Langman v. Nevada Administrators Inc.2/26/1998
Affirmed.
FACTS
On May 13, 1988, appellant injured his lower back in the course and scope of his employment at the Horseshoe Hotel and Casino ("Horseshoe"). He underwent surgery for posterior lumbar interbody fusion, total disc replacement, and autogeneous graft on December 21, 1989.
Appellant's claim for workers' compensation was accepted, and appellant was referred for a permanent partial disability ("PPD") rating on March 7, 1990. Following an examination, appellant received a 13.5% PPD rating for loss of range of motion and significant disc disease. The examining physician did not note any indication that the lumbar fusion or other parts of the 1989 surgery had been unsuccessful. On April 16, 1990, appellant elected to receive a lump sum award of $23,238.87 based on his 13.5% PPD rating.
On July 14, 1994, appellant was working around his swimming pool when the pool filter exploded, striking appellant in the chest. Appellant was sent flying ten to fifteen feet through the air and landed on his back. He complained of pain in his lumbar spine, radiating down his left leg, and underwent a second surgery for an instrumented fusion and an iliac crest bone graft on August 8, 1994. Appellant's treating physician, Dr. Frances D'Ambrosio, concluded that appellant's May 13, 1988 industrial injury was the primary cause of the subsequent injury because his back had not properly fused after the first surgery.
On October 31, 1994, based on Dr. D'Ambrosio's diagnosis, appellant requested the reopening of his claim. The third party administrator for the Horseshoe reopened the claim for medical investigation only, and referred appellant to Dr. David Oliveri for an independent medical examination on December 22, 1994. In his report, Dr. Oliveri made no reference to the success or failure of the 1989 lumbar fusion. Instead, Dr. Oliveri found that the July 14, 1994 injury "represents a new injury with a new disk herniation that was not present at the time of the original MRI scan in 1989." Dr. Oliveri stated that " ny increase in his level of disability at this point is not industrially related and is, in my opinion, primarily related to the non-work-related injury of 7/14/94." Accordingly, Dr. Oliveri concluded that " ll treatment rendered for [appellant's] current complaints that have resulted since July of 1994 should be rendered on a non-industrial basis."
On December 2, 1994, the third party administrator denied the reopening of appellant's claim; the denial was affirmed by the hearing officer on January 12, 1995, following a hearing on the merits. The case came before the appeals officer on April 17, 1995, and the evidence presented to the appeals officer included Drs. D'Ambrosio's and Oliveri's reports and appellant's medical records. The evidence also included a report from Dr. James Thomas, Jr., who conducted a medical review of appellant's records on February 21, 1995, without examining appellant. In his report, Dr. Thomas stated that in his opinion, appellant's 1989 lumbar fusion never completely healed, leaving the spinal segment vulnerable to the second injury in 1994. Accordingly, Dr. Thomas concluded that there was "a definite relationship" between appellant's 1989 surgery and his need for surgery in 1994.
In a decision filed May 19, 1995, the appeals officer affirmed the denial of appellant's request to reopen his claim. The appeals officer found that " he explosion of the pool filter on July 14, 1994, and not the industrial accident on May 13, 1988, was the primary cause of Claimant's new injury." The appeals officer further found that in light of the mechanics of the July 14, 1994, accident, the pre-closure medical reports
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