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Bally's Grand Hotel & Casino v. Reeves11/26/1997
ote subscribed by Bally's "medical adviser," Dr. Vincent Cedarblade. In transmitting Dr. Cedarblade's handwritten note, Bally's claims administrator did not deny Ms. Reeves' claim, but did advise the hearing officer that the insurer's medical advisor "did not think that [Bally's] should accept responsibility for a pre-existing condition." Dr. Cedarblade's note read as follows:
9-25-89. It appears she was treated for dizziness and headaches and postural problems stemming from a previous accident in 1987 and has continued to do so after her accident in the parking lot at Bally's. Therefore I don't think you have to accept liability for a pre existing problem-- V. Cedarblade
Other than the previously mentioned September 18, 1989, hearing, the record does not reveal any further hearings by the hearing officer. Between the time of the September 18, 1989, hearing and the hearing officer's sua sponte order, no testimony was presented before the hearing officer. Apparently, however, after the September 18, 1989, hearing and before the hearing officer's decision in the matter, the hearing officer received additional evidence in the form of the aforementioned note written by Dr. Cedarblade and an "excerpt" from a report prepared by Dr. Fredrick Boulware, dated December 12, 1989, which read as follows:
This 37 year-old lady was previously evaluated in January of this year because of complaints of headache and dizziness which had persisted since an automobile accident which occurred on July 20, 1987.
On November 30, 1989, based on the foregoing "medical investigation," which Bally's was ordered to complete, the hearing officer ruled that all of Ms. Reeves' "problems owe their etiology to a non industrial accident of July 20, 1987." Ms. Reeves filed an appeal from the hearing officer's decision, contending that she had asked for a hearing to review Bally's denial of her claim for failure to abide by formal filing requirements. Ms. Reeves complained that her claim was denied by the hearing officer on other, substantive grounds, namely, that the injuries upon which her claim was based owed their "etiology" to her non-industrial accident and were not, therefore, covered by Bally's insurance. On March 26, 1991, an appeals officer affirmed the hearing officer's decision. Thereafter, the district court granted Ms. Reeves' petition for judicial review.
We conclude that the district court properly granted Ms. Reeves' petition. Not only was Ms. Reeves "blind sided" by having the hearing officer base the decision on grounds that Ms. Reeves did not assert, it does not appear that the hearing officer considered Ms. Reeves' arguments or all of the pertinent medical data that was available at the time. The record before us, and especially the wording of Ms. Reeves' hand-written appeal referred to below, reveals that Ms. Reeves was not given an opportunity before the hearing officer to respond to whatever it might have been that inexplicably led the hearing officer to conclude that Ms. Reeves' physical "problems owe their etiology to a non-industrial accident of July 20, 1987." In other words, the hearing officer concluded that Ms. Reeves' September 25, 1988, industrial accident was not related to her present complaints. This is an extreme and untenable position, a position that is not supported by this record.
At the time of Ms. Reeves' hearing before the hearing officer it had been conceded, and is still conceded, that Ms. Reeves' injuries arose out of and in the scope of her employment. She had no reason to suspect when she filed her Request for Hearing that the hearing officer was going to launch an inquiry into causation or the so-called "etiology" issue, an issue
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