Riverboat Hotel Casino v. Harold's Club

• Decision Date: 28 August 1997
• Docket Number: No. 28817,28817
• Citation: 113 Nev. 1025,944 P.2d 819
• Parties: RIVERBOAT HOTEL CASINO, Appellant, v. HAROLD'S CLUB, Respondent.
• Court: Nevada Supreme Court

Page 819

944 P.2d 819

113 Nev. 1025

RIVERBOAT HOTEL CASINO, Appellant, v. HAROLD'S CLUB, Respondent.

No. 28817.

Supreme Court of Nevada.

Aug. 28, 1997.

Piscevich and Fenner, Reno, for Appellant.

Perry and Spann and Douglas R. Rands, Reno, for Respondent.

OPINION

PER CURIAM:

Febe Gothro (Gothro) worked full-time for appellant Riverboat Hotel Casino (Riverboat) dealing double-deck blackjack and part-time with respondent Harold's Club dealing single-deck blackjack. While working for both Riverboat and Harold's Club, Gothro began to experience work-related pain in her left wrist. She filed a notice of injury with Riverboat in July, 1993; however, she did not seek medical treatment until March, 1994, when she filed claims for compensation with Riverboat, Harold's Club, and the State Industrial Insurance System (SIIS). Her claims were denied, and she requested a hearing. A hearing officer affirmed Harold's Club and SIIS's denial of Gothro's claims, but reversed Riverboat's determination, ordering it to assume full responsibility for Gothro's claim. An appeals officer affirmed the hearing officer's decision. Riverboat petitioned the district court for judicial review; the district court denied Riverboat's petition and affirmed the appeals officer's decision. We conclude that the appeal's officer erred and that liability for Gothro's claim should have been apportioned between Riverboat and Harold's Club on the basis of each employer's responsibility for wages.

FACTS

On October 11, 1992, Gothro began working full-time (forty hours per week) for Riverboat dealing double-deck blackjack. On April 20, 1993, Gothro also began dealing single-deck blackjack part-time (twenty-four to thirty-two hours per week) at Harold's Club, working three or four eight-hour shifts a week. In July of 1993, Gothro filed an injury report with Riverboat, complaining of pain in her left wrist. The report was forwarded to SIIS, which was Riverboat's industrial insurer in July, 1993. Gothro did not seek medical treatment at this time. On March 7, 1994, Gothro filed another injury/occupational disease report with Riverboat, complaining of pain in both wrists and the backs of her hands. By this time, Riverboat had become self-insured. ¹ That same day, Gothro sought medical care for her condition. Dr. Lex Simpson found that she had tendinitis caused by repetitive use in dealing and shuffling cards and completed a "C-4" form for submission to SIIS. On March 29, 1994, Gothro filed a claim with SIIS asking it to "reopen" her case. On April 19, 1994, Gothro's attorney asked SIIS to determine the compensability of her claim. On June 15, 1994, SIIS responded that since no claim had been filed with SIIS while it had insured Riverboat (SIIS had only received an injury notice in July, 1993), it could not render a determination.

Meanwhile, on May 5, 1994, Gothro filed an injury report with Harold's Club, after presenting Dr. Simpson's diagnosis to a Harold's Club supervisor in April, 1994. In the report, Gothro claimed that she had attempted to file an injury report with her pit boss and various supervisors in July, 1993, but had been "refused." However, Gothro testified before the appeals officer that she did not talk to anyone at Harold's Club about her injuries until December, 1993. In December, 1993, Gothro complained to a Harold's Club pitboss, Linda Limbrada, and several supervisors that her "hands hurt." Limbrada asked Gothro if she had injured her hands/wrists at work. Gothro said "no" because she did not know if the pain had been caused by the job. Allegedly, Limbrada then stated that since the injury was not work-related, a report could not be filed. Gothro testified that she had thought that Limbrada was asking her whether she had had an accident at work, like dropping something on her hands or slamming them in a door, and that was why Gothro said that her injury was not job related. On May 23, 1994, Harold's Club denied Gothro's claim as "a preexisting condition due to [her] primary employment with the Riverboat Hotel & Casino," citing the fact that she had first filed an injury report with Riverboat, and not Harold's Club, in July, 1993--two months after starting work at Harold's Club.

On June 9, 1994, another physician, Dr. Steven Atcheson, sent a letter to Riverboat's insurance administrator, Nevada Administrators. In the letter, Dr. Atcheson confirmed Dr. Simpson's diagnosis of industrially caused use-related hand and wrist pain. Of interest, Dr. Atcheson also stated the following:

[Gothro] is working what sounds like almost two full time jobs dealing twenty-one and I think I would be rather stunned if she did not have some degree of hand and wrist pain.

....

I do believe that she can continue in her current position as a double deck twenty-one dealer, but that is going to cause her more pain than dealing single deck.

....

It is impossible for me to state which job is the more proximate cause of her current discomfort. I would guess that both are about equally involved in contributing to her pain, excepting that shuffling the double deck is more painful to her than the single deck.

(Emphasis added.)

In an earlier letter sent to Riverboat's attorney, Dr. Atcheson stated, among other things:

I believe that [Gothro's] pain has arisen as a result of working two separate jobs as a dealer.... I cannot state which job contributed more to her symptoms. I would note that she did not have any symptoms of hand pain when she was working a single 40-hour per week job.... Her symptoms apparently did not arise until her dual employment commenced.

(Emphasis added.) Notwithstanding Dr. Atcheson's correspondence, on June 20, 1994, Riverboat denied Gothro's claim as untimely because she had reported the injury in July, 1993, but did not seek medical treatment until March 7, 1994.

Gothro timely filed an appeal of SIIS's, Harold's Club's, and Riverboat's determinations to deny coverage. According to Gothro, she quit working for Harold's club in August, 1994, due to the pain in her hands and wrists; she continued working full-time for Riverboat. On August 4, 1994, a hearing officer affirmed SIIS's and Harold Club's denial of Gothro's claims, ² but reversed Riverboat's determination, finding that Gothro's "job duties performed at [Riverboat] proximately caused the bilateral overuse syndrome." There was no specific determination as to whether Gothro's condition preexisted her employment with Harold's Club.

On March 24, 1995, an appeals officer affirmed the hearing officer's decision. The appeals officer noted that all parties agreed that Gothro's injury was "industrially caused." Before the appeals officer, Riverboat argued that Harold's Club bore sole responsibility for Gothro's condition pursuant to the "last injurious exposure rule." Alternatively, Riverboat contended that if it was at all responsible for Gothro's claim, such responsibility arose in July, 1993 (when Gothro first filed a notice of injury but did not seek medical treatment), when Riverboat was still insured by SIIS.

In its findings of fact, the appeals officer stated:

[T]here is no medical reporting which supports finding either Harolds Club [sic] or the Riverboat primarily responsible for claimant's condition and the hypothesis that double-deck dealing at the Riverboat was more causative than single-deck dealing at Harolds Club [sic] or that claimant did not suffer problems until she undertook employment beyond the standard 40-hour work weeks is just that--hypothesis by counsel which expert physician[s] are unwilling to make.

(Footnote omitted.) The appeals officer concluded that pursuant to the last injurious exposure rule, Riverboat was solely responsible for Gothro's claim and that the date of the claim (March 7, 1994) rather than the date of her first report of injury (July 12, 1993) was determinative. Accordingly, the appeals officer ordered Riverboat, as a self-insured employer, to assume full responsibility for Gothro's claim.

On June 6, 1995, Riverboat petitioned the district court for judicial review. The district court denied Riverboat's petition and affirmed the appeals officer's decision. On appeal to this court, Riverboat argues that the appeals officer erred in concluding that under the last injurious exposure rule it, and not Harold's Club, was responsible for Gothro's industrially-caused condition. Riverboat asserts that the appeals officer's finding that there was not any medical evidence to support the position that Gothro did not suffer...