Danny's Drywall v. Labor Comm'n

• Decision Date: 20 November 2014
• Docket Number: No. 20121077–CA.,20121077–CA.
• Citation: 339 P.3d 624,2014 UT App 277
• Parties: DANNY'S DRYWALL and American Liberty Insurance Co., Petitioners, v. LABOR COMMISSION and Rafael Suastegui Bernal, Respondents.
• Court: Utah Court of Appeals

339 P.3d 624
2014 UT App 277

DANNY'S DRYWALL and American Liberty Insurance Co., Petitioners
v.
LABOR COMMISSION and Rafael Suastegui Bernal, Respondents.

No. 20121077–CA.

Court of Appeals of Utah.

Nov. 20, 2014.

339 P.3d 626

Mark D. Dean, Kristy L. Bertelsen, and Scott R. Taylor, for Petitioners.

Jaceson R. Maughan, for Respondent Labor Commission.

Aaron J. Prisbrey and Trevor C. Sanders, for Respondent Rafael Suastegui Bernal.

Senior Judge RUSSELL W. BENCH authored this Opinion, in which Judges MICHELE M. CHRISTIANSEN and JOHN A. PEARCE concurred.¹

Opinion

BENCH, Senior Judge:

¶ 1 Danny's Drywall and its insurer, American Liberty Insurance Co., (collectively, Employer) petition for judicial review of a Labor Commission decision awarding permanent total disability benefits to Rafael Suastegui Bernal (Claimant). We do not disturb the Commission's decision.

BACKGROUND

¶ 2 On February 17, 2009, while working as a drywall installer for Danny's Drywall, Claimant “fell 14 feet from a ladder and

339 P.3d 627

scaffold.” He suffered extensive bone fractures in his face and right hand, as well as tears in the muscles and cartilage of his right shoulder. He also experienced back and neck pain. Following treatment, Claimant reached medical stability from his hand and shoulder injuries, but headaches and continued chronic pain in his right jaw, neck, and lower back affected his activity level and ability to sleep. He was eventually diagnosed with several torn and bulging discs in his back.

¶ 3 In April 2010, Claimant filed an application for permanent total disability benefits. After a hearing, the Administrative Law Judge (the ALJ) decided that, due to the conflicting medical evidence concerning Claimant's medical and functional limitations, a final determination on his eligibility for permanent total disability benefits could not be made without an independent medical review. As a result, in June 2011, the ALJ appointed a medical panel, consisting of specialists in pain management and psychiatry. In the medical panel referral letter, the ALJ informed the panel that it was “bound by the Findings of Fact and Conclusions of Law contained in my Interim Order.” As the ALJ explained, “[t]he facts are the historical and other legal data regarding how the injury occurred, dates and times, places, persons involved, and other related information commonly thought of as the situational circumstances surrounding the alleged injury.” The ALJ also stated,

If you discover additional facts which are not contrary to the facts in the Findings of Fact and Conclusions of Law contained in my Interim Order, and you use them in your examination and evaluation, it will be necessary to include them in your report and explain how the additional facts affected your analysis and conclusions.

The ALJ then instructed the medical panel to answer the following question: “What are [Claimant's] permanent physical restrictions as a result of injury from the industrial accident on 2/17/2009?” The ALJ further instructed the panel to “address in your answer the varying opinions in the medical record and relate [Claimant's] functional and medical capacity restrictions regarding his ability to work an eight hour work day including limits on standing, sitting, missing work days and breaks needed within the work day.”

¶ 4 The medical panel reviewed all relevant medical records, considered the opinions of the parties' experts, and conducted its own examination of Claimant. The medical panel thereafter issued a report detailing its conclusions regarding Claimant's functional and medical capacity restrictions related to the industrial accident. The medical panel diagnosed Claimant with a number of “medical conditions, as a direct result of the February 17, 2009 industrial accident,” including traumatic brain injury and chronic pain. The panel determined that Claimant had a variety of restrictions related to lifting, sitting, and other activities. According to the panel, it was unlikely that Claimant could be a productive worker for more than four hours a day. Even then, the panel expected Claimant to require additional time off due to medical care and periodic exacerbations of his problems.

¶ 5 In response to the medical panel report, Employer hired a physiatrist, Dr. Jeff Chung, to review and critique the report. In preparing his analysis, Dr. Chung relied entirely on the panel report and examined neither Claimant nor the underlying medical records. Although Dr. Chung agreed with some of the medical panel's conclusions, Dr. Chung flatly disagreed with the panel's diagnoses and also opined that the panel's report did not adequately state a basis for some of its conclusions.

¶ 6 Employer filed an objection to the medical panel report, citing Dr. Chung's critique and arguing (1) that the panel violated the charging order by evaluating matters not before it, (2) that the report was not based on reasonable medical probability, and (3) that other substantial evidence supported a finding contrary to the panel's finding. The ALJ rejected all of Employer's arguments and admitted the medical panel report into the evidentiary record. After considering all the evidence, the ALJ adopted the medical panel's opinion regarding Claimant's functional and medical capacity restrictions that were caused by the industrial accident and

339 P.3d 628

ultimately determined that Claimant was eligible for permanent total disability benefits.

¶ 7 Employer subsequently filed a motion for review with the Commission, raising the same arguments as in its objection to the medical panel report. Like the ALJ, the Commission rejected Employer's arguments. First, the Commission concluded that “the medical panel did not exceed its authority, either in its personal examination of [Claimant], its diagnosis of his medical problems, or its assessment of whether those problems were caused by his work accident.” Second, the Commission determined that, when viewed as a whole, the medical panel report is based on the panel's assessment of medical probability. Third, the Commission reasoned that the existence of contradictory evidence was not a sufficient reason to disregard or exclude the medical panel report. The Commission therefore rejected Employer's challenges to the ALJ's decision and the medical panel report on which it was based, and affirmed the ALJ's decision. This petition for judicial review followed.

ISSUES AND STANDARDS OF REVIEW

¶ 8 Employer first attacks the Commission's adoption of the medical panel report, contending that the panel disregarded the charging order by evaluating medical causation, diagnosis, and past and future medical care. In particular, Employer argues that the ALJ did not refer all of those issues to the panel when the ALJ asked the panel to evaluate Claimant's “permanent physical restrictions as a result of injury from the industrial accident.” Because Employer's argument challenges the propriety of the Commission's interpretation of the ALJ's order, we review that interpretation for an abuse of discretion.See A & B Mech. Contractors v. Labor Comm'n, 2013 UT App 230, ¶ 7, 311 P.3d 528.

¶ 9 Employer raises two other arguments in challenging the Commission's award of permanent total disability benefits to Claimant, focusing on the Commission's adoption of the medical panel report. “Whether the commission correctly or incorrectly denied benefits is a traditional mixed question of law and fact.” Jex v. Labor Comm'n, 2013 UT 40, ¶ 15, 306 P.3d 799 (citation and internal quotation marks omitted); see also Murray v. Labor Comm'n, 2013 UT 38, ¶ 33, 308 P.3d 461 (“[A] mixed question arises when an agency ... must apply a legal standard to a set of facts unique to a particular case.” (citation and internal quotation marks omitted)). “The standard of review we apply when reviewing a mixed question can be either deferential or nondeferential....” Murray, 2013 UT 38, ¶ 36, 308 P.3d 461. “Deference on a mixed question is warranted when ‘the mixed finding is not “law-like” because it does not lend itself to consistent resolution by a uniform body of appellate precedent’ or ‘is “fact-like” because the [factfinder] is in a superior position to decide it.’ ” Jex, 2013 UT 40, ¶ 15, 306 P.3d 799 (alteration in original) (emphasis omitted) (quoting Murray, 2013 UT 38, ¶ 37, 308 P.3d 461 ).

¶ 10 Next, Employer argues that the ALJ's Interim Order was not sufficiently detailed and that the ALJ's failure to provide adequate findings of fact led the medical panel to evaluate matters beyond the scope of its authority. “Whether an administrative agency's findings are adequate is a legal determination that requires no deference.” Blair v. Labor Comm'n, 2011 UT App 248, ¶ 14, 262 P.3d 456.

¶ 11 Finally, Employer argues that the Commission erred in adopting the medical panel report because, according to Employer, other substantial evidence supports findings contrary to the medical panel's findings. “We will not disturb the Commission's factual findings unless the party challenging the findings demonstrates that a finding is not supported by substantial evidence.” Swift Transp. v. Labor Comm'n, 2014 UT App 104, ¶ 8, 326 P.3d 678 (citing Murray, 2013 UT 38, ¶...