Mgm Mirage-City Center v. Dorough ( 2013 )

 herniated disc in March 2008. 1 In April 2008, MGM Mirage's insurer,
appellant Chartis Insurance, accepted respondent's workers' compensation
claim, and in so doing, it categorized respondent's injury as a "lumbar
strain." 2
After his claim for a lumbar strain had been accepted,
respondent requested temporary total disability (TTD) benefits from
Chartis. Respondent submitted a physician's progress report completed by
his own neurosurgeon that certified respondent as TTD from the date of
his initial January 2008 examination. Chartis denied respondent's
request for TTD benefits, as did a hearing officer.
Respondent then appealed the denial to an appeals officer.
Before the appeals officer, appellants argued that respondent's herniated
disc was not a compensable injury because it was a preexisting condition
that was not aggravated by respondent's November 2007 fall. The appeals
officer disagreed and awarded TTD benefits to respondent, as well as
medical benefits. Appellants then filed a petition for judicial review,
which the district court denied. This appeal followed.
"This court, like the district court, reviews an appeals officer's
decision for clear error or abuse of discretion." Dickinson v. Am. Med.
Response, 124 Nev. 460, 465, 186 P.3d 878, 882 (2008); see also NRS
233B.135(3) (setting forth the standard for judicial review of an agency's
decision). Although we review issues of law de novo, "the appeals officer's
'Respondent underwent a follow-up surgery roughly one year later.
2 Wenote that AIG, and not appellant Chartis, was actually the
insurer responsible for the initial processing of respondent's claim. We
refer to Chartis in this disposition for the sake of clarity.
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fact-based legal conclusions are entitled to deference and will not be
disturbed if they are supported by substantial evidence. Substantial
evidence is evidence that a reasonable person could accept as adequately
supporting a conclusion." Dickinson, 124 Nev. at 465-66, 186 P.3d at 882(footnotes omitted). Moreover, our review is limited to the record before
the appeals officer. Id. at 466, 186 P.3d at 882; see NRS 233B.135(1)(b).
Substantial evidence supports the appeals officer's finding that
respondent's fall aggravated his preexisting condition
Under NRS 616C.175, if an employee sustains a work-related
injury that "aggravates, precipitates or accelerates" a nonwork-related
preexisting condition, the employee is entitled to compensation "unless the
insurer can prove by a preponderance of the evidence that the subsequent
injury is not a substantial contributing cause of the resulting condition."
NRS 616C.175(1). Appellants argued before the appeals officer that there
was no evidence to support respondent's contention that his fall
aggravated, precipitated, or accelerated his preexisting condition. Rather,
appellants contended that the pain respondent experienced following his
fall was merely a recurrence of the pain associated with his already-
herniated disc. The appeals officer disagreed and awarded TTD benefits
to respondent.
On appeal, appellants contend that it was clearly erroneous
for the appeals officer to find that respondent's fall aggravated his
herniated disc. We disagree, as substantial evidence supports the appeals
officer's finding. First, respondent testified that immediately before his
fall, he was able to discharge his occupational duties, whereas
immediately after his fall and in the ensuing days, he struggled to stand
under his own power. This is the epitome of an "aggravation." See Grover
C. Dils Med. Ctr. v. Menditto, 121 Nev. 278, 286-87, 112 P.3d 1093, 1099
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(2005) (indicating that an "aggravation" is "the result of a specific,
intervening work-related trauma," whereas a "recurrence" is when
" symptoms of an original injury persist and when no specific incident can
independently explain the worsened condition"). Moreover, the physician
who treated respondent after his fall referred him to a neurosurgeon,
which is something that his pre-fall treating physicians never did.
Finally, the doctor who conducted an independent review of respondent's
medical records expressly opined that respondent's surgeries were "done
as a direct result of the industrial accident."
Thus, substantial evidence supports the appeals officer's
finding that respondent's fall aggravated his herniated disc. NRS
616C.175(1); Grover C. Dils Med. Ctr., 121 Nev. at 286-87, 112 P.3d at
1099. As this was the only meaningful argument that appellants put forth
before the appeals officer to support the denial of TTD benefits, the officer
did not clearly err in awarding these benefits. 3 Dickinson, 124 Nev. at
465-66, 186 P.3d at 882; NRS 233B.135(1)(b).
3Appellants argued alternatively that TTD benefits were
unwarranted because respondent moved out of state shortly after his fall,
which, according to appellants, prevented them from offering respondent
modified light-duty employment. See NRS 616C.475(5)(b) (relieving an
employer of the obligation to pay TTD benefits if the employer offers the
employee light-duty employment that complies with restrictions imposed
by the employee's physician). Appellants presented no evidence to the
appeals officer to suggest that they had a viable light-duty employment
offer for respondent and were simply unable to communicate this offer to
respondent or his attorney. Accordingly, the appeals officer did not clearly
err in rejecting this argument.
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Medical benefits were properly awarded once the appeals officer determined
that respondent's herniated disc was a compensable injury
Appellants contend that the appeals officer improperly
awarded medical benefits for the treatment associated with respondent's
herniated disc because appellants initially accepted respondent's claim for
only a "lumbar strain" and respondent did not directly challenge the scope
of his claim. We disagree. Because appellants' primary argument before
the appeals officer was that respondent's herniated disc was not
aggravated by his fall, the issue of whether his herniated disc was a
compensable injury was squarely before the appeals officer. 4 See NRS
616C.360(2) (indicating that an appeals officer must hear any matter
raised before him or her on its merits). Thus, once the appeals officer
determined that the herniated disc was a compensable injury, medical
benefits were clearly part of the "compensation" to which respondent was
entitled. See NRS 616A.090 (defining "compensation" to include "accident
benefits"); NRS 616A.035(1) (defining "accident benefits" as "medical,
surgical, hospital or other treatments").
In sum, the award of TTD benefits was not clearly erroneous
because substantial evidence supported the appeals officer's finding that
respondent's fall aggravated his herniated disc. Dickinson, 124 Nev. at
465-66, 186 P.3d at 882; NRS 233B.135(1)(b). Additionally, the officer
properly awarded medical benefits as part of the compensation to which
4We note that the appeals officer's May 2009 interim order expressly
stated as much: "[T]here remains an underlying medical issue in this
appeal as to whether the claim includes the disc pathology and subsequent
surgery or whether the claim is limited to a [lumbar] strain only with all
other conditions denied."
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respondent was entitled. NRS 616A.090; NRS 616A.035. Accordingly, we
affirm the district court's denial of appellants' petition for judicial review. 5
It is so ORDERED.
cc: Chief Judge, The Eighth Judicial District Court
Hon. Jack B. Ames, Senior Judge
Janet Trost, Settlement Judge
Lewis Brisbois Bisgaard & Smith, LLP/Las Vegas
Michael Paul Wood
Eighth District Court Clerk
5Any concerns about respondent's TTD certification from his
neurosurgeon that were not properly advanced as arguments to the
appeals officer were not considered on appeal. See City of Las Vegas v.
Lawson, 126 Nev. , n.2, 245 P.3d 1175, 1179 n.2 (2010) (indicating
that a party is precluded from raising an argument on appeal that was not
raised before the appeals officer); Edwards v. Emperor's Garden Rest., 122
Nev. 317, 330 n.38, 130 P.3d 1280, 1288 n.38 (2006) (noting that this court
need not consider an issue when a party fails to provide cogent argument
supported by salient authority).
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