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Bally's Grand Hotel & Casino v. Reeves11/26/1997
that was conjured by the hearing officer herself. In her appeal, Ms. Reeves makes it clear that she was very much aware of and troubled by the unfairness and confusion inherent in the hearing officer's changing the hearing from a review of the question of whether she was entitled to pursue her claim despite her failure to make a timely written claim into a "medical investigation" that would ultimately result in a denial of her claim on its merits.
In her handwritten appeal document, Ms. Reeves writes that the "reason" for her appeal was that the hearing officer had "withdrawn" Ms. Reeves' stated ground for review (which was, of course, that she had an excuse for noncompliance with formal notice requirements) and had substituted a totally new issue, the "etiology" issue. Ms. Reeves complained in her appeal document that if she was going to be
denied on other grounds [that is, the "etiology" grounds] I should have had due time for all of my evidence. The SIS did not send me to any medical doctors for determination and only pick and chose lines on certain papers of my doctors, which I supplied. Long before the hearing date I have evidence of my greatly improved condition that I was unable to bring up due to it was not on my hearing denial of 9/18/89.
The grounds for Ms. Reeves' appeal, then, are: (1) that her failure to file timely written notice was improperly and sua sponte "withdrawn" by the hearing officer, presenting her with an entirely new, uncharged basis for denial of her claim on its merits; (2) that she was not given an adequate opportunity to present evidence in opposition to the newly-framed medical issues before the hearing officer; and (3) that the hearing officer engaged in a biased and unfair selection of medical data, relying on the insurer's "medical advisor" and an isolated, virtually meaningless "excerpt" from a report of another physician.
Although we approve of the district court's remand of this matter to Bally's administrator, we perceive that all of Ms. Reeves' grounds for appeal have substance. Giving credence to Ms. Reeves' contentions (aside from the bias inherent in the hearing officer's having put such great stock in the report of Bally's medical advisor) is the fact that neither Dr. Cedarblade nor Dr. Boulware provided the hearing officer with an acceptable basis for denying Ms. Reeves' industrial accident claim. Dr. Cedarblade correctly reported that Ms. Reeves had been treated for "dizziness, and headaches and postural problems stemming from a previous accident." Dr. Cedarblade noted that Ms. Reeves continued to suffer from the mentioned types of problems; but Dr. Cedarblade did not contend that Ms. Reeves did not suffer any additional or aggravating injuries as a result of the later, industrial accident. Dr. Boulware wrote nothing of import regarding whether Ms. Reeves suffered a compensable injury in her second accident. Dr. Boulware referred only to Ms. Reeves' "headache" and "dizziness," and merely stated that these symptoms "had persisted" since the former accident. Again, Dr. Boulware did not state that Ms. Reeves suffered no additional or aggravating injuries in the second accident or that the entire "etiology" of Ms. Reeves' complaints was the non-industrial accident.
The November 30, 1989, decision of the hearing officer does not mention another significant medical record that was available at that time, namely, Dr. Toeller's "independent medical exam." In this independent examination, Dr. Toeller diagnoses Ms. Reeves' injuries relative to the stated "date of loss: 9/25/85" (the industrial accident), as being "cervical sprain/strain syndrome" and rules out "second injury syndrome." In the presence of an independent
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