Migliaccio v. Labor Comm'n

• Decision Date: 28 February 2013
• Docket Number: No. 20110690–CA.,20110690–CA.
• Citation: 298 P.3d 676,729 Utah Adv. Rep. 20
• Parties: Tommy MIGLIACCIO, Petitioner, v. LABOR COMMISSION and Salt Lake County, Respondents.
• Court: Utah Court of Appeals

298 P.3d 676

729 Utah Adv. Rep. 20

Tommy MIGLIACCIO, Petitioner,

v.LABOR COMMISSION and Salt Lake County, Respondents.

No. 20110690–CA.

Court of Appeals of Utah.

Feb. 28, 2013.

Richard R. Burke, Sandy, for Petitioner.

Thomas C. Sturdy and Dori K. Petersen, Salt Lake City, for Respondent Salt Lake County.

Alan L. Hennebold, Salt Lake City, for Respondent Labor Commission.

Memorandum Decision

DAVIS, Judge:

¶ 1 Tommy Migliaccio seeks judicial review of the Utah Labor Commission's decision to deny his request for workers' compensation benefits for a cervical-spine injury that he asserts was caused or aggravated by an industrial accident that occurred in September 2006.¹ We do not disturb the Commission's decision.

¶ 2 Migliaccio asserts that the issue of medical causation was not disputed and that as a result, the administrative law judge (ALJ) abused her discretion when she referred the case to a medical panel after the conclusion of the hearing. Likewise, Migliaccio contends that he was entitled to a judgment in his favor as a matter of law because Salt Lake County (the County) failed to adequately dispute the issue of medical causation and further argues that the Commission's findings in accordance with the medical panel's recommendation ² were not supported by substantial evidence.

¶ 3 The Utah Code gives an ALJ the discretion to convene a medical panel when reviewing workers' compensation cases. SeeUtah Code Ann. § 34A–2–601(1)(b) (LexisNexis 2011) (“An administrative law judge may appoint a medical panel upon the filing of a claim for compensation based upon disability or death due to an occupational disease.”).³ However, the Utah Administrative Code requires an ALJ to utilize a medical panel “where one or more significant medical issues may be involved” and notes that such a circumstance “[g]enerally [involves] ... conflicting medical reports.” SeeUtah Admin. Code R602–2–2.A. Particularly, conflicting reports regarding medical causation of an employee's injuries constitute a “significant medical issue,” requiring the involvement of a medical panel. See Willardson v. Industrial Comm'n, 904 P.2d 671, 674 (Utah 1995) (internal quotation marks omitted). Accordingly, “where the evidence of a causal connection between the work-related event and the injury is uncertain or highly technical, failure to refer the case to a medical panel may be an abuse of discretion.” Id. at 675 (citation and internal quotation marks omitted).

¶ 4 Here, the ALJ concluded that “[a]lthough [rule] 602–2–2[.A] provides specific instances in which a claim must be referred to a medical panel, the statute does not preclude claims from being referred to medical panels for other medical questions.” (Emphasis added.) We agree. In any event, not only did the ALJ have discretion in this case, but the ambiguities regarding causation that were apparent in the medical records submitted by Migliaccio support the involvement of a medical panel. SeeUtah Admin. Code R602–2–2.A; Willardson, 904 P.2d at 674.

¶ 5 Migliaccio's evidence indicated that he did not complain of neck pain until May 21, 2007, seven months after his work accident. The Commission and ALJ found this delay to be an important factor in determining causation. Initially, Migliaccio's complaints were reported by various physicians to be part of an ongoing affliction that began somewhere between one and a half years and two months before the accident, and several physicians noted that Migliaccio specifically denied that his pain was attributable to a particular work accident and denied that he had any issues with his neck, with one physician actually confirming that Migliaccio's neck was healthy after conducting tests on it.⁴Several days after the accident occurred, see supra note 1, a physical therapist noted that Migliaccio considered his medical issues to constitute a “work injury.” Further, another physician evaluating Migliaccio on February 2, 2007, reported that Migliaccio described his pain as handicapping, to the extent that he could hardly lift a shovel, much less do any work with one. The physician wrote that Migliaccio stated that he essentially “could not use his arms due to pain and that he couldn't even pick his nose.” However, this physician also noted that despite Migliaccio's description of his pain, surveillance videos recorded in November 2006 by a private investigator showed Migliaccio in little to no apparent discomfort while shoveling dirt, digging, using a shovel to strike the ground with significant force, carrying objects from his truck to his house, swinging a long plank of wood, opening and closing doors and the tailgate of his truck, and swinging his arms while driving a four-wheeler.

¶ 6 These inconsistencies alone—not including the other inconsistencies referenced by the County at the hearing and in its appellate brief, as well as those noted by the ALJ in her decision to convene a medical panel—indicate that medical causation and the extent of Migliaccio's disability were unclear. The confusion as to what date the work accident occurred and Migliaccio's initial denial that his injuries were attributable to a specific work accident undermines his assertion that an accident even occurred. Further, the County disputed medical causation in its response to Migliaccio's Application For Hearing and again in its prehearing disclosures, where the County explained that it planned to present testimony from a private investigator and the aforementioned surveillance video recorded by the investigator, and to otherwise rely on the medical records to litigate its defenses of “[l]ack of medical or legal causation,” “[p]re-existing condition,” “[l]ack of competent evidence to suggest permanent total disability,” and that “[a]ny continuing problems are an industrial disease qualifying for apportionment.” In addition to presenting the surveillance video evidence and the private investigator's testimony at the hearing, the County also disputed causation through its cross-examinations of Migliaccio, the County's claims adjuster, and Migliaccio's supervisor. That the County relied on the inconsistencies in Migliaccio's medical evidence, rather than submitting its own causation evidence—which would presumably be duplicative of many of the medical records already submitted by Migliaccio—is of little consequence under the facts and circumstances of this case.⁵Cf. Willardson, 904 P.2d at 675 ( requiring the ALJ to refer the case to a medical panel where the petitioner's evidence contained conflicting conclusions regarding medical causation, despite the fact that the “[r]espondents did not provide any medical information to rebut” the petitioners' medical reports). Thus, the ALJ rightly referred the issue to a medical panel for assistance.⁶

¶ 7 Last, Migliaccio asserts that the Commission's findings were not supported by substantial evidence.⁷ “We must uphold the Commission's factual findings if such findings are supported by substantial evidence based upon the record as a whole.” Brown & Root Indus. Serv. v. Industrial Comm'n, 947 P.2d 671, 677 (Utah 1997). “It is not the role of this court to reweigh the evidence and substitute our conclusion for that of the Commission. Instead, we defer to the Commission's findings because, when reasonably conflicting views arise, it is the Commission's province to draw inferences and resolve these conflicts.” Speirs v. Southern Utah Univ., 2002 UT App 389, ¶ 13, 60 P.3d 42 (citations and internal quotation marks omitted).

¶ 8 Migliaccio specifically challenges the Commission's finding that Dr. Michael Giovanniello first concluded that Migliaccio's cervical-spine issue was unrelated to his work accident, only to change his mind later. Migliaccio also argues that the finding relied on by the Commission that none of the physicians who treated Migliaccio immediately after the work accident noted any complaints of neck pain or injury is irrelevant because these physicians were evaluating his upper extremities exclusively. He asserts that this finding by the Commission is based on the Commission's assumption that Migliaccio's neck pain should have been apparent immediately after the accident. According to Migliaccio, the limited nature of these physicians' examinations neither confirms nor disproves that Migliaccio's cervical spine was injured by the work accident. We disagree with these contentions.

¶ 9 Although it does appear that the Commission wrongly described Dr. Giovanniello as having first opined that “Migliaccio's cervical-spine condition was not related to the work accident only to eventually change his opinion,” that single inconsistency does not render the Commission's determination invalid. The medical panel's report concludes that Migliaccio's injuries were not caused by his industrial accident and is sufficient, on its own, to support the Commission's decision. Cf. Cunningham v. Labor Comm'n, 2004 UT App 276U, para. 4, 2004 WL 1850724 (mem.) (“Each of the findings that [the petitioner] challenges is supported ... by the medical panel's report, which in this case would satisfy our requirement that findings be supported by substantial evidence....”). Further, Migliaccio has not challenged the substance of the medical panel's report on appeal—his appellate briefs do not address the panel's findings; rather his briefs merely reiterate his assertion that causation was not ambiguous.⁸

¶ 10 Nonetheless, even putting aside the unchallenged merits of the medical panel's report, we believe it is relevant to the determination of causation that various physicians' reports documenting...