Grover C. Dils Med. Ctr. v. Menditto

• Decision Date: 09 June 2005
• Docket Number: No. 41732.,41732.
• Citation: 112 P.3d 1093,121 Nev. 278
• Parties: GROVER C. DILS MEDICAL CENTER, Appellant, v. Dale MENDITTO and Olsten Health Services, Respondents.
• Court: Nevada Supreme Court

112 P.3d 1093

121 Nev. 278

GROVER C. DILS MEDICAL CENTER, Appellant, v. Dale MENDITTO and Olsten Health Services, Respondents.

No. 41732.

Supreme Court of Nevada.

June 9, 2005.

Moran & Associates and Jill M. Lynne, Las Vegas, for Appellant.

Craig P. Kenny & Associates and Kathryn N. Potvin, Las Vegas, for Respondent Menditto.

Santoro, Driggs, Walch, Kearney, Johnson & Thompson and Javier A. Arguello, Las Vegas, for Respondent Olsten Health Services.

Before MAUPIN, DOUGLAS and PARRAGUIRRE, JJ.

OPINION

PER CURIAM.

In this appeal, we examine the "last injurious exposure rule," which links workers' compensation liability with the employment that last contributed to the causation of a subsequent disabling condition. Primarily, the parties dispute whether the claimant's most recent disabling condition is, under the rule, the result of a work-related "aggravation" and thus the most recent employer's responsibility, or merely a "recurrence" of her previous injuries, which remains the former employer's responsibility. This opinion clarifies the standards for determining whether a subsequent condition is an "aggravation" or a "recurrence" under the rule: an "aggravation" is the result of a specific, intervening work-related trauma, amounting to an "injury" or "accident" under workers' compensation law, that independently contributes to the subsequent disabling condition; a "recurrence" occurs when no specific incident can independently explain the worsened condition.

FACTS

In January 1997, while employed by respondent Olsten Health Services, respondent Dale Menditto was involved in a work-related automobile accident; her subsequent workers' compensation claim was accepted, and she received treatment for her injuries. Thereafter, Menditto reported continued headaches and neck pain and intermittent numbness in her hands. A physician noted that Menditto's cervical spine discs protruded and were marked by mild spondylosis and spurring anteriorly at C4-5, C5-6 and C6-7. The physician related Menditto's symptoms to cervical radiculopathy. In the following months, Menditto complained multiple times of neck and low back pain, sensations of burning, and numbness. Menditto's doctors noted that her C5-6 disc protrusion could be causing some of her complaints. Even so, the doctors discovered no other objective findings, and despite Menditto's persisting symptoms, they recommended a full-duty work release. In June 1997, Olsten notified Menditto that her claim would be closed.

During the years following claim closure, Menditto occasionally sought medical assistance for similar symptoms. In 1998, Dr. Farhana Kamal diagnosed Menditto with chronic neck and back pain. In November 1998 and November 1999, Menditto obtained x-rays of her neck and back. The x-rays showed a decrease in the lumbosacral disc space because of mild degenerative changes or normal variant. In September and December 2000, respectively, Menditto reported to Dr. Kamal and another physician that she felt pain in the lower spine, "burning" hands and feet, and total numbness. She complained of feeling "pain all over" in late December 2000.

A March 15, 2001 medical report, from Dr. Kamal, indicates that Menditto had a two-year history of backaches and that she continued to feel pain in the low back that radiated to both legs, numbness in her arms and hands, and swelling. The report further notes that Menditto had experienced increasing pain since the 1997 accident.

Dr. Scott A. Parry also saw Menditto for neck and back pain in March 2001. Dr. Parry's report indicates that her troubles began with the 1997 accident; his impression was "cervical and lumbar radiculopathy status post whiplash type injury four years ago." On April 13, 2001, an MRI was obtained of Menditto's neck and back. Upon its review, Dr. Parry noted that Menditto had a bulging disc at C4-5 and C5-6 and "fairly moderate to severe degenerative disk disease at the lumbosacral junction." His diagnosis remained the same. Months later, in response to questions posed by Menditto's attorney, Dr. Parry stated that Menditto experienced "an exacerbation of her symptoms in February of 2001" and that "any pain she had in the cervical lumbar region in 2001 was likely a re-aggravation of a pre-existing condition.... [N]early 100%[ ] would be attributable to the pre-existing condition that was a result of the 1997 industrial accident."

Meanwhile, Menditto changed employers; she began working for appellant Grover C. Dils Medical Center (Dils Medical) on November 10, 1999. On February 12, 2001, in the context of providing CPR to a patient, Menditto maintained a straddling position for an extended period. Later, on April 25, 2001, Menditto helped lift and maneuver an obese patient who had fallen out of bed. Shortly thereafter, in May 2001, Menditto's painful physical condition caused her to stop working. She subsequently signed a notice of injury form, asserting that her actions during the February CPR incident had hurt her back and neck, and that she had injured her back and spine during the April lifting incident.

Menditto continued to seek relief from various physicians. In May 2001, three doctors examined Menditto. Essentially, they all opined that Menditto's symptoms arose from her 1997 injuries and had since grown worse. The doctors noted that, according to Menditto, she had returned to her pre-accident baseline within several months after the accident, and she began reexperiencing back pain and other symptoms two to eight weeks earlier. One doctor, however, noted that he did not have available the 1997 medical records. Although another doctor suggested that Menditto's 1997 pain had subsided except for intermittent, nondebilitating pain, he also noted progressive neck difficulties since the 1997 accident, with radiating pain and constant headaches. The doctors found that Menditto had "recently" suffered a "recurrence" of her symptoms, which had been "aggravated" by her occupation as a nurse. Two of the doctors never specifically mentioned the February CPR or April lifting incidents; the other doctor stated only months later that Menditto had "sustained a re-aggravation of her neck and lower back pain in a work accident in February."

In June 2001, another doctor, Dr. Dale G. Stott, reported that after the 1997 accident, Menditto underwent therapy and was able to return to work, but that she "once again developed neck pain with a recurrence of symptoms including numbness ... and burning" during the February CPR incident, and she sustained pain in the lower back during the April lifting incident. He stated that, although Menditto recovered from her 1997 injuries, she suffered recurrences of pain "in the process of working," due to her C4-5 cervical disc herniation/cervical radiculopathy and lumbar degenerative disc disease.

Dr. Kamal signed the June 2001 workers' compensation claim form for cervical disc herniation and degenerative lumbar disc disease, directly connecting the claims to Menditto's employment by checking the appropriate box and writing "aggravated at work." He also noted that Menditto's symptoms began with the 1997 accident and had been "aggravated by recent injury." But he also wrote on a physician's certificate that the date Menditto's condition commenced was "unknown." Dr. Kamal additionally penned a June 2001 letter in which he noted that Menditto was under his care for problems originating from the 1997 accident, that an (unidentified) MRI showed that her disc herniation had worsened, and that the aggravated condition required reopening of the 1997 claim.

Dils Medical's insurer denied Menditto's claim; consequently, Menditto requested Olsten to reopen the 1997 claim. Olsten also denied her request, and Menditto administratively appealed both Dils Medical's and Olsten's determinations. At the administrative hearing, the above evidence was submitted to the appeals officer. Menditto also testified as to the progressively worsening nature of her post-accident pain, which apparently increased, but did not change, with her work duties, but she was unable to recall anything that she had done that specifically caused the worsened pain. She also admitted that she had catered some of her statements to the doctors, overplaying the two incidents, and that at least one of the doctors' reports incorrectly indicated that her pain had subsided and did not interfere with her daily functions.

The appeals officer, however, found that Menditto's testimony at the hearing was not credible and instead purported to rely on "the recitation of facts contained within the early medical reporting." The appeals officer concluded that Menditto's condition had worsened since claim closure and had been "aggravated" by the February and April 2001 work-related incidents. Therefore, the appeals officer determined that Dils Medical is responsible for Menditto's claim under the last injurious exposure rule. The district court denied Dils Medical's subsequent petition for judicial review, and Dils Medical appeals.

DISCUSSION

In the context of an appeal from a district court order denying a petition for judicial review of an administrative decision, this court examines the administrative decision for clear error or abuse of discretion.¹ While we independently review purely legal determinations, the appeals officer's fact-based conclusions of law are entitled to deference and will not be disturbed if they are supported by substantial evidence. Substantial evidence is "that `which a reasonable person might accept as adequate to support a conclusion.'"² Nor will this court substitute its judgment for that of the appeals officer as to issues of credibility or the weight of the evidence.³ Our review is limited to the record before the appeals officer.⁴

Here, the appeals officer's determination that Menditto's 1997 industrial condition had physically worsened, warranting additional compensation, is clearly supported by...