgment for that of the appeals officer on questions of
fact). Accordingly, we find no abuse of discretion or error of law in the
appeals officer's decision to reopen the claim as to Richardson's neck
injury.
With regard to Richardson's shoulder injury, however,
although Richardson's doctors agreed that she should no longer
participate in the defensive tactics training required for her job, there are
no medical opinions explaining what changed in Richardson's shoulder
condition or opining that any changes were caused by the original
industrial injury. While Dr. Rappaport diagnosed subacromial bursitis
and noted that bursitis could be caused by multiple impacts from a
shotgun, there is no evidence establishing a causal connection to the
industrial injury by a degree of reasonable medical probability. See
United Exposition Serv. Co. v. State Indus, Ins. Sys., 109 Nev. 421, 424,
851 P.2d 423, 425 (1993) (explaining that an "award of compensation
cannot be based solely upon possibilities and speculative testimony").
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Therefore, we conclude that substantial evidence does not support the
appeals officer's determination that Richardson had met the requirements
for claim reopening as to her shoulder condition and that the appeals
officer abused her discretion in determining that Richardson's claim be
reopened for the shoulder injury. 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); see
also Vredenburg, 124 Nev. at 557, 188 P.3d at 1087.
Accordingly, we affirm in part and reverse in part the district
court's order denying judicial review, and we remand this matter to the
district court with instructions to remand the case to the appeals officer
for the purpose of denying the claim reopening on Richardson's shoulder
injury.
It is so ORDERED.'
'To the extent that appellants' arguments have not been expressly
addressed in this order, we conclude that those arguments lack merit.
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cc: Hon. Michael P. Gibbons, District Judge
Lansford W. Levitt, Settlement Judge
Thorndal Armstrong Delk Balkenbush & Eisinger/Reno
Nevada Attorney for Injured Workers/Carson City
Douglas County Clerk
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