Grover C. Dils Medical Center v. Menditto
Grover C. Dils Medical Center v. Menditto
Opinion of the Court
OPINION
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
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 Men-ditto’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.”
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 Men-ditto, 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 com
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.
Here, the appeals officer’s determination that Menditto’s 1997 industrial condition had physically worsened, warranting additional compensation, is clearly supported by substantial evidence. Consequently, the main issue on appeal is whether the appeals officer properly held Menditto’s subsequent employer, Dils Medical, instead of her previous employer, Olsten, responsible for Menditto’s worsened condition under the last injurious exposure rule.
The last injurious exposure rule
In successive injury/successive employer cases, the last injurious exposure rule places full liability upon the carrier covering the risk at the time of the most recent injury or aggravation of a prior injury that bears even a slight causal relation to the disability.
The appeals officer’s characterization of the injury, in light of the facts, medical evidence and circumstances, is a fact-based conclusion of law entitled to deference.
Other courts have grappled with this issue. The Delaware Supreme Court, in Standard Distributing Co. v. Nally,
And in Rumford Press v. Travelers Insurance Co.,
Although this court has not explicitly distinguished the terms “aggravation” and “recurrence” in this context,
Finally, determining which employer is liable in successive industrial injury cases requires that “aggravation” and “recurrence” be distinguished in the legal sense, not just the medical sense.
Here, the appeals officer based her conclusion on our discussion in Collett Electric v. Dubovik,
Collett does not stand for the proposition that any work-related incident that results in increased symptoms necessarily contributes to the causation of a disabling condition, and it is distinguishable from the present case. Unlike the Collett claimant, Menditto was not diagnosed with a cumulative trauma injury, where each addi
The appeals officer concluded that the factual details recited in the early medical reporting were the most reliable. The early medical reports, however, indicate that Menditto continued to suffer from symptoms of her cervical and lumbar injuries, suggesting that those injuries had not completely resolved. Even though no additional treatment was recommended in 1997, Menditto reported to doctors in 1998, 1999, and 2000 for similar symptoms. And although some doctors later indicated that Menditto felt that her pain had somewhat abated since the 1997 accident, many of those doctors’ reports at the same time recognize the ongoing nature and progressive worsening of her 1997 condition. At the least, those medical reports establish that Menditto began to reexperience symptoms at some point before the February CPR incident at Dils Medical. Moreover, many of the later reports reflecting Menditto’s abatement statements are inconsistent with the early medical reporting found more reliable by the appeals officer; some were even made before the doctors had reviewed the 1997 medical evidence. Although the reports might indicate that Menditto’s symptoms increased with continued work, evidence that Menditto complained of similar symptoms before the February CPR incident should not be ignored. Although this court will not disturb determinations of credibility, since the record’s evidence indicates that Menditto continued to suffer from symptoms relating to the 1997 injuries before
Finally, we note that the appeals officer appears to have relied on several doctors’ reports using the term “aggravation” in connection with Menditto’s most recent symptoms. However, although some of Menditto’s physicians used the term “aggravation” in connection with her work activities, others used the term “recurrence” and some used both terms; it appears in all cases that the doctors were referring to the appearance of symptoms, rather than to Menditto’s actual physical condition. And many of the physicians merely noted that Menditto had indicated that the February and April incidents “aggravated” her prior back injury. Clearly, Menditto’s use of the term “aggravation” to describe her symptoms does not conclusively establish medical causation. In addition, the April 13, 2001 MRI appears to be the most recent MRI available; therefore, any suggestion that Menditto’s worsened condition, as evidenced in the MRI, can be attributed to the April 25 incident is suspect. As a result, it appears that the appeals officer based her conclusions on legally inconsistent medical evidence.
Accordingly, as we have now clarified the standards for determining whether a subsequent condition is an “aggravation” or a “recurrence” under the last injurious exposure rule, and because the appeals officer apparently relied upon evidence inconsistent with her conclusions, we conclude that this matter should be remanded for a new determination of whether the medical evidence establishes that the February CPR and/or April lifting incidents “aggravated” Menditto’s back and neck condition, or whether Menditto suffered a mere “recurrence.” In making the new determination, the appeals officer should consider whether the record contains any medical evidence demonstrating that the two incidents constituted “injuries” or “accidents” as defined by Nevada workers’ compensation law or whether Menditto merely suffered progressively worsening symptoms. We reiterate that, in ongoing symptoms cases, the mere increased severity or exacerbation of symptoms, without more, is not “sudden” or “unforeseen” and does not constitute “objective symptoms of an injury” under Nevada’s workers’ compensation law.
And even if either of the two incidents constituted an injury or accident, the appeals officer should consider whether evidence in the record demonstrates that these incidents independently contributed to Menditto’s final disabling condition. Thus, the appeals officer must determine whether any evidence sufficiently connects
Finally, Dils Medical alternatively argues that Menditto’s notification of injury was untimely. We note that, although the timeliness issue was raised during the hearing before the appeals officer, the appeals officer’s original determination failed to address this issue. If, when rendering a new determination, the appeals officer determines that Menditto’s subsequent condition is an aggravation, the appeals officer’s new determination should also address Dils Medical’s timeliness argument.
CONCLUSION
Under the last injurious exposure rule, an aggravation is established when medical evidence demonstrates that a specific subsequent work-related incident, amounting to an injury or accident, independently contributed to the final disabling condition. In this instance, the appeals officer’s determination was based on inapplicable decisional law and inconsistent evidence. Accordingly, we reverse the district court’s order denying Dils Medical’s petition for judicial review, and we remand this matter to the district court with instructions to grant the petition and to direct the appeals officer to render a new determination regarding which employer is responsible for Menditto’s claim under the last injurious exposure rule, in light of this opinion.
Construction Indus. v. Chalue, 119 Nev. 348, 352, 74 P.3d 595, 597 (2003) (citations omitted).
Ayala v. Caesars Palace, 119 Nev. 232, 235, 71 P.3d 490, 491-92 (2003) (quoting SIIS v. Montoya, 109 Nev. 1029, 1032, 862 P.2d 1197, 1199 (1993)).
Chalue, 119 Nev. at 352, 74 P.3d at 597.
Ayala, 119 Nev. at 235, 71 P.3d at 491.
Las Vegas Hous. Auth. v. Root, 116 Nev. 864, 869, 8 P.3d 143, 146 (2000).
See SIIS v. Swinney, 103 Nev. 17, 20, 731 P.2d 359, 361 (1987).
630 A.2d 640, 643 (Del. 1993).
Id. at 645 (quoting DiSabatino & Sons, Inc. v. Facciolo, 306 A.2d 716, 719 (Del. 1973)). “The need to establish a second accident or event, beyond the normal duties of employment, is a continuing requirement in order to shift liability from the first carrier who bears responsibility for the effect of the original injury.” Id. at 646.
Id. at 645.
480 A.2d 162 (N.H. 1984).
658 N.W.2d 388, 391 (S.D. 2003).
See generally Root, 116 Nev. at 869-70, 8 P.3d at 147 (determining that the evidence demonstrated an aggravation rather than a recurrence but not explicitly distinguishing between the two terms); Collett Electric v. Dubovik, 112 Nev. 193, 911 P.2d 1192 (1996) (same); Swinney, 103 Nev. at 20, 731 P.2d at 361 (same).
114 Nev. 1340, 1343, 971 P.2d 1257, 1259 (1998); see also NRS 616C.160.
See NRS 616A.030 (defining “accident” as “an unexpected or unforeseen event happening suddenly and violently, . . . producing at the time objective symptoms of an injury”); NRS 616A.265(1) (defining “injury” as “a sudden and tangible happening of a traumatic nature, producing an immediate or prompt result which is established by medical evidence”); see also Swinney, 103 Nev. at 20, 731 P.2d at 361. Additional support for the last injurious exposure rule’s “injury” or “accident” prerequisite is found in NRS 616C.015(1), which requires an employee to provide the employer with written notice of any work-related injury “as soon as practicable, but within 7 days after the accident,” and NRS 616C.025, which provides that, with certain exceptions, an injured employee is barred from receiving workers’ compensation if NRS 616C.015 is not complied with. When a subsequent incident results in an injury or accident, the timing requirements (and any exceptions) appropriately apply as if the subsequent injury were a new claim. However, when an injury progressively worsens, it is difficult to immediately attribute that worsening to any specific incident, and the seven-day deadline is inapplicable. See generally NRS 616C.390 (governing claim reopening).
See also Root, 116 Nev. at 869, 8 P.3d at 146 (likening the “aggravation” of a prior injury to a new injury); Swinney, 103 Nev. at 20-21, 731 P.2d at 361 (recognizing that an “aggravation” finding is supported by evidence that the claimant’s previous condition improved after surgery, the claimant received no medical treatment for over a year prior to the second episode, and the second episode rose to the level of an injury or accident).
SIIS v. Kelly, 99 Nev. 774, 776, 671 P.2d 29, 30 (1983), superseded by statute, NRS 616C.175.
See Burks, Inc. v. Blanchard, 531 S.W.2d 465, 467 (Ark. 1976) (affirming a finding of “recurrence” when normal “working, stooping and bending” activities precipitated the anticipated return of back pain, even though “an injury did indeed occur”); Crowe v. Jeld-Wen, 712 P.2d 145, 149 (Or. Ct. App. 1985) (concluding that the claimant’s subsequent employment had not contributed to her back disability, since she “merely experienced continuing symptoms and increased pain from her original injury when she engaged in continued activity”).
Nally, 630 A.2d at 645.
United Methodist Senior Services v. Ice, 749 So. 2d 1227, 1231, 1232 (Miss. Ct. App. 1999) (recognizing that determining whether an injury has been aggravated under the last injurious exposure rule calls for an actual worsening of the injury, not merely an analysis of the “ebb and flow of symptoms”: “Ip]ain is a symptom of an injury; that the pain worsens with certain activity does not mean the activity is increasing the injury but only that the activity is painful as a result of the injury”); Matter of Compensation of Wills, 650 P.2d 109, 109 (Or. Ct. App. 1982) (stating that the “resolution [of subsequent employer responsibility] depends on whether the second of two injuries . . . worsened the underlying condition or merely aggravated [the] symptoms”).
Truck Ins. Exchange v. CNA, 624 N.W.2d 705, 709 (S.D. 2001).
Id. at 711; see also Matter of Compensation of Perdue, 631 P.2d 346, 348-49 (Or. Ct. App. 1981) (holding the previous employer liable when the claimant’s previous symptoms persisted and no evidence demonstrated that he had sustained additional trauma, but only “a sudden aggravation of symptoms, worse than the first time, suggesting that his chronic back sprain ha[d] worsened and might now limit his ability to work to some extent”); Town of Hudson v. Wynott, 522 A.2d 974, 978 (N.H. 1986) (“Although there are situations in which a fact-finder may ignore uncontradicted medical testimony and rely on lay testimony and his own inferences, . . . [t]he causation of a back injury of this nature is a matter properly within the province of medical experts.” (citation omitted)).
112 Nev. 193, 911 P.2d 1192 (1996).
See Titus, 658 N.W.2d at 390 (noting that, “ ‘when a disability develops gradually, or when it comes as a result of a succession of accidents, the insurance carrier covering the risk at the time of the most recent injury ... is usually liable for the entire compensation’ ” (quoting St. Luke’s Midland Regional v. Kennedy, 653 N.W.2d 880, 885 (S.D. 2002))); cf. Travelers Ins. Exchange, 624 N.W.2d at 711 (holding, under test reiterated in Titus, the first of several employers liable for claimant’s repetitive work activity disability because the disability was already in place at time claimant “left the risk” and there was no medical evidence demonstrating that the subsequent continued activity contributed even slightly to the cause of disability).
See supra note 19.
Concurring Opinion
concurring:
I concur in the majority analysis of the “last injurious exposure” rule. This latest articulation of the rule clarifies one aspect of a very complex statutory framework for compensating injured Nevada workers.
In Las Vegas Housing Authority v. Root,
The complicated analytical exercise performed by the majority in this matter typifies our recent attempts at interpreting the Nevada Industrial Insurance Act.
Many of the current legislative formulations for compensating injured workers came about in response to a fiscal crisis that developed in the late 1980s and early 1990s. To address the crisis in part, the 1993 Legislature enacted NRS 616A.010(2), which abrogated the previous common-law rule requiring broad or “liberal” construction of the Nevada Industrial Insurance Act in favor of injured or disabled employees. This provision was calculated to “neutralize” the rules of interpretation of the Nevada Industrial Insurance Act, has governed our decision making process up to the present, and was implicitly applied in the instant case. Unfortunately, as the complex analytics of the majority in this matter demonstrate, the neutrality rule provides precious little guidance to administrative law judges charged with deciphering confusing fact patterns and medical issues. Certainly, on remand, the administrative tribunal will find that the neutrality doctrine will, in opposition to its common-law predecessor, muddle rather than facilitate the ultimate resolution of this particular claim. In my view, this rule of interpretation, in its relation to an already complex statutory scheme, has created an atmosphere in which our workers’ compensation claims process often becomes more about principle than about the people involved.
I want to stress that the problems exemplified by this case are not the fault of any functionary or participant in the workers’ compen
Because our role is limited to interpreting the Nevada Industrial Insurance Act, we must await intervention by the Legislature to address these issues. I take this opportunity to express my hope that the Legislature will commence a process of reevaluation of the Nevada workers’ compensation system at the earliest possible time.
Here, NRS 616C.390.
116 Nev. 864, 8 P.3d 143 (2000).
Id. at 869, 8 P.3d at 146.
See, e.g., Ayala v. Caesars Palace, 119 Nev. 232, 71 P.3d 490 (2003); Construction Indus. v. Chalue, 119 Nev. 348, 74 P.3d 595 (2003); McClanahan v. Raley’s, Inc., 117 Nev. 921, 34 P.3d 573 (2001); SIIS v. Engel, 114 Nev. 1372, 971 P.2d 793 (1998); Rosser v. SIIS, 113 Nev. 1125, 946 P.2d 185 (1997); SIIS v. Bokelman, 113 Nev. 1116, 946 P.2d 179 (1997).
Reference
- Full Case Name
- GROVER C. DILS MEDICAL CENTER, Appellant, v. DALE MENDITTO and OLSTEN HEALTH SERVICES, Respondents
- Cited By
- 23 cases
- Status
- Published