Dickinson v. American Medical Response

• Decision Date: 03 July 2008
• Docket Number: No. 48021.,48021.
• Citation: 186 P.3d 878
• Parties: Mary Beth DICKINSON, Appellant, v. AMERICAN MEDICAL RESPONSE, Respondent.
• Court: Nevada Supreme Court

186 P.3d 878

Mary Beth DICKINSON, Appellant, v. AMERICAN MEDICAL RESPONSE, Respondent.

No. 48021.

Supreme Court of Nevada.

July 3, 2008.

Clark & Richards and H. Douglas Clark, Las Vegas, for Appellant.

Lewis Brisbois Bisgaard & Smith, LLP, and J. Michael McGroarty, Las Vegas, for Respondent.

BEFORE HARDESTY, PARRAGUIRRE and DOUGLAS, JJ.

OPINION

PER CURIAM:

In this appeal, we address the use of equitable estoppel and waiver principles in administrative workers' compensation proceedings, as well as the appeals officer's duty to make factual findings in rendering a determination. We conclude that equitable estoppel and waiver principles may be applied in workers' compensation proceedings, and therefore, since those principles generally require a factual determination, the appeals officer has authority to and must consider them in the first instance. Further, we reiterate that, in resolving aspects of a contested case, including equitable estoppel or waiver, the appeals officer must support the determination with factual findings.

Fundamentally, this appeal challenges an appeals officer's decision that denied a workers' compensation claimant permanent partial disability (PPD) benefits for a cervical spine condition. The appeals officer's decision was based on two conclusions: first, that the claimant's failure to administratively challenge the exclusion of her neck condition from her accepted workers' compensation claim precluded payment for that condition, and second, that the claimant failed to demonstrate that her neck condition was caused by her industrial injury.

In considering the claimant's argument that her failure to administratively appeal should not preclude PPD benefits for her cervical spine condition because she continued to receive medical benefits for that condition, we conclude that the doctrines of equitable estoppel or waiver apply in workers' compensation proceedings, and thus, the appeals officer must determine whether those doctrines apply here. Further, with respect to the claimant's contention that substantial evidence does not support the appeals officer's refusal to recognize her cervical spine condition as industrial, we are unable to adequately review that issue because the appeals officer failed to provide the requisite factual findings supporting the determination.

Therefore, we reverse the district court's order denying judicial review of the appeals officer's decision and remand this matter so that the appeals officer may address and revisit these issues. Finally, we point out that the appeals officer's award of any PPD benefits on remand must accord with NRS 616C.490(2)'s rating physician selection requirements.

FACTS AND PROCEDURAL HISTORY

Appellant Mary Beth Dickinson suffered from a nonindustrial right neck and shoulder condition, which included cervical spine and nerve problems, since 1997. In late August 1998, Dickinson sustained an industrial injury to her right upper extremity and filed a claim for workers' compensation based upon a physician's diagnoses of causalgia and winging at the right scapula.¹ Although that physician also indicated that further diagnostic testing was appropriate, Dickinson's employer, respondent American Medical Response, accepted her claim for the right arm and shoulder. Dickinson did not administratively challenge the scope of claim acceptance at that time.

Soon after the August 1998 accident, however, Dickinson also reported neck pain. On September 3, 1998, a medical report indicated that Dickinson had a work- or treatment-related worsening of a preexisting cervical disc herniation. A few days later, on September 8, 1998, a physician examined Dickinson's cervical spine, and in comparing a recent magnetic resonance image (MRI) to one taken previously, in March 1998, he noted significant changes; nevertheless, the physician reported that while the August 1998 industrial injury possibly caused the noted changes, causation was "much more difficult to prove." Additional testing and physical therapy were recommended.

In the following months, Dickinson was tested for and diagnosed with likely mild brachial plexus injury and possible mild cervical radiculopathy.² Medication was prescribed and physical therapy was recommended. Apparently, Dickinson underwent physical therapy during the fall and winter of 1998, discontinuing the physical therapy around February 1999.

Around that time, Dickinson ostensibly requested that her cervical spine condition be included in her workers' compensation claim. On March 16, 1999, however, American Medical Response's third-party administrator denied Dickinson's request. The administrator's letter stated that it would not pay for Dickinson's neck injuries as part of her claim because, in the September 8 medical report, her physician was unable to state, with a reasonable degree of medical probability, that her neck condition was related to the industrial injury. Dickinson did not administratively challenge the March 1999 letter.

In June 1999, Dickinson returned to her physician with complaints of upper right extremity tenderness, and physical therapy was again recommended. As part of the physical therapy that Dickinson underwent over the next several months, Dickinson's cervical issues were noted and attended to. Meanwhile, a September 30, 1999, neurology report indicated that Dickinson suffered a burning sensation that originated at the right scapula and radiated down her right arm. The diagnosis was "status post possible brachial plexus injury, work-related," as well as degenerative disc disease at the cervical spine. Although the neurologist indicated that it was unlikely that the condition shown on the MRIs contributed to Dickinson's symptoms, he also opined that the 1998 injury had "contributed significantly" to her current problems.

In December 1999, Dickinson's physician noted that she continued to suffer from neck and shoulder pains, and he recommended that physical therapy be reinstated. Apparently, the administrator authorized a limited number of physical therapy sessions. Thereafter, in March 2000, Dickinson reported to her physician with increased neck and shoulder pain, apparently due to increased work duties. Her physician noted that an MM showed evidence of cervical radiculopathy and myelopathy,³ and he stated that, although some timing issues existed, the injuries "historically" were related to Dickinson's work or her work-related injury's medical treatment.

In June 2000, a neurologist reviewed Dickinson's extensive medical history and concluded that the industrial accident had resulted in a right wrist, right upper extremity strain, a right arm and shoulder strain injury, and a right brachial traction injury. In addition, he opined that treatment of those injuries had exacerbated Dickinson's preexisting cervical degenerative disease; radicular symptoms were noted. Despite largely successful treatments, the neurologist stated, Dickinson continued to suffer from surgically addressable spinal stenosis,⁴ which was caused by her preexisting cervical degenerative disease and complicated by her treatments.

During the following months, to treat any cervical radiculopathy, the third-party administrator apparently paid for Dickinson to have several right nerve root block injections. In April 2001, the administrator sent Dickinson for an independent medical examination with Dr. R.W. Patti, who suggested that many of Dickinson's current complaints were due to her preexisting injuries, that her condition was stable and ratable, and that apportionment was appropriate.

Consequently, the administrator scheduled Dickinson for a PPD evaluation with Dr. Larry J. Tarno for her "cervical injury," also instructing the rating physician to examine Dickinson's "right upper extremity, cervical" and to apportion any rating based on preexisting conditions. Dickinson was informed that her medical file would be submitted so that her cervical spine and right upper extremity could be rated. In September 2001, Dr. Tarno indicated that despite Dickinson's preexisting condition, her cervical spine problems suggested a work-related injury and, in any case, because those problems required more treatment, a PPD rating was inappropriate at that time. Dickinson thus continued to obtain diagnostic treatment and take medications, and she was advised to obtain a surgical opinion.

In December 2002, an administrative status report indicated that the administrator was awaiting an opinion from another physician regarding whether the cervical spine should be accepted as part of the industrial injury claim. A few days later, that physician listed as industrial, among other things, right cervical and shoulder strains, chronic complaints of neck pain, right shoulder pain, and numbness in her right fingers, right brachial plexus involvement with mild radiculopathy, and preexisting degenerative disc disease, indicating that Dickinson's disc herniation seemed to have improved and that no neural compromise was evident. As for nonindustrial conditions, he contradictorily listed chronic complaints of neck pain, right shoulder pain, and numbness in the right fingers.

In February 2003, the administrator scheduled Dickinson for another PPD evaluation of her right shoulder/cervical strain injury, this time with Dr. Maureen E. Mackey. Dickinson failed to appear for her evaluation, and therefore, her claim was closed. She administratively appealed.

While Dickinson's administrative appeal was pending, in December 2003, Dickinson attended a PPD evaluation with the originally scheduled physician, Dr. Mackey. The resulting PPD report connected her condition to a work-related worsening of her preexisting condition, diagnosing bilateral cervical radiculopathy and multilevel cervical herniated discs, as well as right shoulder strain. A 27-percent PPD rating was given, on a total body basis, based on 2-percent impairment to the right shoulder and...