Gilman v. Clark Cty. Sch. Dist.

139 Nev., Advance Opinion

IN THE COURT OF APPEALS OF THE STATE OF NEVADA

BRETT GILMAN, No. 84703-COA
Appellant,
vs.
CLARK COUNTY SCHOOL DISTRICT;
AND SIERRA NEVADA
FIL
ADMINISTRATORS,
Respondents.

Appeal from a district court order denying a petition for judicial
review of an appeals officer's decision in a workers' compensation matter.
Eighth judicial District Court, Clark County; James M. Bixler, Senior Judge.
Reversed and remanded.

Berteldo Baker Carter Smith & Cullen and Javier A. Arguello, Las Vegas,
for Appellant.

Gilson Daub, LLP, and Matthew W. Smith and Jennifer Santana, Las Vegas,
for Respondents.

BEFORE THE COURT OF APPEALS, GIBBONS, C.J., and BULLA and
WESTBROOK, JJ.

OPINION

By the Court, BULLA, J.:
In this opinion, we consider the pUrpose and'application of NRS
61.-6C.065(7) in granting or denying the reopening of an industrial claim.
That subsection places the onus on the workers' compensation insurer to
expressly indicate acceptance or denial of 'coverage for a body part or
condi.tion, usually set forth in its notice of claim acceptance. In the absence
COURT OF APPEALS
OF
NEVADA

(0) 194713
of such indication, the statute provides that the insurer has neither accepted
nor denied coverage for that body part or condition. The legislative purpose
behind enacting this provision was to end the practice whereby an insurer
would accept an industrial claim but restrict its acceptance to a certain body
part or condition and then later use that restriction as a sword to deny
coverage for other injuries arising out of the same industrial accident.
In this case, the insurer's acceptance of coverage was restricted
to the claimant's cervical strain and thoracic sprain "only," but the insurer
did not expressly deny coverage for treatment to the claimant's lumber spine.
Therefore, the claimant was not required to appeal from either the
determination of claim acceptance or claim closure to preserve his right to
seek the reopening of his industrial claim under NRS 616C.390 for treatment
to his lumbar spine.
FACTS AND PROCEDURAL HISTORY
In 2019, appellant Brett Gilman, an English teacher with
respondent Clark County School District, sustained injuries while diverting
a student altercation. According to the information Gilman provided in his
Incident Report/Form C-1, "Student was fleeing Administration, [r]unning at
breakneck speed. I stopped the student, by the straps of the backpack. They
threw a trash can between us to avoid capture, causing me to slip [and] fall."
Gilman reported his injuries as being "multiple" but "unknown" at the time
he completed the incident report. Soon after, Gilman requested workers'
compensation from the school district's industrial insurer, respondent Sierra
Nevada Administrators (Sierra), for injuries related to his "neck" and "back."
Several days later, Gilman was evaluated at Concentra Medical Center,
which diagnosed cervical strain and thoracic sprain. Gilman's treatment
records from Concentra did not mention any injury to his lumbar spine.

COURT OF APPEALS
Gilman was advised to return to full work and activity and referred for
OF
NEVADA

(0) 194711
2
physical therapy. The physical therapy records support that Gilman
complained of "low back pain," and his rehabilitation goals were to decrease
neck and back pain.
Gilman's injuries reportedly continued to improve. Meanwhile,
Sierra advised Gilman in a notice of claim acceptance that it would be
accepting his industrial insurance claim for "Cervical Strain (Only) [and]
Thoracic Sprain (Only)." Sierra did not mention the lumbar spine in its claim
acceptance letter, and it did not issue either a written acceptance or a written
denial for treatment to the lumbar spine. Gilman did not appeal this
determination. A few months later, Sierra notified Gilman that all Workers'
compensation benefits had been paid and that his claim was being closed
without an award of permanent partial disability (PPD). Gilman did not
appeal this determination either, and his claim Was closed.
Almost immediately after the closure of his claim, Gilman began
experiencing significant low back or lumbar pain, for which he sought
treatment. X-rays of Gilman's spine revealed degenerative disc disease. In
early 2020, well within one year of the closure of his workers' compensation
claim, Gilman requested that his claim be reopened for further evaluation
and treatment of injuries to his lumbar spine.' Sierra denied Gilman's

'Although Gilman had initially also requested reopening of the claim
for treatment to his cervical, thoracic, and lumbar spine, he testified at the
hearing before the appeals officer that he was only seeking to reopen his
industrial claim to cover treatment to his lumbar spine and: not for any
further treatment related to the cervical and thoracic spine. However, on
appeal, Gilman appears to assert that he is moving to reopen the entirety of
his claim, contrary to both his testimony before the appeals officer and the
record. For purposes of this appeal, we focus on Gilman's request to reopen
his industrial claim as it relates to the lumbar spine. On remand, the appeals
officer should confirm the scope of the claim Gilman is seeking to reopen.
COURT OF APPEALS
OF
NEVADA

(0) 1947B <Diet.
3
request because the lumbar spine was not a body part covered by the initial
acceptance of his claim. Gilman timely appealed Sierra's decision to a
hearing officer.
Before a decision was rendered, an MRI revealed that Gilman
had 'advanced degenerative disease of the spine with lumbar disc herniations.
Dr. Firooz Mashood opined that the disc herniations were not present prior
to the industrial injury and recommended that, "given the worsening of
patient's- symptomatology, physical examination findings and MRI study
findings[,} ....his case be reopened for further diagnostic workup and
treatment not limited to repeat MRI study of the lumbar spine and/or referral
to a spine orthopedic surgeon." br. Daniel Lee, the orthopedic surgeon to
whom Gilman was referred, noted disc ,herniations at L4-5 and L5-S,1,,which
he classified as being slightly Worše, Presumedly in comparison to a PriOr
study not clearlY identified in the record.
The hearing-officer issued two orders affirming Sierra's decision
to deny Gilman's request to reopen hiS claim. The hearing officer's first
decision and order identified the issue as an appeal from a "denial of
treatment" and affirmed Sierra's d.enial of additional medical treatment
based on the claim being closed. The hearing officer's second decision and
order identified the issue as an appeal from a "de facto denial" and a request
for claim reopening% In this second decision, the hearing officer denied
reopening because "the [workers] compensation claim was accepted. for the
cervical strain and thoracic sprain only." After reviewing Dr. Mashood's
consultation report, the hearing- officer concluded that, -"[a]s-Dr. Mashood is
recommending reopenin.g for lumbar spine treatment that is 'not included in
the original claim, [Sierra's] de facto denial of the reopening request is proper

COURT OF APPEALS
OF
NEVADA

4
(0) I )4713
and is hereby AFFIRMED." Gilman timely administratively appealed the
hearing officer's decision.
While the matter was pending. Gilman continued to experience
low back pain and underwent selective nerve root blocks, which provided
some relief. Dr. Lee eventually diagnosed Gilman as having a lumbar disc
herniation with radiculopathy, noting that Gilman had "worsening foot drop
on the left [and] progressive weakness." Consequently, Dr. Lee performed a
posterior lumbar decompression and fusion surgery at L4-S1. Subsequently,
Dr. Mashood concluded that "Gilman's cervical, thoracic and lumbar have
worsened and the need of additional medical treatment, to a reasonable
degree of medical probability is priniarily related to the April 25, 2019
Industrial Injury."
The appeals officer issued a decision and order affirming Sierra's
denial of Gilman's request for additional medical treatment and his request
to reopen his claim. After noting that Sierra had "accepted the claim for the
following body parts: 'cervical strain only' and 'thoracic sprain only,' the
appeals officer found that Gilman's "lumbar spine was never accepted as part
of his industrial claim" and that he failed to appeal Sierra's claim closure
determination. In addition, the appeals officer found that Gilman did not
receive treatment to his lumbar spine until after his industrial claim was
closed and, therefore, equitable estoppel did not apply.2 In other words,

2 Gilman does not raise equitable estoppel as an issue on appeal.
Therefore, we need not address it further. See Powell v. Liberty Mut. Fire
Ins. Co., 127 Nev. 156, 161 n.3, 252 P.3d 668, 672 n.3 (2011) (providing that
issues not raised on appeal are deemed waived). Although Gilman's physical
therapy records are equivocal as to whether treatment was given for the
lower back or lumbar region, he testified at the hearing before the appeals
officer that he received treatment for low back pain before his claim was
closed.
COURT OF APPEALS
OF
NEVADA

(0) 1947B
5
because the insurer did not pay for treatment to the lumbar spine, it could
not be equitably estopped from denying coverage Under Dickinson v.
American Medical Response, 124 Nev. 460, 186 P.3d 878 (2008). The appeals
officer also found that Gilman failed to comply with the requirements of the
reopening statute, NRS 616C.390, explaining, "[Mere, Mr. Gilman does not
satisfy the statute because the himbar was never an accepted body part."
The appeals officer ultimately concluded that "[Mr. Gilman] has not met his
burden to justify reopeni.ng his claim:" SubsequentlY, the 'district court
denied Gilman's petition for judicial reView. This appeal followed.3
ANALYSIS
On appeal, Gilman argues that the appeals officer erred in
denying his motion to reopen his industrial claim. Primarily, Gilman
contends that the appeals officer improperly considered Sierra's acceptance
letter to be a "denial" of coverage for injuries to the lumbar spine that Gilman
was obligated to appeal Under NRS 616C.220.4 Building on this assertion,
he argues that his failure to appeal did not preclude the reopening of his
industrial claim. Gilman further argues that overwhelming evidence
supports reopening his industrial claim to include coverage for the low back
surgery performed by Dr. Lee pursuant to NRS 616C.390. Sierra, in turn,
argues that reopening the claim to include treatment to the lumbar spine

3 We hereinafter refer to respondents collectively as Sierra.
4Under NRS 616C.220(10), "[a]ny party aggrieved by a determination
to accept or • to- deny any claim" for industrial injury "may appeal that
determination, within 70 days after the • determination is rendered." The
parties agree that Gilman did not appeal after receiving either Sierra's
determination of claim acceptance or claim closure: The parties do, however,
dispute whether Gilman's failure to administratively appeal either
determination has any legal significance in resolving the issues before us.
COURT OF APPEALS

OF
NEVADA

(0) 194713
6
would have been improper because Gilman failed to appeal the "acceptance"
of his claim, which was limited to cervical strain and thoracic sprain only.
Sierra also argues that substantial evidence supports the appeals officer's
finding that Gilman failed to establish he was entitled to reopen his claim for
medical treatment to his lumbar spine. •
Generally, on appeal, the "standard for reviewing petitions for
judicial review of administrative decisions is the same for this court as it is
for the district court." City of Reno v. Bldg. & Constr. Trades Council of IV.
Neu., 127 Nev. 11.4, 119, 251 P.3d 718, 721 (2011) (internal citations omitted).
ThiS 'court reViews an administrative officer's construction of statutes de
novo. Holiday Ret, Corp. v. State, Div: of Indus. Relations, 128 Nev. 150, 153,
274 P.3d 759, 761 (2012). Further, We decide "pure legal questions without
deference to an agency determinatipn." City of Reno, 127 Nev. at 119, 251
P.3d at 721 (quoting Jones v. Rosner, 102 Nev 215, 217, 719 P.2d 805, 806
(1986)); see also Maxwell v. State Indus. Ins. Sys., 109 Nev. 327, 329, 849 P.2d
267, 269 (1993), ("The construction of a statute is a question of law, and
independent appellate review of an administrative ruling, rather than a niore
deferential standard of review, is appropriate.").
While we do not defer to administrative constructions of statutes,
"[wje review an administrative agency's factual findings for clear error or an
arbitrary abuse of discretion and will only overturn those findings if they are
not supported by substantial evidence." City of North Las Vegas v.
Warburton, 127 Nev. 682, 686, 262 P.3d 715, 718 (2011) (internal quotation
marks omitted). "Substantial evidence exists if a reasonable person Could
find the evidenCe adequate to support the agency's conclusion." Law Offices
of Barry Levinson, P.C. v..Milko, 124 Nev. 355, 362, 184 P.3d 378, 384 (2008).
This court will not "reweigh the evidence or revisit an appeals officer'S
COURT OF APPEALS
OF
NEVADA

(0) 19478
7
credibility determination." Id. at 362, 184 P.3d at 383-84. And we do not
make factual determinations in the first instance. See Ryan's Express
Transp. Servs., Inc. u. Amador Stage Lines, Inc., 128 Nev. 289, 299, 279 P.3d
166, 172 (2012) ("An appellate court is not particularly well-suited to rnake
factual determinations in the first instance.").
The pivotal issue in this appeal is whether the appeals officer
misapplied NRS 616C.065(7) to find that the lumbar spine was not within
the scope of Gilman's accepted industrial claim and thus erred in denying
Gilman's request to reopen his claim for treatment to his lumbar spine on
that basis. The appeals officer reasoned that Gihnan could not move to
reopen his claim for a body part that was never accepted as part of the
original claim, asking rhetorically, "How can one have a worsening body part
that was never part of the claimr
We review the construction of NRS 616C.065(7) de novo. See
Holiday Ret. Corp., 128 Nev. at 153, 274 P.3d at 761. When interpreting a
statute, "the proper place to begin is with the plain text of the relevant
statute[s], and if those words are unambiguous, that is where our analysis
ends as well." In re Execution of Search Warrants, 134 Nev. 799, 801, 435
P.3d 672, 675 (Ct. App. 2018). However, "when a statute is susceptible to
more than one reasonable interpretation, it is ambiguous, and this court
must resolve that ambiguity by looking to the statute's legislative history and
construing the statute in a manner• that conforms to reason and public
policy." Zohar v. Zbiegien. 130 Nev. 733, 737, 334 P.3d 402, 405 (2014)
(internal quotations omitted).
Here, the language of NRS 616C.065(7) clearly states that "Nile
failure of the insurer to indicate the acceptance or denial of a claim for a part
of the body or condition does not constitute a denial or acceptance thereof."
COURT OF APPEALS
OF
NEVADA

(()) 194711
8
(Emphasis added.) And the acceptance or denial must be in writing. See
NRS 616C.065(5) ("The insurer shall notify the claimant or the person acting
on behalf of the claimant that a claim has been accepted or denied pursuant
to subsection 1. or 2 [by mailing or sending] its written determination . . .").
The plain language of these subsections of the statute unambiguously places
the responsibility on Sierra to either accept or deny coverage of a specific
body part or condition in writing when determining coverage for an
industrial claim.
Further, this plain language interpretation is supported by the
purpose of permitting claims to be reopened pursuant to NRS 616C.390. We
have "a duty to construe statutes as a whole, so that all provisions are
considered together and, to the extent practicable, reconciled and
harmonized." Orion Portfolio Servs. 2, LLC v. County of Clark ex rel. Univ.
Med. Ctr. of S. Nev.. 126 Nev. 397, 403, 245 P.3d 527, 531 (2010). And we
"will not render any part of [a] statute meaningless, and will not read [a]
statute's language so as to produce absurd or unreasonable results." Id.
Failure to give effect to the plain language of NRS 616C.065(7) would
frustrate the purpose of NRS 616C.390, which permits the reopening of a
claim and expanding the scope of coverage where, for example, an injury to
a body part manifests after a claim has been closed but is medically related
to the original industrial accident.
In this case, Sierra's acceptance letter did not address coverage
for the low back or lumbar pain that Gilman reported experiencing. Instead,
Sierra's letter simply identified the "Body Part(s)/Injury Diagnosis" as
"Cervical Strain (Only), Thoracic Sprain (Only)." Based on the statute's plain
language, since Sierra neither accepted nor denied coverage for treatment to
the lumbar spine, the letter cannot be interpreted to either accept or deny

COURT OF APPEALS
OF
NEVADA

(0) I947B
9
coverage for future treatment related to the lumbar spine. Thus, under NRS
616C.065(7), the appeals officer's determination that Sierra's failure to
expressly accept coverage for treatment to the lumbar spine was an implicit
denial of coverage for that body part is incorrect.5 Specifically, the appeals
officer, without considering the plain language of the statute, appears to have
found an implicit denial of Coveragefor the lumbar spine based on the explicit
acceptance of coverage for other body parts. But the denial of coverage for
the body part at issue—the lumbar spine—must be explicitly indicated in
writing in keeping With the plain meaning of NRS 616C.065(7) and the
requirements of NRS 61.6C.065(5) addressed above. Thus, we are not
persuaded that the qualifier Of "only" aS related to the acceptance of the
injuries to the other two body parts, cervical strain and thoracic sprain,
supports the denial of coverage for the lumbar injury. By way of example, an
argument could be made that the qualifier of "only" listed after cervical strain
modifies the term strain, thereby limiting coverage to a cervical strain and
excluding other cervical conditions.
Further, without an expli.cit denial of coverage for treatment to
the lumbar spine, Gilman was not required to appeal within 70 days after
either receiving Sierra's determination of claim acceptance or claim closure.
See NRS 616C.220(10) (providing a right of appeal for "[a]ny ph:rty aggrieved

5To the extent Sierra relies. ofl NRS 616C.495 for the proposition that
"disputes concerning .the scope of. the claim do not survive claim closure,"
that statute is inapposite. Gilman did not dispute that his claim could be
closed without a PPD 'evaluation. And even if we looked to NRS 616C.495
for "guidance as to the issues of claim closure and the scope of the claim" as
suggested by Sierra, there was no "dispute" related to coverage for Gilman's
lumbar spine that existed prior to claim closure because Sierra never
expressly denied coverage for that claim in its claim acceptance letter. Cf.
NRS 616C.065(7).
COURT OF APPEALS
OF
NEVADA

(CI) 1947B
10
by a determination to accept or to deny any claim") and NRS 616C.315(3)
(providing a right of appeal from a deterrnination). In other words, since
Sierra had not yet denied coverage for treatment to Gilman's lumbar spine,
it would be illogical to require Gilman to appeal the lack of coverage for his
lumbar spine injury. Accordingly, the appeals officer's decision to deny the
reopening of Gilman's claim for failure to appeal Sierra's determination of
coverage disregarded the plain language of NRS 616C.065(7) and was in
error.
Even though it is unnecessary to consider the legislative history
because of the plain language of the statute, we note that the history clearly
supports that NRS 616C.065(7) was intended to permit the reopening of a
claim to obtain treatment of a body or condition which was nOt specifically
denied by the insurer.6 During a subcommittee meeting of the Assembly
Committee on Commerce and Labor, Robert Ostrovsky, representing
Employers Insurance Group, explained the key legislative history:
[the proposed amendment to S.B. 195(R1) adopting
provisions of A.B. 178] includes nine major areas of
consensus. The first area is the acceptance of a claim.
There was a dispute that the letters sent to
claimants, accepting a claim on a body part for
example, were then used as a method for denying
claims in the future—if the claimant had an arrn
injury and had to add a hip injury if both body parts
were injured during the same incident. There were
issues that the acceptance letter was being used as a
weapon to deny those claimants the right to expand

6We note that Gilman and Sierra dispute the timely disclosure of the
legislative history to the appeals officer. As we review the interpretation of
a statute de novo, we may consider the legislative history. See Zohar, 130
Nev. at 737, 334 P.3d at 405. We also note that Gilman brought the
legislative history to the attention of the appeals officer on reconsideration
and provided that same authority to the district court as well.
COURT OF APPEALS
OF
NEVADA

ICI) (947B •A;=,
11
their claim. To solve that problem, we added
language that would clearly indicate that the letter
of acceptance is not an exclusion, and not an
automatic deniai for other body parts. It does not
mean that they will automatically be accepted, but it
does mean you will get the opportunity to litigate
those rnatters before an appropriate appeals or
hearing officer, and/or discuss them with the parties.
Hearing on S.B. 195, Before the Assemb. Comm. on Commerce and Labor,
•75th Leg., at 3 (Nev., May 13, 2009). Both the plain language of NRS

616C.065(7) and the statute's legislative history support our conclusion that
Sierra's failure to expressly. accept coverage for treatment to the lumbar
spine cannot be interpreted as a denial of coverage. Therefore, Gilman's
failure to appeal after receiving either Sierra's determination of claim
acceptance or claim closure did not preclude him from subsequently seeking
to reopen his claim under NRS 616C.390.
While the parties also dispute whether substantial evidence
supported the appeals officer's decision that Gilman failed to establish that
he was entitled to reopen his claim under NRS 616C.390 to seek medical
treatment for his lumbar spine, this issue does not provide a basis to affirm
the challenged decision. The appeals officer concluded that Gilman did not
satisfy the reopening statute, NRS 616C.390, for a single reason: "because
the lumbar was never an accepted body part." But as set forth above, the
appeals officer erred in reaching this decision because Sierra did not
explicitly deny coverage for injuries to the lumbar spine and, in any event,
the appeal officer's one-line conclusionary statement cannot be considered
substantial evidence supporting the denial of Gilman's request to reopen his
industrial claim.

COURT OF APPEALS
OF
NEVADA

1.2
101 I'14711
CONCLUSION

Because the appeals officer erred in denying Gilinan's request to

reopen his industrial claim by misapplying NRS 616C.065(7) and without
properly considering whether he satisfied the requirements of NRS
616C.390, we reverse and remand the matter to the district court with
instructions to remand the matter to the appeals officer for further
proceedings consistent with this opinion.

Bulla

We concur:

, C.j.

J.
Westbrook

COURT OF APPEALS
OF
NEVADA

13
(0) I94713

139 Nev., Advance Opinion

IN THE COURT OF APPEALS OF THE STATE OF NEVADA

BRETT GILMAN, No. 84703-COA
Appellant,
vs.
CLARK COUNTY SCHOOL DISTRICT;
AND SIERRA NEVADA
FIL
ADMINISTRATORS,
Respondents.

Appeal from a district court order denying a petition for judicial
review of an appeals officer's decision in a workers' compensation matter.
Eighth judicial District Court, Clark County; James M. Bixler, Senior Judge.
Reversed and remanded.

Berteldo Baker Carter Smith & Cullen and Javier A. Arguello, Las Vegas,
for Appellant.

Gilson Daub, LLP, and Matthew W. Smith and Jennifer Santana, Las Vegas,
for Respondents.

BEFORE THE COURT OF APPEALS, GIBBONS, C.J., and BULLA and
WESTBROOK, JJ.

OPINION

By the Court, BULLA, J.:
In this opinion, we consider the pUrpose and'application of NRS
61.-6C.065(7) in granting or denying the reopening of an industrial claim.
That subsection places the onus on the workers' compensation insurer to
expressly indicate acceptance or denial of 'coverage for a body part or
condi.tion, usually set forth in its notice of claim acceptance. In the absence
COURT OF APPEALS
OF
NEVADA

(0) 194713
of such indication, the statute provides that the insurer has neither accepted
nor denied coverage for that body part or condition. The legislative purpose
behind enacting this provision was to end the practice whereby an insurer
would accept an industrial claim but restrict its acceptance to a certain body
part or condition and then later use that restriction as a sword to deny
coverage for other injuries arising out of the same industrial accident.
In this case, the insurer's acceptance of coverage was restricted
to the claimant's cervical strain and thoracic sprain "only," but the insurer
did not expressly deny coverage for treatment to the claimant's lumber spine.
Therefore, the claimant was not required to appeal from either the
determination of claim acceptance or claim closure to preserve his right to
seek the reopening of his industrial claim under NRS 616C.390 for treatment
to his lumbar spine.
FACTS AND PROCEDURAL HISTORY
In 2019, appellant Brett Gilman, an English teacher with
respondent Clark County School District, sustained injuries while diverting
a student altercation. According to the information Gilman provided in his
Incident Report/Form C-1, "Student was fleeing Administration, [r]unning at
breakneck speed. I stopped the student, by the straps of the backpack. They
threw a trash can between us to avoid capture, causing me to slip [and] fall."
Gilman reported his injuries as being "multiple" but "unknown" at the time
he completed the incident report. Soon after, Gilman requested workers'
compensation from the school district's industrial insurer, respondent Sierra
Nevada Administrators (Sierra), for injuries related to his "neck" and "back."
Several days later, Gilman was evaluated at Concentra Medical Center,
which diagnosed cervical strain and thoracic sprain. Gilman's treatment
records from Concentra did not mention any injury to his lumbar spine.

COURT OF APPEALS
Gilman was advised to return to full work and activity and referred for
OF
NEVADA

(0) 194711
2
physical therapy. The physical therapy records support that Gilman
complained of "low back pain," and his rehabilitation goals were to decrease
neck and back pain.
Gilman's injuries reportedly continued to improve. Meanwhile,
Sierra advised Gilman in a notice of claim acceptance that it would be
accepting his industrial insurance claim for "Cervical Strain (Only) [and]
Thoracic Sprain (Only)." Sierra did not mention the lumbar spine in its claim
acceptance letter, and it did not issue either a written acceptance or a written
denial for treatment to the lumbar spine. Gilman did not appeal this
determination. A few months later, Sierra notified Gilman that all Workers'
compensation benefits had been paid and that his claim was being closed
without an award of permanent partial disability (PPD). Gilman did not
appeal this determination either, and his claim Was closed.
Almost immediately after the closure of his claim, Gilman began
experiencing significant low back or lumbar pain, for which he sought
treatment. X-rays of Gilman's spine revealed degenerative disc disease. In
early 2020, well within one year of the closure of his workers' compensation
claim, Gilman requested that his claim be reopened for further evaluation
and treatment of injuries to his lumbar spine.' Sierra denied Gilman's

'Although Gilman had initially also requested reopening of the claim
for treatment to his cervical, thoracic, and lumbar spine, he testified at the
hearing before the appeals officer that he was only seeking to reopen his
industrial claim to cover treatment to his lumbar spine and: not for any
further treatment related to the cervical and thoracic spine. However, on
appeal, Gilman appears to assert that he is moving to reopen the entirety of
his claim, contrary to both his testimony before the appeals officer and the
record. For purposes of this appeal, we focus on Gilman's request to reopen
his industrial claim as it relates to the lumbar spine. On remand, the appeals
officer should confirm the scope of the claim Gilman is seeking to reopen.
COURT OF APPEALS
OF
NEVADA

(0) 1947B <Diet.
3
request because the lumbar spine was not a body part covered by the initial
acceptance of his claim. Gilman timely appealed Sierra's decision to a
hearing officer.
Before a decision was rendered, an MRI revealed that Gilman
had 'advanced degenerative disease of the spine with lumbar disc herniations.
Dr. Firooz Mashood opined that the disc herniations were not present prior
to the industrial injury and recommended that, "given the worsening of
patient's- symptomatology, physical examination findings and MRI study
findings[,} ....his case be reopened for further diagnostic workup and
treatment not limited to repeat MRI study of the lumbar spine and/or referral
to a spine orthopedic surgeon." br. Daniel Lee, the orthopedic surgeon to
whom Gilman was referred, noted disc ,herniations at L4-5 and L5-S,1,,which
he classified as being slightly Worše, Presumedly in comparison to a PriOr
study not clearlY identified in the record.
The hearing-officer issued two orders affirming Sierra's decision
to deny Gilman's request to reopen hiS claim. The hearing officer's first
decision and order identified the issue as an appeal from a "denial of
treatment" and affirmed Sierra's d.enial of additional medical treatment
based on the claim being closed. The hearing officer's second decision and
order identified the issue as an appeal from a "de facto denial" and a request
for claim reopening% In this second decision, the hearing officer denied
reopening because "the [workers] compensation claim was accepted. for the
cervical strain and thoracic sprain only." After reviewing Dr. Mashood's
consultation report, the hearing- officer concluded that, -"[a]s-Dr. Mashood is
recommending reopenin.g for lumbar spine treatment that is 'not included in
the original claim, [Sierra's] de facto denial of the reopening request is proper

COURT OF APPEALS
OF
NEVADA

4
(0) I )4713
and is hereby AFFIRMED." Gilman timely administratively appealed the
hearing officer's decision.
While the matter was pending. Gilman continued to experience
low back pain and underwent selective nerve root blocks, which provided
some relief. Dr. Lee eventually diagnosed Gilman as having a lumbar disc
herniation with radiculopathy, noting that Gilman had "worsening foot drop
on the left [and] progressive weakness." Consequently, Dr. Lee performed a
posterior lumbar decompression and fusion surgery at L4-S1. Subsequently,
Dr. Mashood concluded that "Gilman's cervical, thoracic and lumbar have
worsened and the need of additional medical treatment, to a reasonable
degree of medical probability is priniarily related to the April 25, 2019
Industrial Injury."
The appeals officer issued a decision and order affirming Sierra's
denial of Gilman's request for additional medical treatment and his request
to reopen his claim. After noting that Sierra had "accepted the claim for the
following body parts: 'cervical strain only' and 'thoracic sprain only,' the
appeals officer found that Gilman's "lumbar spine was never accepted as part
of his industrial claim" and that he failed to appeal Sierra's claim closure
determination. In addition, the appeals officer found that Gilman did not
receive treatment to his lumbar spine until after his industrial claim was
closed and, therefore, equitable estoppel did not apply.2 In other words,

2 Gilman does not raise equitable estoppel as an issue on appeal.
Therefore, we need not address it further. See Powell v. Liberty Mut. Fire
Ins. Co., 127 Nev. 156, 161 n.3, 252 P.3d 668, 672 n.3 (2011) (providing that
issues not raised on appeal are deemed waived). Although Gilman's physical
therapy records are equivocal as to whether treatment was given for the
lower back or lumbar region, he testified at the hearing before the appeals
officer that he received treatment for low back pain before his claim was
closed.
COURT OF APPEALS
OF
NEVADA

(0) 1947B
5
because the insurer did not pay for treatment to the lumbar spine, it could
not be equitably estopped from denying coverage Under Dickinson v.
American Medical Response, 124 Nev. 460, 186 P.3d 878 (2008). The appeals
officer also found that Gilman failed to comply with the requirements of the
reopening statute, NRS 616C.390, explaining, "[Mere, Mr. Gilman does not
satisfy the statute because the himbar was never an accepted body part."
The appeals officer ultimately concluded that "[Mr. Gilman] has not met his
burden to justify reopeni.ng his claim:" SubsequentlY, the 'district court
denied Gilman's petition for judicial reView. This appeal followed.3
ANALYSIS
On appeal, Gilman argues that the appeals officer erred in
denying his motion to reopen his industrial claim. Primarily, Gilman
contends that the appeals officer improperly considered Sierra's acceptance
letter to be a "denial" of coverage for injuries to the lumbar spine that Gilman
was obligated to appeal Under NRS 616C.220.4 Building on this assertion,
he argues that his failure to appeal did not preclude the reopening of his
industrial claim. Gilman further argues that overwhelming evidence
supports reopening his industrial claim to include coverage for the low back
surgery performed by Dr. Lee pursuant to NRS 616C.390. Sierra, in turn,
argues that reopening the claim to include treatment to the lumbar spine

3 We hereinafter refer to respondents collectively as Sierra.
4Under NRS 616C.220(10), "[a]ny party aggrieved by a determination
to accept or • to- deny any claim" for industrial injury "may appeal that
determination, within 70 days after the • determination is rendered." The
parties agree that Gilman did not appeal after receiving either Sierra's
determination of claim acceptance or claim closure: The parties do, however,
dispute whether Gilman's failure to administratively appeal either
determination has any legal significance in resolving the issues before us.
COURT OF APPEALS

OF
NEVADA

(0) 194713
6
would have been improper because Gilman failed to appeal the "acceptance"
of his claim, which was limited to cervical strain and thoracic sprain only.
Sierra also argues that substantial evidence supports the appeals officer's
finding that Gilman failed to establish he was entitled to reopen his claim for
medical treatment to his lumbar spine. •
Generally, on appeal, the "standard for reviewing petitions for
judicial review of administrative decisions is the same for this court as it is
for the district court." City of Reno v. Bldg. & Constr. Trades Council of IV.
Neu., 127 Nev. 11.4, 119, 251 P.3d 718, 721 (2011) (internal citations omitted).
ThiS 'court reViews an administrative officer's construction of statutes de
novo. Holiday Ret, Corp. v. State, Div: of Indus. Relations, 128 Nev. 150, 153,
274 P.3d 759, 761 (2012). Further, We decide "pure legal questions without
deference to an agency determinatipn." City of Reno, 127 Nev. at 119, 251
P.3d at 721 (quoting Jones v. Rosner, 102 Nev 215, 217, 719 P.2d 805, 806
(1986)); see also Maxwell v. State Indus. Ins. Sys., 109 Nev. 327, 329, 849 P.2d
267, 269 (1993), ("The construction of a statute is a question of law, and
independent appellate review of an administrative ruling, rather than a niore
deferential standard of review, is appropriate.").
While we do not defer to administrative constructions of statutes,
"[wje review an administrative agency's factual findings for clear error or an
arbitrary abuse of discretion and will only overturn those findings if they are
not supported by substantial evidence." City of North Las Vegas v.
Warburton, 127 Nev. 682, 686, 262 P.3d 715, 718 (2011) (internal quotation
marks omitted). "Substantial evidence exists if a reasonable person Could
find the evidenCe adequate to support the agency's conclusion." Law Offices
of Barry Levinson, P.C. v..Milko, 124 Nev. 355, 362, 184 P.3d 378, 384 (2008).
This court will not "reweigh the evidence or revisit an appeals officer'S
COURT OF APPEALS
OF
NEVADA

(0) 19478
7
credibility determination." Id. at 362, 184 P.3d at 383-84. And we do not
make factual determinations in the first instance. See Ryan's Express
Transp. Servs., Inc. u. Amador Stage Lines, Inc., 128 Nev. 289, 299, 279 P.3d
166, 172 (2012) ("An appellate court is not particularly well-suited to rnake
factual determinations in the first instance.").
The pivotal issue in this appeal is whether the appeals officer
misapplied NRS 616C.065(7) to find that the lumbar spine was not within
the scope of Gilman's accepted industrial claim and thus erred in denying
Gilman's request to reopen his claim for treatment to his lumbar spine on
that basis. The appeals officer reasoned that Gihnan could not move to
reopen his claim for a body part that was never accepted as part of the
original claim, asking rhetorically, "How can one have a worsening body part
that was never part of the claimr
We review the construction of NRS 616C.065(7) de novo. See
Holiday Ret. Corp., 128 Nev. at 153, 274 P.3d at 761. When interpreting a
statute, "the proper place to begin is with the plain text of the relevant
statute[s], and if those words are unambiguous, that is where our analysis
ends as well." In re Execution of Search Warrants, 134 Nev. 799, 801, 435
P.3d 672, 675 (Ct. App. 2018). However, "when a statute is susceptible to
more than one reasonable interpretation, it is ambiguous, and this court
must resolve that ambiguity by looking to the statute's legislative history and
construing the statute in a manner• that conforms to reason and public
policy." Zohar v. Zbiegien. 130 Nev. 733, 737, 334 P.3d 402, 405 (2014)
(internal quotations omitted).
Here, the language of NRS 616C.065(7) clearly states that "Nile
failure of the insurer to indicate the acceptance or denial of a claim for a part
of the body or condition does not constitute a denial or acceptance thereof."
COURT OF APPEALS
OF
NEVADA

(()) 194711
8
(Emphasis added.) And the acceptance or denial must be in writing. See
NRS 616C.065(5) ("The insurer shall notify the claimant or the person acting
on behalf of the claimant that a claim has been accepted or denied pursuant
to subsection 1. or 2 [by mailing or sending] its written determination . . .").
The plain language of these subsections of the statute unambiguously places
the responsibility on Sierra to either accept or deny coverage of a specific
body part or condition in writing when determining coverage for an
industrial claim.
Further, this plain language interpretation is supported by the
purpose of permitting claims to be reopened pursuant to NRS 616C.390. We
have "a duty to construe statutes as a whole, so that all provisions are
considered together and, to the extent practicable, reconciled and
harmonized." Orion Portfolio Servs. 2, LLC v. County of Clark ex rel. Univ.
Med. Ctr. of S. Nev.. 126 Nev. 397, 403, 245 P.3d 527, 531 (2010). And we
"will not render any part of [a] statute meaningless, and will not read [a]
statute's language so as to produce absurd or unreasonable results." Id.
Failure to give effect to the plain language of NRS 616C.065(7) would
frustrate the purpose of NRS 616C.390, which permits the reopening of a
claim and expanding the scope of coverage where, for example, an injury to
a body part manifests after a claim has been closed but is medically related
to the original industrial accident.
In this case, Sierra's acceptance letter did not address coverage
for the low back or lumbar pain that Gilman reported experiencing. Instead,
Sierra's letter simply identified the "Body Part(s)/Injury Diagnosis" as
"Cervical Strain (Only), Thoracic Sprain (Only)." Based on the statute's plain
language, since Sierra neither accepted nor denied coverage for treatment to
the lumbar spine, the letter cannot be interpreted to either accept or deny

COURT OF APPEALS
OF
NEVADA

(0) I947B
9
coverage for future treatment related to the lumbar spine. Thus, under NRS
616C.065(7), the appeals officer's determination that Sierra's failure to
expressly accept coverage for treatment to the lumbar spine was an implicit
denial of coverage for that body part is incorrect.5 Specifically, the appeals
officer, without considering the plain language of the statute, appears to have
found an implicit denial of Coveragefor the lumbar spine based on the explicit
acceptance of coverage for other body parts. But the denial of coverage for
the body part at issue—the lumbar spine—must be explicitly indicated in
writing in keeping With the plain meaning of NRS 616C.065(7) and the
requirements of NRS 61.6C.065(5) addressed above. Thus, we are not
persuaded that the qualifier Of "only" aS related to the acceptance of the
injuries to the other two body parts, cervical strain and thoracic sprain,
supports the denial of coverage for the lumbar injury. By way of example, an
argument could be made that the qualifier of "only" listed after cervical strain
modifies the term strain, thereby limiting coverage to a cervical strain and
excluding other cervical conditions.
Further, without an expli.cit denial of coverage for treatment to
the lumbar spine, Gilman was not required to appeal within 70 days after
either receiving Sierra's determination of claim acceptance or claim closure.
See NRS 616C.220(10) (providing a right of appeal for "[a]ny ph:rty aggrieved

5To the extent Sierra relies. ofl NRS 616C.495 for the proposition that
"disputes concerning .the scope of. the claim do not survive claim closure,"
that statute is inapposite. Gilman did not dispute that his claim could be
closed without a PPD 'evaluation. And even if we looked to NRS 616C.495
for "guidance as to the issues of claim closure and the scope of the claim" as
suggested by Sierra, there was no "dispute" related to coverage for Gilman's
lumbar spine that existed prior to claim closure because Sierra never
expressly denied coverage for that claim in its claim acceptance letter. Cf.
NRS 616C.065(7).
COURT OF APPEALS
OF
NEVADA

(CI) 1947B
10
by a determination to accept or to deny any claim") and NRS 616C.315(3)
(providing a right of appeal from a deterrnination). In other words, since
Sierra had not yet denied coverage for treatment to Gilman's lumbar spine,
it would be illogical to require Gilman to appeal the lack of coverage for his
lumbar spine injury. Accordingly, the appeals officer's decision to deny the
reopening of Gilman's claim for failure to appeal Sierra's determination of
coverage disregarded the plain language of NRS 616C.065(7) and was in
error.
Even though it is unnecessary to consider the legislative history
because of the plain language of the statute, we note that the history clearly
supports that NRS 616C.065(7) was intended to permit the reopening of a
claim to obtain treatment of a body or condition which was nOt specifically
denied by the insurer.6 During a subcommittee meeting of the Assembly
Committee on Commerce and Labor, Robert Ostrovsky, representing
Employers Insurance Group, explained the key legislative history:
[the proposed amendment to S.B. 195(R1) adopting
provisions of A.B. 178] includes nine major areas of
consensus. The first area is the acceptance of a claim.
There was a dispute that the letters sent to
claimants, accepting a claim on a body part for
example, were then used as a method for denying
claims in the future—if the claimant had an arrn
injury and had to add a hip injury if both body parts
were injured during the same incident. There were
issues that the acceptance letter was being used as a
weapon to deny those claimants the right to expand

6We note that Gilman and Sierra dispute the timely disclosure of the
legislative history to the appeals officer. As we review the interpretation of
a statute de novo, we may consider the legislative history. See Zohar, 130
Nev. at 737, 334 P.3d at 405. We also note that Gilman brought the
legislative history to the attention of the appeals officer on reconsideration
and provided that same authority to the district court as well.
COURT OF APPEALS
OF
NEVADA

ICI) (947B •A;=,
11
their claim. To solve that problem, we added
language that would clearly indicate that the letter
of acceptance is not an exclusion, and not an
automatic deniai for other body parts. It does not
mean that they will automatically be accepted, but it
does mean you will get the opportunity to litigate
those rnatters before an appropriate appeals or
hearing officer, and/or discuss them with the parties.
Hearing on S.B. 195, Before the Assemb. Comm. on Commerce and Labor,
•75th Leg., at 3 (Nev., May 13, 2009). Both the plain language of NRS

616C.065(7) and the statute's legislative history support our conclusion that
Sierra's failure to expressly. accept coverage for treatment to the lumbar
spine cannot be interpreted as a denial of coverage. Therefore, Gilman's
failure to appeal after receiving either Sierra's determination of claim
acceptance or claim closure did not preclude him from subsequently seeking
to reopen his claim under NRS 616C.390.
While the parties also dispute whether substantial evidence
supported the appeals officer's decision that Gilman failed to establish that
he was entitled to reopen his claim under NRS 616C.390 to seek medical
treatment for his lumbar spine, this issue does not provide a basis to affirm
the challenged decision. The appeals officer concluded that Gilman did not
satisfy the reopening statute, NRS 616C.390, for a single reason: "because
the lumbar was never an accepted body part." But as set forth above, the
appeals officer erred in reaching this decision because Sierra did not
explicitly deny coverage for injuries to the lumbar spine and, in any event,
the appeal officer's one-line conclusionary statement cannot be considered
substantial evidence supporting the denial of Gilman's request to reopen his
industrial claim.

COURT OF APPEALS
OF
NEVADA

1.2
101 I'14711
CONCLUSION

Because the appeals officer erred in denying Gilinan's request to

reopen his industrial claim by misapplying NRS 616C.065(7) and without
properly considering whether he satisfied the requirements of NRS
616C.390, we reverse and remand the matter to the district court with
instructions to remand the matter to the appeals officer for further
proceedings consistent with this opinion.

Bulla

We concur:

, C.j.

J.
Westbrook

COURT OF APPEALS
OF
NEVADA

13
(0) I94713