Whitear v. Labor Com'n
| Decision Date | 24 December 1998 |
| Docket Number | No. 981037-CA,981037-CA |
| Citation | 973 P.2d 982 |
| Parties | 359 Utah Adv. Rep. 28 Haven M. WHITEAR, Petitioner, v. LABOR COMMISSION; Brown & Root, Inc.; Highlands Insurance; and Employers' Reinsurance Fund, Respondents. |
| Court | Utah Court of Appeals |
Hans M. Scheffler, Salt Lake City, for Petitioner.
Stuart L. Poleman and Dori K. Petersen, Salt Lake City, for Respondent Brown & Root, Inc., and Highlands Insurance Company.
Alan Hennebold, Salt Lake City, for Respondent Labor Commission.
Erie V. Boorman, Salt Lake City, for Respondent Employers' Reinsurance Fund.
Before WILKINS, Associate P.J., and GREENWOOD and ORME, JJ.
Petitioner Haven M. Whitear appeals a decision of the Utah Labor Commission (Commission) denying him permanent total disability workers' compensation benefits for an industrial accident. We affirm.
On March 10, 1987, petitioner was injured in an industrial accident while employed by Brown & Root, when a toxic chemical known as Fyrquel 220 spilled on him. Petitioner pursued medical treatment for asthma and depression which he attributed to the accident. Petitioner filed an application for a hearing on April 22, 1987, in which he sought a declaration of Brown & Root's liability for workers' compensation benefits arising out of the accident. However before the hearing, the parties notified Administrative Law Judge, Timothy C. Allen, that Brown & Root accepted liability for the accident and agreed to pay all of petitioner's outstanding medical expenses. While Judge Allen accepted petitioner's claim as a compensable accident, he found that insufficient evidence existed at that time to support petitioner's claim of temporary total disability and possible permanent partial impairment as a result of the accident. Accordingly, Judge Allen dismissed the claim pending further medical evaluation.
On February 15, 1993, petitioner filed a second application for a hearing, claiming entitlement to permanent partial disability benefits. Petitioner amended the application to include a claim for permanent total disability. In its answer, Brown & Root denied all liability. Judge Allen held a hearing on February 22, 1994. Following the hearing, Judge Allen issued his Preliminary Findings of Fact and referred the claim to a medical panel for its evaluation of the medical issues. The medical panel, consisting of three licensed physicians, determined that the sole cause of petitioner's asthma was the industrial accident and gave petitioner a 10% whole person permanent impairment rating. The medical panel further reported that the industrial accident was not the cause of petitioner's depression.
Judge Allen entered an Interim Order on April 20, 1995, rejecting the panel's finding that petitioner's depression was unrelated to the industrial accident. In doing so, he adopted the opinion of petitioner's treating psychologist, that a causal connection existed between the industrial accident and the depression. Thereafter, Judge Allen entered a tentative finding of permanent total disability. Brown & Root objected to the Interim Order and filed a Motion for Review. The Commission granted Brown & Root's motion and instructed Judge Allen to conduct a hearing on the medical panel's report, specifically focusing on the cause of petitioner's depression.
Subsequently, this case was reassigned to Administrative Law Judge Donald L. George. Judge George held a hearing on February 7, 1996, at which time two members of the medical panel were present and testified. Following the hearing, Judge George accepted the panel's conclusion that petitioner's depression was not caused by the industrial accident and consequently dismissed petitioner's claim for permanent total disability benefits on that ground. Also, Judge George determined that petitioner was not medically disabled from work as a result of his asthma and therefore, denied permanent total disability benefits based upon the asthma injury. Judge George requested that Brown & Root's counsel prepare proposed findings of fact, conclusions of law and an order.
Petitioner filed a Motion for Review on August 16, 1996. On December 19, 1997, the Commission affirmed the dismissal of petitioner's claim. Petitioner now seeks review of the Commission's decision denying him permanent total disability benefits.
Petitioner raises four issues on appeal. First, petitioner challenges the Commission's factual findings that he is not permanently and totally disabled due to asthma, that his depression is not a result of the industrial accident, and that he is not a credible witness. Second, petitioner asserts that he was denied a hearing on his claim for permanent total disability compensation, in violation of his due process rights under the Utah Administrative Procedures Act (UAPA) and the Utah Constitution. Third, petitioner argues the Commission erred in ordering a hearing on the medical panel's report. Finally, petitioner contends the Commission erred in approving Judge George's request that Brown & Root's attorney draft proposed findings of fact and conclusions of law.
The applicable standard of review for a formal adjudicative hearing is determined by UAPA. See Utah Code Ann § 63-46b-16 (1997). In reviewing the Commission's factual findings, we will affirm them whenever they are "supported by substantial evidence when viewed in light of the whole record before the court." Id. § 63-46b-16(4)(g). Such findings will "not be overturned if based on substantial evidence, even if another conclusion from the evidence is permissible." Hurley v. Board of Review of Indus. Comm'n, 767 P.2d 524, 526-27 (Utah 1988). A party seeking to overturn the Commission's factual findings "must marshall [sic] all of the evidence supporting the findings and show that despite the supporting facts, and in light of the conflicting or contradictory evidence, the findings are not supported by substantial evidence." Grace Drilling Co. v. Board of Review of Indus. Comm'n, 776 P.2d 63, 68 (Utah Ct.App.1989).
We apply an intermediate standard of review to the Commission's order requiring a medical panel hearing because the Legislature has explicitly delegated discretion to the Commission to apply the law in this area. See Utah Code Ann. § 35-1-77(2)(e) (1994); Lander v. Industrial Comm'n, 894 P.2d 552, 555 (Utah Ct.App.1995). Under this standard, we will affirm the Commission's decision so long as it falls within "the bounds of reasonableness and rationality." Smith v. Mity Lite, 939 P.2d 684, 686 (Utah Ct.App.1997) (citation omitted).
We review petitioner's claim that the Commission erred in refusing to find that Judge George violated the UAPA by instructing Brown & Root's attorney to draft proposed findings of fact and conclusions of law under Utah Code Ann. § 63-46b-16(4)(e) (1997). This section allows us to grant relief to an individual who has been substantially prejudiced because "the agency has engaged in an unlawful procedure or decisionmaking process, or has failed to follow prescribed procedure." Id. Under this section, we review the Commission's decision for correctness, with no deference given to the Commission's expertise. See Krantz v. Utah Dep't of Commerce, 856 P.2d 369, 370 (Utah Ct.App.1993).
We turn first to petitioner's challenge to the Commission's factual findings. Specifically petitioner assails the Commission's determination that he is not permanently and totally disabled as a result of his asthma, that the industrial accident did not cause his depression, and that he lacks credibility as a witness. However, petitioner has failed to marshal all evidence supporting the Commission's findings or to establish that the findings are clearly erroneous. Petitioner ignores the medical panel's determination that he is not totally disabled as a result of his asthma and disregards the fact that four medical doctors found no direct causal relationship between the industrial accident and his depression. Also, petitioner fails to discuss the numerous factors in his life, which the panel determined, contributed to his depression. Finally, petitioner overlooks the Commission's findings that his testimony was exaggerated and that psychological testing indicated that he lacks credibility.
Instead, petitioner merely states those facts most favorable to his position and ignores the contrary evidence. This is not adequate. See South Cent. Tel. Ass'n v. Utah State Tax Comm'n, 951 P.2d 218, 226 (Utah 1997); Intermountain Health Care v. Industrial Comm'n, 839 P.2d 841, 844 (Utah Ct.App.1992). When a party fails to marshal the evidence, we assume the record supports the Commission's findings. See Intermountain Health, 839 P.2d at 844. We have shown no reluctance to affirm when the petitioner has failed to meet its marshaling burden. See, e.g., Turnbaugh v. Anderson, 793 P.2d 939, 944 (Utah Ct.App.1990). Therefore, we decline to consider petitioner's challenge to the Commission's findings of fact.
Petitioner argues that the Commission violated his due process rights under the UAPA and the Utah Constitution by denying him a hearing on his claim for permanent total disability benefits as it relates to his asthma injury. In other words, petitioner maintains that by limiting the hearing to the issue of the causation of his depression, the Commission denied him the opportunity to have his permanent disability claim for asthma determined. However, petitioner failed to present this issue to the Commission for review. Petitioner's Motion for Review to the Commission merely states that Judge George's decision denying his claim for asthma related permanent total disability compensation was "a clear abuse of discretion." In fact, petitioner never mentioned the UAPA or Utah Constitution nor did he assert a violation of his due process rights. It is well settled that issues not raised before the...
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