Bally Technologies v. Sloan ( 2013 )

 officer affirmed that decision, determining that Sloan had failed to
establish that his condition arose out of and in the course of his
employment. On administrative appeal from that determination, the
appeals officer found that there was no medical opinion addressing any
causal relationship between the ultimate diagnosis of a paraspinal abscess
and the back injury that Sloan had sustained at work. The appeals officer
thus determined that a medical question existed as to the medical
probability that a back injury could result in the paraspinal abscess and
directed the parties to provide additional medical reporting. Sloan was
subsequently evaluated by two physicians. Dr. Steven Parker opined that
the muscle strain in Sloan's back resulted in a localized hematoma, which
provided "fertile soil" that became infected and developed into an abscess.
Dr. Charles Krasner provided his opinion that Sloan's urinary tract
infection had developed before his back strain and that, while a back
strain in itself should not result in an epidural abscess, the injury had
increased the risk of spinal infection and the urinary tract infection led to
the development of the abscess.
The appeals officer entered a decision and order reversing the
hearing officer and ordering the acceptance of the claim, concluding that
the medical reporting was credible and that the nonindustrial infection
"accelerated" to the back "as a result of the hematoma" caused by the back
injury at work. Bally Technologies filed a petition for judicial review,
which the district court denied. This appeal followed.
DISCUSSION
This court reviews an appeals officer's decision in a workers'
compensation matter for clear error or abuse of discretion. NRS
233B.135(3); Vredenburg v. Sedgwick CMS, 124 Nev. 553, 557, 188 P.3d
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1084, 1087 (2008). Judicial review is confined to the record before the
appeals officer, and on issues of fact and fact-based conclusions of law, the
appeals officer's decision will not be disturbed if it is supported by
substantial evidence. Vredenburg, 124 Nev. at 557, 188 P.3d at 1087-88;
Grover C. Dils Med. Ctr. v. Menditto, 121 Nev. 278, 283, 112 P.3d 1093,
1097 (2005). An appeals officer's determinations on pure issues of law,
however, are reviewed de novo. Roberts v. State Indus. Ins. Sys., 114 Nev.
364, 367, 956 P.2d 790, 792 (1998).
When an employee suffers an industrial injury that
aggravates, precipitates, or accelerates a preexisting nonindustrial
condition, the compensability of that employee's workers' compensation
claim depends on the insurer's ability to prove that the work injury is not
a substantial contributing cause of the employee's condition. See NRS
616C.150; NRS 616C.175(1); see also Ross v. Reno Hilton, 113 Nev. 228,
229, 931 P.2d 1366, 1367 (1997). Here, the appeals officer determined
that Sloan's urinary tract infection was a preexisting condition that was
accelerated by the back injury Sloan sustained while at work. This
determination is supported by substantial evidence in the record,
particularly by the reports of Drs. Parker and Krasner. See Vredenburg,
124 Nev. at 557 n.4, 188 P.3d at 1087 n.4 ("Substantial evidence is
evidence that a reasonable person could accept as adequately supporting a
conclusion."); Langman v. Nev. Adm'rs, Inc., 114 Nev. 203, 209-10, 955
P.2d 188, 192 (1998) (providing that this court will not substitute its
judgment regarding the weight or credibility given to evidence).
Appellants argue on appeal that there is no evidence that the paraspinal
abscess and resulting surgery was a foreseeable consequence of the back
strain injury or that the back strain was the "direct cause" of the abscess.
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But they do not cogently argue that the back strain was not a substantial
contributing cause of the paraspinal abscess, and it is not clear how the
record would support such an argument. See NRS 616C.175(1) (explaining
that when an industrial injury aggravates, precipitates, or accelerates a
preexisting nonindustrial condition, the injury is compensable "unless the
insurer can prove by a preponderance of the evidence that the [industrial]
injury is not a substantial contributing cause of the resulting condition").
Thus, we conclude that the appeals officer did not abuse her discretion or
commit an error of law when she determined that Sloan's claim should be
accepted.
Appellants further argue that the appeals officer improperly
shifted the burden to them when she determined a medical question
existed and directed the parties to provide additional medical reporting.
But substantial evidence in the record supports the appeals officer's
determination that Sloan suffered an injury to his back while at work, and
that he later had surgery to remove a paraspinal abscess that significantly
improved his back condition. Based on these factual findings, it was not a
clear error or an abuse of discretion for the appeals officer to conclude that
a medical question arose as to whether a causal relationship existed
between the back injury and the paraspinal abscess. See NRS
233B.135(3); Maxwell v. State Indus. Ins. Sys., 109 Nev. 327, 331, 849 P.2d
267, 271 (1993) (explaining that this court may not substitute its
judgment for that of the appeals officer as to the weight of the evidence on
questions of fact). As the appeals officer has authority to order an
independent medical examination, paid for by the insurer, if necessary to
resolve a medical question regarding the injured employee's condition in a
contested claim, see NRS 616C.330(3), we conclude that the appeals officer
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had authority to direct the parties to provide additional medical evidence
so as to resolve the medical question regarding Sloan's condition, and
thus, did not abuse her discretion. Accordingly, we affirm the district
court's order denying judicial review.
It is so ORDERED.
/-
Hardesty
Cherry
cc: Second Judicial District Court Dept. 10
Nicholas F. Frey, Settlement Judge
Thorndal Armstrong Delk Balkenbush & Eisinger/Reno
Arnold Brock, Jr.
Washoe District Court Clerk
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