D.C. Hca v. Labor Comm'n

• Decision Date: 30 June 2011
• Docket Number: No. 20100788–CA.,20100788–CA.
• Citation: 2011 UT App 210,685 Utah Adv. Rep. 55,258 P.3d 640
• Parties: COLUMBIA HCA and Zurich American Insurance Co., Petitioners,v.LABOR COMMISSION and Stewart Seely, Respondents.
• Court: Utah Court of Appeals

258 P.3d 640

685 Utah Adv. Rep. 55

2011 UT App 210

COLUMBIA HCA and Zurich American Insurance Co., Petitioners,

v.LABOR COMMISSION and Stewart Seely, Respondents.

No. 20100788–CA.

Court of Appeals of Utah.

June 30, 2011.

Brad J. Miller, Greenwood Village, Colorado, for Petitioners.Sandra N. Dredge, Provo, for Respondent Seely.Before Judges DAVIS, VOROS, and CHRISTIANSEN.

MEMORANDUM DECISION

DAVIS, Presiding Judge:

¶ 1 Columbia HCA and its insurance carrier, Zurich American Insurance Co., (collectively, Columbia) appeal a final order of the Utah Labor Commission (the Commission), challenging the evidentiary basis and legal sufficiency of the Commission's decision to award Stewart Seely permanent total disability benefits. We affirm.

¶ 2 In November 2005, Seely filed an Application for Hearing with the Commission requesting that he be awarded permanent total disability benefits after sustaining two major, degenerative back injuries in the course of his employment with Columbia as a radiology technician.¹ Seely had been an employee of Columbia since 1988 and had worked as a radiology technician since 1972. At the time of filing, Seely was fifty-seven years old and had been collecting unemployment benefits since losing his job with Columbia in May 2003. The Administrative Law Judge (ALJ) conducted a formal hearing on the matter and issued Findings of Fact and Conclusions of Law. In her findings, the ALJ walked through the ten-year chronology of Seely's back problems, listing the major surgeries and procedures conducted as well as ten physicians' prognoses and recommended work restrictions before and after each procedure. In doing so, the ALJ highlighted the general roller-coaster-like progression of Seely's injuries, describing him as having “good days and bad days.” She found that Seely's “activities of daily living were significantly hindered by his back condition” because he “walks slowly and hesitantly [,] ... can sit/stand for 30 minutes at a time,” and can lift a maximum of only thirty-five pounds. Upon these facts, the ALJ concluded that Seely's “back injuries prevent him from performing the essential function of lifting required of a radiology technician” and subsequently “entered a preliminary finding of permanent total disability, subject to Columbia's right to submit a [reemployment] plan.” See generally Utah Code Ann. § 34A–2–413(5) (Supp.2010) (outlining the employer's right to submit a reemployment plan before an award of permanent total disability benefits is considered final).

¶ 3 Columbia submitted a reemployment plan aimed at returning Seely to work as a radiology technician subject to a ten-pound lifting restriction. An additional hearing was held to consider the plan. Columbia's vocational consultant, who prepared the reemployment plan, and Seely testified at this hearing. Seely testified extensively as to the daily lifting, twisting, pushing, and pulling requirements of his former radiology position and explained that finding another job in his field that could accommodate a ten-pound lifting restriction would be extremely difficult when the lead aprons alone may weigh over ten pounds.² Seely also testified that his radiology license had lapsed since the previous hearing. The vocational consultant agreed that most radiology jobs require an employee to regularly lift twenty pounds but stated that he had not called any potential employers to determine if a ten-pound lifting restriction could be accommodated. Neither Columbia nor the vocational consultant contacted Seely while drafting the reemployment plan. Additionally, the vocational consultant was never provided a copy of the ALJ's findings. Instead, the consultant relied on a copy of Seely's resume; Seely's extensive medical records; the Dictionary of Occupational Titles, which provided a “generic job analysis of [Seely's] position”; and a functional capacity exam—a two-day physical exam in which a physical therapist conducted various tests on Seely.

¶ 4 Ultimately, the ALJ found Columbia's plan to be “inadequate because it did not conform to Mr. Seely's physical limitations and did not establish that work was available within his capabilities.” Specifically, she found that the reemployment plan considered reemployment only as a radiology technician, did not take into account the limitations imposed by the various medications Seely takes daily, and failed to address Seely's lapsed radiology license, his sit/stand restrictions, and his need to take time off as his ailments demand. Thus, without an adequate plan for Seely's reemployment, the ALJ concluded “that Mr. Seely was entitled to a final award of total disability compensation.”

¶ 5 Columbia moved for administrative review of this decision, challenging the evidentiary basis and legal sufficiency of the ALJ's Order of Permanent and Total Disability. Specifically, Columbia argued that it was unable to develop an adequate reemployment plan because the ALJ failed to identify Seely's precise medical restrictions and failed to conclusively identify which part of the ten-year chronology of Seely's medical history referenced in her findings was relevant to Seely's current state of health.³ Columbia further argued that the ALJ erred by rejecting its reemployment plan without “finding whether successful rehabilitation is possible.” The Commission affirmed the ALJ's decision, stating that the reemployment plan was properly rejected and that the ALJ's findings were not conflicting or ambiguous. Additionally, the Commission stated that if Columbia felt there were ambiguities in the record that hindered its ability to develop an adequate reemployment plan, it should have sought clarification from the ALJ before developing and submitting a plan. Columbia now appeals the Commission's Order Affirming the ALJ's Decision to award permanent total disability compensation to Seely, making essentially the same arguments as it did in its Motion for Review—that the Commission, like the ALJ, “erred by failing to resolve the conflicts in the evidence regarding [Seely]'s work restrictions” and by “fail [ing] to make the requisite findings regarding whether rehabilitation was possible.”

¶ 6 We first consider whether Columbia adequately preserved its arguments on appeal. Although Seely raises a convincing preservation argument ⁴ and, in fact, the Commission seems to have rejected Columbia's arguments on similar grounds, this position misinterprets Utah case law on preservation. Utah law requires parties to preserve arguments for appellate review by raising them first in the forum below—be it a trial court or an administrative tribunal. See ABCO Enters. v. Utah State Tax Comm'n, 2009 UT 36, ¶¶ 9–12, 211 P.3d 382 (explaining three general scenarios when the preservation rule applies, including when an agency's statute does not require preservation but the issues could have been resolved if raised during the administrative process). In an administrative proceeding, the preservation doctrine requires the challenged issue to initially be brought to the fact finder's attention “so that there is at least the possibility that it could be considered.” Badger v. Brooklyn Canal Co., 966 P.2d 844, 847 (Utah 1998). “It is well settled that persons aggrieved by decisions of administrative agencies may not, by refusing or neglecting to submit issues of fact to such agencies, by-pass them, and call upon the courts to determine ... matters properly determinable originally by such agencies.” Id. (omission in original) (internal quotation marks omitted); see also Whitear v. Labor Comm'n, 973 P.2d 982, 985 (Utah Ct.App.1998) (“It is well settled that issues not raised before the Commission are waived on appeal.”). In failing to raise these challenges to the ALJ before developing a reemployment plan, Columbia's actions may seem contrary to one of the primary purposes of the preservation doctrine—to prevent “a party from avoiding the issue at trial for strategic reasons only to raise the issue on appeal if the strategy fails.” ⁵Tschaggeny v. Milbank Ins. Co., 2007 UT 37, ¶ 20, 163 P.3d 615 (internal quotation marks omitted); see also Bailey–Allen Co. v. Kurzet, 945 P.2d 180, 185 (Utah Ct.App.1997) (stating that a party cannot take one position in the proceedings below and then argue the opposite position on appeal). However, as both the ALJ and the Commission have fact-finding authority, cf. Utah Code Ann. § 34A–1–303(4)(b)–(c) (Supp.2010) (explaining that when reviewing an appeal from an administrative decision, a reviewing body may request supplemental evidence even though it may not conduct a de novo trial of the case), Columbia need only to have raised the issues currently on appeal to either the ALJ or the reviewing Commission for the issues to be properly preserved. We therefore determine that Columbia satisfied the preservation requirement by “raising [the] issue at the administrative level[ so] ‘either the administrative law judge or the Commission could have adjudicated the issue,’ ” see Ashcroft v. Industrial Comm'n, 855 P.2d 267, 268 (Utah Ct.App.1993) (quoting Pease v. Industrial Comm'n, 694 P.2d 613, 616 (Utah 1984)); accord Whitear, 973 P.2d at 985; see also Utah Chptr. of the Sierra Club v. Air Quality Bd., 2009 UT 76, ¶ 29 n. 10, 226 P.3d 719 (determining that the Sierra Club satisfied preservation requirements by raising an issue in its second request for agency action that the Air Quality Board ruled on in its final order).

¶ 7 We turn next to the substance of Columbia's claims. Columbia argues that the Commission erred in affirming the ALJ's findings because the findings did not clearly identify Seely's physical limitations and, that as a result, Columbia was unable to prepare an adequate reemployment plan.

¶ 8 The Utah Administrative Procedures Act (UAPA) determines the standard of review for a formal adjudicative hearing. See Utah Code Ann. § 34A–2–801(7) (Supp.2010) (explaining that appeals...