Stewart v. Board of Review of Indus. Com'n of Utah
Decision Date | 29 April 1992 |
Docket Number | No. 910425-CA,910425-CA |
Citation | 831 P.2d 134 |
Parties | Jennie STEWART, Petitioner, v. BOARD OF REVIEW OF the INDUSTRIAL COMMISSION OF UTAH; Warner Lambert/American Chickle; and Underwriters Adjusting Company, Respondents. |
Court | Utah Court of Appeals |
Lowell V. Summerhays, Murray, for petitioner.
Henry K. Chai, II, Salt Lake City, for respondents Warner Lambert/American Chickle and Underwriters Adjusting Co.
Before BILLINGS, GREENWOOD and JACKSON, JJ.
Petitioner Jennie Stewart appeals the Industrial Commission's denial of certain benefits sought by Stewart. We affirm.
On July 31, 1984, Stewart experienced a pain in her right shoulder while lifting boxes in the course of her employment duties. Stewart did not report the injury to her employer, respondent American Chickle (Chickle), nor did she seek immediate medical treatment. Stewart continued to work and first sought medical treatment on August 27, 1984. At that time she saw Dr. Jerry Poulson, her family physician, who referred her to Dr. Devon Toone, a chiropractor. Stewart did not mention any specific industrial injury to Dr. Poulson. Dr. Toone first saw Stewart on October 10 and continued treating her until May of 1985. Dr. Toone's records indicate that Stewart reported the injury had occurred at work while she was lifting boxes. In a subsequent report completed by Dr. Poulson, the date of injury was stated as July 1984.
In a report dated November 7, 1984, Stewart reported the injury to her employer. In that report, Stewart indicated she did not know how the injury occurred.
Dr. Thomas Soderburg, an orthopedic surgeon, examined Stewart on May 1, 1985. Both Dr. Soderburg and Dr. Kim Bertin, another orthopedic surgeon, opined that Stewart had a muscle strain of her right shoulder. Stewart continued working until September 12, 1985. On that date, Dr. Bertin hospitalized Stewart and performed an acromioplasty of her right shoulder. Stewart received temporary total compensation from workers' compensation from September 12, 1985 through March 26, 1986. On March 19, 1986, Dr. Bertin gave Stewart a permanent partial impairment rating of four percent of the upper extremity which he converted to a two percent whole person permanent rating. Chickle, through its insurance carrier, tendered a compensation agreement and check to Stewart to compensate her for a 2.4 percent whole person impairment. Stewart disputed this rating.
When Stewart's temporary total disability benefits were terminated in March of 1986, she began receiving long-term disability benefits. After an unrelated hospitalization in September of 1986, Stewart returned to Dr. Bertin with complaints of shoulder pain. Dr. Bertin referred Stewart to Dr. Bruce Sorenson to determine if Stewart's shoulder pain was being caused by some cervical abnormality. Several tests were performed and all results were normal. Neither Dr. Bertin nor Dr. Sorenson could determine the source of Stewart's pain and Dr. Bertin concluded Stewart should seek further consultation to make sure nothing was being overlooked.
On August 25, 1987, Stewart was involved in an automobile accident. The collision caused the dashboard of the vehicle to be pushed into her right arm which in turn pushed Stewart's right shoulder back. The armrest of the passenger door struck Stewart on the right side below her ribs. A few days later, Stewart sought medical treatment from Dr. Poulson. Dr. Poulson's records indicate Stewart had a bruise to the right shoulder and arm as well as pain in her neck. The records also indicate that Dr. Poulson concluded that Stewart's problems resulting from the industrial accident had resolved and that they were not contributing to the problems from the automobile accident. He provided fifteen treatments which ended in March of 1988, all of which were for treatment of the neck and dorsal back. In a letter to Stewart's counsel dated March 3, 1988, Dr. Poulson reported two separate injuries. He attributed Stewart's pain in her right shoulder to the 1984 industrial accident and gave a two percent whole person impairment rating for that injury. Dr. Poulson attributed the cervical spine, dorsal spine, and right shoulder injuries to the automobile accident and gave a ten percent whole person rating for that injury. Dr. Poulson concluded that most if not all of the pain Stewart was experiencing in her shoulder was due to pain from her cervical spine area.
At the request of the long-term disability insurance carrier, two additional physicians examined Stewart. Those physicians' reports indicate that they believed the industrial accident was responsible for Stewart's pain. The administrative law judge (ALJ) 2 found that neither of these physicians were informed about the automobile accident or about Dr. Poulson's conclusions. A medical panel consisting of one physician reviewed the case and submitted a report to the ALJ on June 6, 1989. The findings of the medical panel are summarized by the ALJ as follows:
The medical panel felt that the applicant's complaints were cervical in nature, rather than shoulder, and that the applicant had a lot of subjective complaints without objective findings. The medical panel found a causal connection between the right shoulder problems and the industrial accident, and gave the applicant a 5% upper extremity rating which converts to a 3% whole person. The panel also found that the impairment led to a 30% disability, which was beyond its charge. In a supplemental panel report issued April 3, 1990, the medical panel concluded that the automobile accident did not cause any significant damage to the applicant's right shoulder. The panel concluded that all of the applicant's current complaints are related to a cervical disc injury ... [which] was caused by the industrial accident of 1984, and was accentuated by the automobile accident.
The ALJ rejected the medical panel's finding that there was a causal connection between Stewart's cervical complaints and the 1984 industrial accident. The ALJ found there was no medical evidence to support that finding, and that therefore, Stewart's cervical injury resulted from her automobile accident and not the industrial accident.
The ALJ concluded that Stewart was entitled to a three percent whole person impairment as found by the medical panel, that Chickle had no responsibility for treatment resulting from the automobile accident, that Chickle was not responsible for the medical expenses of the two physicians to whom the long-term disability carrier had referred Stewart, and that all future medical expenses were Stewart's responsibility. Stewart moved for review whereupon the Industrial Commission affirmed the ALJ's findings and conclusions.
Stewart challenges the ALJ's rejection of the medical panel's conclusion that her current injury was caused by the industrial accident. Stewart further claims that the Industrial Commission failed to determine all findings of fact, and that there is credible evidence in the record to support a conclusion that the industrial accident caused all of Stewart's injuries. Stewart asks this court to conclude that Chickle is liable for all present and future medical expenses incurred as a result of that accident. 3
Because these proceedings were commenced after January 1, 1988, our review is governed by the Utah Administrative Procedures Act (UAPA), Utah Code Ann. § 63-46b-16 (1989). The standard for reviewing findings of fact under UAPA is well settled. "[F]indings of fact will be affirmed if they are 'supported by substantial evidence when viewed in light of the whole record before the court.' " Merriam v. Board of Review, 812 P.2d 447, 450 (Utah App.1991) (quoting Nelson v. Department of Employment Sec., 801 P.2d 158, 161 (Utah App.1990)). "Substantial evidence is that...
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