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Pino v. State2/17/2000
earing examiner should have invoked and applied the rule relied upon in the cited cases. Under the circumstances, the failure to do so constitutes a decision Anot in accordance with law.@
The case could be resolved by reversing the Order Denying Benefits and remanding it to the hearing examiner to consider the evidence in the light of the second subsequent injury rule. In this instance, however, the only medical testimony in the context of reasonable medical probability was to the effect that because Pino was asymptomatic prior to the 1995 injury, he did not have any prior weakness like a bulge in a disc in his back and that the bulge was the product of the 1995 injury. Since the medical testimony also ties the second injury to the 1995 accident by a reasonable medical probability, there is nothing in the record that would justify a different finding by the hearing examiner than those already made with respect to the testimony establishing the relationship between the 1995 injury and the 1997 surgery. Consequently, we reverse the Order Denying Benefits and the case is remanded to the Office of Administrative Hearings for the sole purpose of determining the appropriate amount of worker=s compensation benefits that should be awarded to Pino.
Reversed and remanded to the Office of Administrative Hearings.
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