Stokes v. Board of Review of Indus. Com'n of Utah

• Decision Date: 22 April 1992
• Docket Number: No. 910014-CA,910014-CA
• Parties: Betty L. STOKES, Petitioner, v. BOARD OF REVIEW OF the INDUSTRIAL COMMISSION OF UTAH; American Express; and Zurich-American Insurance Company, Respondents.
• Court: Utah Court of Appeals

Page 56

832 P.2d 56

Betty L. STOKES, Petitioner, v. BOARD OF REVIEW OF the INDUSTRIAL COMMISSION OF UTAH American Express; and Zurich-American Insurance Company, Respondents.

No. 910014-CA.

Court of Appeals of Utah.

April 22, 1992.

Brenda L. Flanders (argued), Brenda L. Flanders & Associates, Salt Lake City, for petitioner.

Henry K. Chai, II (argued), and Robert C. Keller, Snow, Christensen & Martineau, Salt Lake City, for respondents American Exp. and Zurich-American Ins. Co.

Benjamin A. Sims, Thomas C. Sturdy and Cynthia A. Anderson, Indus. Com'n of Utah, Legal Affairs Div., Salt Lake City, for Indus. Com'n.

Before GARFF, GREENWOOD and RUSSON, JJ.

GREENWOOD, Judge:

Petitioner Betty L. Stokes appeals the Industrial Commission's denial of workers' compensation benefits. We affirm.

BACKGROUND

Betty Stokes (Stokes) was hired as a secretary by American Express in 1982, and worked there until 1988. She held five different positions at American Express, including supervisory positions in three departments. Stokes was promoted often and generally received excellent reviews.

In December 1987, while working as a supervisor in the key entry department, Stokes allowed the employees in her department to watch a video, "Crocodile Dundee," on work time, and to take extended lunch periods to do Christmas shopping. Both activities violated company policy. Stokes's supervisor spoke with her about these incidents and placed her on "verbal warning."

In April 1988, Stokes received an unfavorable evaluation from her supervisor. Stokes was upset about the evaluation and, in accordance with company policy, discussed it in several meetings with her supervisor and members of the Human Resources Department. After one of the meetings, Stokes suffered chest pains and was taken to the emergency room at Pioneer Memorial Hospital.

From January through July of 1988, Stokes's department failed to meet its performance goals and Stokes again received unfavorable evaluation ratings from her supervisor. She was also accused of falsifying her department's production reports. After meeting with her supervisor about the reports, Stokes was placed on "Step III Warning," which is the final step in American Express's disciplinary procedures before termination.

In July 1988, Stokes called American Express's Human Affairs Department in New York and reported that she had been sexually harassed by her supervisor, a woman with whom Stokes had had a close personal friendship from 1982 until the spring of 1987. During this period, they spent time together at work and away from work and became involved in each other's personal lives. Stokes alleged that her supervisor sexually harassed her on several occasions beginning in June of 1987. Specifically, Stokes claimed that her supervisor kissed her "passionately" when Stokes gave her a ride to the airport, attempted to seduce her on a weekend trip the two took to Wendover, and repeatedly invited Stokes to spend the night at her house. Stokes also made these allegations to a member of the Human Resources Department in Salt Lake City. After investigating the allegations, the Salt Lake City Human Resources Department determined that Stokes's claims were without merit. The New York office took no action.

In July 1988, Stokes again collapsed at work. She was taken to a hospital emergency room where she was treated for chest pains, given several medical tests and released. Her chest pains continued and one of her doctors advised her not to go to work. Stokes did not return to American Express and was terminated on July 26, 1988 because her doctors said she could not return to work. She received salary disability payments for a period of time and payments as provided by a disability policy. After her termination, Stokes was treated by a psychiatrist and a clinical social worker, both of whom diagnosed her as having post traumatic stress disorder (PTSD).

Stokes filed a claim with the Industrial Commission for workers' compensation benefits. She claimed that her supervisor and others instigated company disciplinary proceedings against her in retaliation for her failure to comply with her supervisor's alleged sexual advances. Stokes contended that the stress of the sexual harassment and the retaliatory actions caused her to suffer PTSD and aggravated her peptic ulcers, chest pains and sciatic nerve damage, rendering her disabled.

Stokes's claim for workers' compensation benefits was heard by an administrative law judge (A.L.J.). The hearing lasted seven days. The A.L.J. considered the testimony of nine witnesses and several volumes of medical and psychological reports. Following the hearing, the A.L.J. found the alleged sexual harassment never occurred. She also determined the instigation and processing of the disciplinary proceedings against Stokes had been properly and appropriately handled in accordance with company procedures. Each disciplinary action by American Express was either the usual one in similar circumstances or more lenient. The A.L.J. also found that other events in Stokes's life, outside of work, could have caused the PTSD and aggravated her other conditions. The A.L.J. determined that Stokes failed to prove legal causation, as required in Allen v. Industrial Commission, 729 P.2d 15, 25 (Utah 1986), and therefore denied Stokes compensation. Stokes filed a request for review of the A.L.J.'s findings with the Industrial Commission. The Commission sustained the A.L.J.'s order and denied the request for review. This appeal followed.

ISSUES

We examine on appeal the following arguments raised by Stokes as to why the A.L.J. allegedly erred in denying her compensation: (1) the A.L.J.'s findings are contrary to the evidence; (2) Stokes is entitled to compensation; (3) the A.L.J. erroneously required Stokes to prove fault and proximate cause; and (4) the A.L.J. acted outside her authority in making her findings concerning sexual harassment.

STANDARD OF REVIEW

Utah Code Ann. § 63-46b-16 (1988) of the Utah Administrative Procedures Act (UAPA) provides:

(1) As provided by statute, the Supreme Court or the Court of Appeals has jurisdiction to review all final agency action resulting from formal adjudicative proceedings.

. . . . .

(4) The appellate court shall grant relief only if, on the basis of the agency's record, it determines that a person seeking judicial review has been substantially prejudiced by any of the following:

(b) the agency has acted beyond the jurisdiction conferred by any statute;

. . . . .

(d) the agency has erroneously interpreted or applied the law;

. . . . .

(g) the agency action is based upon a determination of fact, made or implied by the agency, that is not supported by substantial evidence when viewed in light of the whole record before the court;

....

The requirement of "substantial prejudice" in section (4) manifests the legislature's intent that relief not be given for an agency error if the error was harmless. ¹ Morton Int'l, Inc. v. Auditing Div., 814 P.2d 581, 584 (Utah 1991).

In accordance with the statutory language above, "this court grants great deference to an agency's findings, and will uphold them if they are 'supported by substantial evidence when viewed in light of the whole record before the court.' " Department of Air Force v. Swider, 824 P.2d 448, 451 (Utah App.1991) (quoting Utah Code Ann. § 63-14b-16(4)(g) (1989)). "Substantial evidence" is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Id. at 451 (quoting Grace Drilling Co. v. Board of Review, 776 P.2d 63, 67 (Utah App.1989)). In making this determination, we review the whole record before the court. Id. at 451. "It is the petitioner's duty to properly present the record, by marshaling all of the evidence supporting the findings and showing that, despite that evidence and all reasonable inferences that can be drawn therefrom, the findings are not supported by substantial evidence." Id. at 451.

We grant discretion to an agency's application of the law to particular facts only when "there is a grant of discretion to the agency concerning the language in question, either expressly made in the statute or implied from the statutory language." Morton, 814 P.2d at 589; Swider, 824 P.2d at 451. "[A]bsent a grant of discretion, a correction-of-error standard is used in reviewing an agency's interpretation or application of a statutory term." Morton, 814 P.2d at 588.

The workers' compensation statute reads in pertinent part:

Each employee ... who is injured ... by accident arising out of and in the course of his employment, wherever such injury occurred, ... shall be paid compensation for loss sustained on account of the injury or death, and such amount for medical, nurse, and hospital services and medicines....

Utah Code Ann. § 35-1-45 (1988).

"[S]ection 35-1-45 does not expressly or impliedly grant discretion to the Industrial Commission in construing the specific language of the statute." Cross v. Board of Review, 824 P.2d 1202, 1204 (Utah App.1991).

We therefore review for correctness the A.L.J.'s application of the statute to these facts.

FINDINGS OF FACT

Stokes argues that the A.L.J.'s findings are contrary to the evidence presented at the hearing. Stokes particularly challenges the A.L.J.'s finding that Stokes's injuries were not work-related.

The A.L.J.'s "Findings of Fact, Conclusions of Law and Order" includes detailed summaries of each witness's testimony. Those summaries are consistent with and fairly represent the actual transcribed proceedings. According to the A.L.J., Stokes testified about specific acts of alleged sexual harassment by her supervisor. She testified that on one occasion she drove her supervisor to the airport and her supervisor suddenly and unexpectedly kissed her "passionately on the mouth." Stokes also told of a trip she took to Wendover with her supervisor on which the supervisor had arranged for a hotel...