Oliver v. Utah Labor Comm'n

• Decision Date: 25 July 2017
• Docket Number: No. 20150889,20150889
• Parties: Mark L. OLIVER, Respondent, v. UTAH LABOR COMMISSION, Workers Compensation Fund, and D. Tyree Bulloch Construction, Petitioners.
• Court: Utah Supreme Court

424 P.3d 22

Mark L. OLIVER, Respondent,

v.UTAH LABOR COMMISSION, Workers Compensation Fund, and D. Tyree Bulloch Construction, Petitioners.

No. 20150889

Supreme Court of Utah.

Filed July 25, 2017

Floyd W. Holm, St. George, for petitioners, Workers Compensation Fund and D. Tyree Bulloch Construction.

Jaceson R. Maughan, Salt Lake City, for petitioner, Utah Labor Commission.

Virginius Dabney, St. George, Stony Olsen, Moroni, for respondent.

Justice Himonas authored the opinion of the Court, in which Chief Justice Durrant, Justice Durham, and Judge Pettit joined.

Associate Chief Justice Lee filed an opinion concurring in the judgment.

Having recused himself, Justice Pearce did not participate herein; District Court Judge Kara Pettit sat.

Justice Himonas, opinion of the Court:

INTRODUCTION

¶ 1 After injuring himself on a construction site, Mark Oliver applied for permanent total disability benefits under Utah Code section 34A-2-413, the permanent total disability portion of the Workers' Compensation Act. The Labor Commission denied Mr. Oliver's application based on his failure to prove two elements of a permanent total disability claim: (1) that he was limited in his ability to do basic work activities, UTAH CODE § 34A-2-413(1)(c)(ii), and (2) that he was not prevented from performing the essential functions of work for which he had been qualified until the time of his accident, id. § 34A-2-413(1)(c)(iii). Mr. Oliver appealed, and the Utah Court of Appeals reversed the Labor Commission's order.

¶ 2 We now hold that the Labor Commission properly denied Mr. Oliver's application and accordingly reverse the court of appeals. For the reasons explained in this opinion, the court of appeals' interpretation of Utah Code section 34A-2-413(1)(c)(ii) —the "basic work activities" provision of the permanent total disability statute—is contrary to the plain meaning of the statute and our decision in Provo City v. Utah Labor Commission , 2015 UT 32, 345 P.3d 1242.¹ On the correct interpretation of this provision, the Labor Commission's determination that Mr. Oliver failed to prove this element is supported by substantial evidence.

¶ 3 We also hold that the court of appeals misallocated the burden of proof and improperly considered information not contained in the administrative record in reversing the Labor Commission's determination that Mr. Oliver had failed to prove the "essential functions" element of a permanent total disability claim.²

BACKGROUND

¶ 4 On March 27, 2000, Mark Oliver was working for D. Tyree Bulloch Construction (Bulloch Construction) when he fell from a suspended porch, injuring himself. For several years following his injury, Mr. Oliver worked a variety of jobs, including as a construction worker, landscape designer, and, most recently, as a delivery truck driver. He stopped working altogether in 2007.

¶ 5 On June 20, 2012, Mr. Oliver applied to the Utah Labor Commission for permanent total disability benefits under Utah Code section 34A-2-413, the permanent total disability statute. The parties submitted conflicting medical evidence and vocational evidence. One medical expert, Dr. Mark Passey, opined that Mr. Oliver was able to "perform just about any activities he wishes to do," while another, Dr. Jacob Corry, believed that Mr. Oliver would suffer from constant attention difficulties due to his pain and a severe restriction in his ability to walk, balance, and crouch.

¶ 6 The parties also submitted conflicting vocational evidence. Relying on Dr. Corry's medical opinion, Mr. Oliver's vocational expert opined that Mr. Oliver likely could not perform basic work activities because he was unable to concentrate due to pain. By contrast, Bulloch Construction's vocational expert testified that Mr. Oliver was able to perform medium-duty work, and that he was not limited in his ability to do basic work activities. Bulloch Construction's expert acknowledged that, if Dr. Corry's medical opinion was correct, Mr. Oliver likely could not perform basic work activities.

¶ 7 Because of the differences in medical opinion, an administrative law judge (ALJ) appointed an independent medical panel to conduct an impartial review of the medical evidence. This panel concluded that Mr. Oliver could perform medium-duty work as long as he was able to be absent from work occasionally, elevate his legs for five to ten minutes out of every hour, and take occasional unscheduled breaks during the day. The panel also opined that, as a general matter, Mr. Oliver was able to perform basic work activities; among other things, it found that he could "concentrate, ... commute, communicate, work, remain at work for the scheduled time, and cope with ... the work setting."

¶ 8 After reviewing this evidence, the ALJ found that Mr. Oliver was permanently totally disabled and tentatively awarded him permanent total disability benefits. Bulloch Construction then appealed this award to the Labor Commission, which reversed it on two grounds.

¶ 9 First, the Labor Commission concluded that Mr. Oliver had not proven that he was limited in his ability to perform basic work activities. Giving great weight to the medical panel report, the Labor Commission found that Mr. Oliver was able to work, remain at work, and cope with changes at work. It acknowledged the medical panel's conclusion that Mr. Oliver may require unscheduled breaks and may be absent from work occasionally, but found that these "indefinite circumstances do not present a reasonable limitation on Mr. Oliver's ability to do basic work activities in light of the panel's description that he may work, remain at work, and cope with changes at work." Similarly, the Labor Commission found that Mr. Oliver's need to "elevate his legs for 5-10 minutes for every hour he is required to stand is not enough to show [that he] is reasonably limited in his flexibility or endurance...."

¶ 10 The Labor Commission also disagreed with the ALJ's conclusion that Mr. Oliver could not perform the essential functions of his previous work as a delivery truck driver. The Labor Commission found that Mr. Oliver had been qualified to be a delivery truck driver at the time of the accident. Based on testimony about his medical and vocational ability, it also found that he had failed to prove that he was unable to perform the essential functions of that job. Accordingly, the Labor Commission concluded that Mr. Oliver had not established that he was entitled to permanent total disability benefits.

¶ 11 After filing an unsuccessful motion for reconsideration, Mr. Oliver appealed the Labor Commission's denial of benefits to the Utah Court of Appeals. The court of appeals reversed the Labor Commission's order on two points. First, it held that the Labor Commission misinterpreted the basic work activities provision of the permanent total disability statute. Second, after consulting the Bureau of Labor Statistics' Occupational Outlook Handbook—a handbook that the parties agree was not in the record—it concluded that the Labor Commission's determination that Mr. Oliver had been qualified to work as a delivery truck driver was not supported by substantial evidence. The court of appeals accordingly reinstated the ALJ's award of permanent total disability benefits.

¶ 12 Bulloch Construction subsequently petitioned this court for certiorari, which we granted. We reverse the court of appeals and uphold the Labor Commission's decision.

STANDARDS OF REVIEW

¶ 13 "On certiorari, we give the court of appeals' decision no deference and review its decision under a correctness standard." Nichols v. Jacobsen Constr. Co., 2016 UT 19, ¶ 13, 374 P.3d 3 (citation omitted). We also review interpretations of a statute for correctness. Martinez v. Media-Paymaster Plus/Church of Jesus Christ of Latter-day Saints , 2007 UT 42, ¶ 11, 164 P.3d 384. And when the Labor Commission's factual determinations are properly before us on review, we review them under the substantial evidence standard of review, examining the whole record to determine whether "a reasonable mind might accept as adequate the evidence supporting the decision." Id. ¶ 35 (internal quotation marks omitted).

ANALYSIS

¶ 14 We set ourselves three tasks in this part of the opinion. First, we provide an overview of the elements of a permanent disability claim and explain the work each element does and how the elements relate to each other. We then hold that the court of appeals erred in its interpretation of the basic work activities provision, explain why we reject the concurring opinion's interpretation of this provision, and uphold the Labor Commission's determination that Mr. Oliver did not prove that he was limited in his ability to do basic work activities. Third and finally, we explain the errors in the court of appeals' analysis of whether Mr. Oliver established that his impairments prevented him from performing the "essential functions" of the work for which he had been qualified until his accident.

I. THE ELEMENTS OF A PERMANENT TOTAL DISABILITY CLAIM

¶ 15 Under Utah Code section 34A-2-413, an employee is required to prove six elements to establish a claim for permanent total disability benefits: (1) "the employee sustained a significant impairment" as a result of the work-related injury, (2) "the employee is not gainfully employed," (3) "the employee has an impairment or combination of impairments that limit the employee's ability to do basic work activities," (4) the impairment or impairments "prevent the employee from performing the essential functions of the work for which the employee has been qualified" until the time of the accident, (5) "the employee cannot perform other work reasonably available," and (6) "the industrial accident or occupational disease is the direct cause of the employee's permanent total disability." UTAH CODE § 34A-2-413(1)(b)–(c) ; Provo City v. Utah Labor Comm'n , 2015 UT 32, ¶ 6, 345 P.3d 1242. Utah Code section 34A-2-413(1)(b)–(c) lays out the factual elements of a permanent...