The most important hearing on a contested workers’ compensation case in Nevada is the one before the the appeals officer, because that hearing is recorded, it is the last avenue for presenting witnesses or documentary evidence on the contested issue, and the appeals officer’s decision is difficult to attack. However, any of the parties who lose at the appeals officer level, has the right to file an appeal to a district court judge, and that appeal is called a Petition for Judicial Review.
A Petition for Judicial Review must be filed with the district court within 3o days of the date the appeals officer’s decision is signed and date stamped, with 3 additional days to allow for the mailing of the appeals officer’s decision. A late filed Petition cannot be excused by the district court. You must name the Department of Administration as a respondent along with the opposing insurer, or the third-party administrator, and/or the employer.
If you were represented at the appeals officer hearing by an NAIW attorney or by a private attorney, and you lost, your attorney may have told you that they will not be filing a Petition for Judicial Review because your chances of having a district court judge reverse the appeals officer are slim to none. Before you conclude that your attorney is lazy and just doesn’t want to put more effort into your case, consider why it is so difficult to win a Petition for Judicial Review.
The Administrative Procedures Act, NRS 233B, has the rules the district court judge must follow when reviewing an appeals officer’s decision. The most important rule is that the district court may not second-guess the appeals officer’s findings as to whether the injured worker or some other testifying witness was believable. Secondly, if there is substantial evidence in the record to support the appeals officer’s decision, the district court will affirm the decision even if the district court would have reached a different result. The district court is required by law to defer to the appeals officer, unless the appeals officer’s decision involves a purely legal issue.
Most appeals officers’ decisions involve factual issues.
- Whether the injured worker was in fact hurt at work when he shows up for work on Monday, or claiming that he was injured on the prior Friday and didn’t report it to anyone, is a factual question.
- Whether an injured worker has shown that he has a worsened industrial injury and needs more medical care for reopening purposes rests on factual findings.
- Whether an injured worker should have a herniated disc included in his claim for a lumbar strain pertains to factual, medical findings.
If, however, the contested issue decided by the appeals officer involved only an interpretation of a particular Nevada workers’ compensation law, the district court is not bound by the appeals officer’s interpretation of the law. Again, most appeals officer’s decision rest on findings of fact, and it will be very difficult to convince the district court that the appeals officer’s decision was arbitrary and not supported by substantial evidence in the record.
Once the Petition is filed with the court, the opposing parties (usually the workers’ compensation third-party administrator or a self-insured employer) files a responsive pleading letting the court know that they intend to participate and that they oppose the Petition. The Dept. of Administration, Appeals Division, then has the responsibility for sending the Record on Appeal to the district court. A transcript of the actual hearing that took place before the appeals officer is not included unless you request and pay for the transcript with the outside court reporter service who transcribes it.
Once the Record on Appeal is filed with the district court, the petitioner has 40 days to file an opening brief. All references to the evidence must have the correct Record on Appeal document and page number. That means you must renumber all of the exhibits so that they match the Record on Appeal. The opposing parties then have 30 days to file their answering briefs, and the petitioner has 30 days to file a reply brief.
Once all briefs are filed, any party can ask for a date for oral argument by the attorneys before the judge. Some judges will not schedule oral argument, and decide the petition solely on the briefs filed. Any party who loses at the district court level may file a further appeal to the Nevada Supreme Court within 30 days of the Notice of Entry of Judgment of the district court’s decision on the Petition.