Provo City v. Utah Labor Commission , 779 Utah Adv. Rep. 186 ( 2015 )

This opinion is subject to revision before final
publication in the Pacific Reporter
2015 UT 32
IN THE
S UPREME C OURT OF THE S TATE OF U TAH
PROVO CITY and WORKERS COMPENSATION FUND ,
Petitioners,
v.
UTAH LABOR COMMISSION and DUANE SERRANO ,
Respondents.
No. 20120724
Filed February 6, 2015
Original Proceeding in this Court
Attorneys:
Hans M. Scheffler, Salt Lake City, for petitioners
Alan L. Hennebold, Jaceson R. Maughan,
Gary E. Atkin, Marsha S. Atkin, Salt Lake City,
for respondents
JUSTICE DURHAM authored the opinion of the Court, in which
CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE NEHRING ,
JUSTICE PARRISH , and JUSTICE LEE joined.
JUSTICE DURHAM , opinion of the Court:
INTRODUCTION
¶1 While driving a truck within the scope of his employment
with Provo City, Duane Serrano was injured in a car accident. He
later applied for and received permanent total disability benefits.
Provo City and the Workers Compensation Fund (collectively, WCF)
appealed from the Utah Labor Commission’s order awarding
benefits, arguing that (1) Mr. Serrano failed to prove the elements of
a permanent total disability claim; (2) the administrative law judge
abused her discretion because she initially denied Mr. Serrano’s
claim, but then awarded benefits after the labor commission
instructed her to reconsider the evidence; and (3) any award of
benefits should not commence on the date that he was deemed to be
permanently and totally disabled because of the extraordinary delay
in resolving Mr. Serrano’s claim. We conclude that none of these
arguments merit reversal, and we affirm the labor commission’s
award of benefits.
PROVO CITY v. UTAH LABOR COMMISSION
Opinion of the Court
BACKGROUND
¶2 Mr. Serrano was employed by Provo City as a facility
service technician. While driving a truck within the scope of his
employment, he was injured in an automobile accident. Mr. Serrano
alleged that the accident aggravated a congenital spine condition,
leading to chronic pain and other disabilities. After the accident,
Mr. Serrano continued to work for Provo City. But more than four
years later, he concluded that his symptoms were no longer
manageable and requested an assignment to a less physically
demanding job. When Provo City replied that a suitable position
was not available, Mr. Serrano quit.
¶3 Mr. Serrano subsequently applied for permanent total
disability compensation under the Workers’ Compensation Act,
alleging that by the time he quit, his condition had deteriorated to
the point that he could no longer work. The administrative law
judge assigned to adjudicate his claim received into evidence over
twenty medical evaluations made by doctors and other experts.
Although the evaluators generally agreed that Mr. Serrano suffered
from continuing impairment caused by the accident, they differed as
to its degree. Some doctors opined that Mr. Serrano was
malingering, and that he could work if certain restrictions were
observed. Another expert concluded that Mr. Serrano suffered from
chronic pain and other ailments aggravated by even basic work
activities and that, as a result, he was permanently and totally
disabled.
¶4 After reviewing this evidence, the administrative law judge
found that Mr. Serrano had not proven all of the required elements
to receive permanent total disability compensation and dismissed
his claim with prejudice. Mr. Serrano filed a motion for review with
the Utah Labor Commission. The labor commission set aside the
administrative law judge’s order because it concluded that the judge
should have appointed a medical panel to review Mr. Serrano’s
claim. The labor commission therefore remanded the case back to the
judge with directions to appoint a medical panel and to issue a new
decision in light of the entire record.
¶5 On remand, the administrative law judge referred the case
to a medical panel for review. After reviewing the medical panel’s
report and the medical evidence, the administrative law judge found
that the preponderance of the evidence showed that Mr. Serrano was
permanently and totally disabled as a result of his accident and
awarded him permanent disability payments. The WCF filed a
motion for review with the labor commission, asserting that the
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Opinion of the Court
judge’s order was in error. The commission affirmed the
administrative law judge’s order. The WCF appealed, and the court
of appeals certified the case to this court.
ANALYSIS
I. PERMANENT TOTAL DISABILITY
¶6 The elements of a permanent total disability claim are laid
out in Utah Code section 34A-2-413(1)(b):
To establish entitlement to permanent total disability
compensation, the employee shall prove by a
preponderance of evidence that:
(i) the employee sustained a significant impairment
or combination of impairments as a result of the
industrial accident or occupational disease . . . ;
(ii) the employee has a permanent, total disability;
and
(iii) the industrial accident or occupational disease
is the direct cause of the employee’s permanent
total disability.
The statute further provides that permanent total disability is
comprised of four elements. In order to “establish that an employee
has a permanent, total disability[,] the employee shall prove” that:
(i) the employee is not gainfully employed;
(ii) the employee has an impairment or
combination of impairments that limit the
employee’s ability to do basic work activities;
(iii) the industrial or occupationally caused
impairment or combination of impairments
prevent the employee from performing the
essential functions of the work activities for which
the employee has been qualified until the time of
the industrial accident or occupational disease that
is the basis for the employee’s permanent total
disability claim; and
(iv) the employee cannot perform other work
reasonably available.
UTAH CODE § 34A-2-413(1)(c). Thus, taken as a whole, the permanent
total disability statute requires workers to prove six elements:
(1) “the employee sustained a significant impairment;” (2) “the
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Opinion of the Court
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 activities for which the employee” had been
qualified at 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.” Id. § 34A-2-413(1)(b)–(c).
¶7 The WCF argues that the labor commission erred when it
awarded permanent total disability payments because Mr. Serrano
failed to prove any of the six necessary elements for such an award.
In analyzing the WCF’s arguments, we first determine the standard
of review for each element of a permanent total disability claim. We
then apply the appropriate standard of review to each of the WCF’s
assertions of error.
A. Standard of Review
¶8 Utah Code section 63G-4-403(4) authorizes appellate courts
to grant relief to a party substantially prejudiced by an error in the
final disposition of a claim adjudicated by an administrative agency.
This statute lists several categories of remediable errors and implies
a standard of review for some, but not all, of these errors. Murray v.
Utah Labor Comm’n, 2013 UT 38, ¶ 19, 308 P.3d 461. The statute, for
example, authorizes appellate courts to grant relief where an
“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.” UTAH
CODE § 63G-4-403(4)(g). Thus, a challenge to an administrative
agency’s finding of fact is reviewed for substantial evidence. Murray,
2013 UT 38, ¶ 19. “A decision is supported by substantial evidence
if there is a quantum and quality of relevant evidence that is
adequate to convince a reasonable mind to support a conclusion.”
Becker v. Sunset City, 2013 UT 51, ¶ 10, 309 P.3d 223 (internal
quotation marks omitted). “In conducting a substantial evidence
review, we do not reweigh the evidence and independently choose
which inferences we find to be the most reasonable.” Id. ¶ 21
(internal quotation marks omitted). “Instead, we defer to [an
administrative agency’s] findings because when reasonably
conflicting views arise, it is the [agency’s] province to draw
inferences and resolve these conflicts.” Id. (internal quotation marks
omitted).
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Opinion of the Court
¶9 Other remediable errors identified in section 63G-4-403(4),
however, are not accompanied by a standard of review. When
reviewing these types of errors, we apply our traditional standards
of review. Murray, 2013 UT 38, ¶ 21. One example is subsection
(4)(d), which permits appellate courts to grant relief where an
“agency has erroneously . . . applied the law.” UTAH CODE § 63G-4-
403(4). When reviewing this kind of alleged agency error, we
employ one of our established standards of review for mixed
questions of law and fact. Murray, 2013 UT 38, ¶ 24. The level of
deference we afford to an agency’s resolution of mixed questions
varies depending upon the nature of the mixed question under
review. Id. ¶ 36.
¶10 In order to determine the appropriate standard of review
for the WCF’s challenges to the labor commission’s findings on the
six elements of a permanent total disability claim, we must decide
whether each element presents either a pure question of fact or a
mixed question of law and fact. “Factual questions are generally
regarded as entailing the empirical, such as things, events, actions,
or conditions happening, existing, or taking place, as well as the
subjective, such as state of mind.” State v. Pena, 869 P.2d 932, 935
(Utah 1994). A mixed question of law and fact, on the other hand,
involves the application of a legal standard to an established set of
facts. Id. at 936. In other words, the characteristic that distinguishes
a mixed question from a question of fact is “the existence of an
articulable legal issue.” Martinez v. Media-Paymaster Plus, 2007 UT 42,
¶ 27, 164 P.3d 384.
¶11 Because the third, fourth, and fifth elements of a permanent
total disability claim are similar, we examine these elements first to
determine whether they present questions of fact or mixed
questions. We then determine the standard of review for the first,
second, and sixth elements in turn.
1. The Third, Fourth, and Fifth Elements
¶12 In Martinez, we established the standard of review for the
fourth and fifth elements of a permanent total disability claim. We
held that the fourth element—whether an employee can perform the
essential functions of jobs the employee had been qualified for at the
time of the accident—is a question of fact. Id. ¶ 30. We reasoned that
the questions of what the essential functions of a job are and whether
a particular person is medically able to perform those functions were
matters for experts and did not involve the application of a legal
standard. Id. We likewise concluded that the fifth element—whether
an employee can perform other work reasonably available—is a
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Opinion of the Court
question of fact because this element does not require the application
of a legal standard. Id. ¶ 32.
¶13 We have not specifically addressed the standard of review
for the third element of a permanent total disability claim—whether
the employee has a limited ability to perform basic work activities.
Due to the similarities between the third element and the fourth and
fifth elements, we conclude that the third element likewise presents
a question of fact. The third, fourth, and fifth elements assess an
employee’s ability to perform work activities: basic work activities,
the work activities of prior employment, or the work activities of
other employment reasonably available. UTAH CODE § 34A-2-
413(1)(c)(ii)–(iv). Because the third element, like the fourth and fifth
elements, depends on empirical evidence and expert testimony
regarding an employee’s ability to perform certain functions, it
likewise present a question of fact. See Martinez, 2007 UT 42,
¶¶ 30–32.
¶14 We therefore review the ultimate findings in the third,
fourth, and fifth elements of a permanent total disability claim for
substantial evidence.
2. The First Element
¶15 Under the first element of a total, permanent disability
claim, an employee must prove he or she “sustained a significant
impairment or combination of impairments as a result of the
industrial accident or occupational disease.” UTAH CODE § 34A-2-
413(1)(b)(i). This element is fundamentally different from the third,
fourth, and fifth elements discussed above because it is not possible
to resolve the question of whether an employee has proven that he
or she has sustained a significant impairment without referring to a
legal standard. The question of whether an employee is physically
able to perform a particular job can be resolved through an
examination of the medical evidence and the opinions of medical
and vocational experts. The application of a legal rule is not
necessary to the resolution of this question. Martinez, 2007 UT 42,
¶¶ 30–32.
¶16 The question of whether a particular impairment is
“significant,” however, requires a court to evaluate the severity of
the impairment and determine whether the level of impairment
exceeds a minimum threshold. Similar to a determination of whether
a search or seizure is “reasonable” in the context of the Fourth
Amendment, a court cannot resolve the question of whether an
impairment is “significant” without applying a legal definition of
that term to the facts of the case. See Manzanares v. Byington (In re
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Adoption of Baby B.), 2012 UT 35, ¶ 44, 308 P.3d 382 (reasonable
search and seizure determinations are mixed questions of law and
fact). This inquiry, therefore, is a mixed question of law and fact.
¶17 A mixed question of law and fact may implicate one of three
standards of review, depending upon the type of challenge made on
appeal. First, we review the lower tribunal’s resolution of factual
disputes deferentially. Jeffs v. Stubbs, 970 P.2d 1234, 1244 (Utah 1998).
For appeals from administrative decisions, we review the
administrative body’s findings of fact under the substantial evidence
standard. Drake v. Indus. Comm’n, 939 P.2d 177, 181 (Utah 1997).
Second, we review the law applied to these facts for correctness.
Baby B., 2012 UT 35, ¶ 47. And third, we review the lower tribunal’s
ultimate conclusion of “whether a given set of facts comes within the
reach of a given rule of law” as a mixed question of law and fact.
Pena, 869 P.2d at 936. This review may be either deferential or de
novo, depending on the nature of the particular mixed question.
Baby B., 2012 UT 35, ¶ 42.
¶18 In this appeal, the WCF challenges the labor commission’s
findings of fact regarding the severity of Mr. Serrano’s impairment.
We accordingly evaluate this argument under the substantial
evidence standard of review.
3. The Second Element
¶19 Under the second element, the labor commission must
determine whether the individual seeking benefits is gainfully
employed. UTAH CODE § 34A-2-413(1)(c)(i). As we note below, the
WCF mounts a legal challenge to the labor commission’s finding on
this element, asserting that the WCF’s concession that Mr. Serrano
was unemployed was no longer valid when the commission
awarded benefits. Because this issue was not preserved, we do not
address it. Infra ¶¶ 25–27. We therefore need not resolve the
standard of review for the second element.
4. The Sixth Element
¶20 Finally, the sixth element requires an employee to prove
that a work accident “is the direct cause of the employee’s
permanent total disability.” UTAH CODE § 34A-2-413(1)(b)(iii). In
cases where there is no preexisting condition contributing to a
disability, the employee need only prove that the work accident is
the medical cause of the disability. Murray, 2013 UT 38, ¶ 45. Under
the medical causation test, the employee must show that an accident
is the but-for cause of the disability. Allen v. Indus. Comm’n, 729 P.2d
15, 27 (Utah 1986).
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Opinion of the Court
¶21 In cases where a preexisting condition is a contributing
factor to the disability, the employee must prove both medical
causation and legal causation. Murray, 2013 UT 38, ¶¶ 45–46. “To
meet the legal causation requirement, a claimant with a preexisting
condition must show that the employment contributed something
substantial to increase the risk he already faced in everyday life
because of his condition.” Allen, 729 P.2d at 25. “[T]his heightened
showing of legal cause is necessary to distinguish those injuries
which . . . coincidentally occur at work because a preexisting
condition results in symptoms which appear during work hours
without any enhancement from the workplace.” Murray, 2013 UT 38,
¶ 46 (second alteration in original) (internal quotation marks
omitted).
¶22 Here, the WCF challenges the manner in which the labor
commission determined that the car accident was the legal cause of
Mr. Serrano’s disability. Infra ¶ 35. Because the WCF asserts a legal
challenge to the method of determining legal causation, we review
this argument de novo. See Baby B., 2012 UT 35, ¶ 47 (“[A]ppellate
courts have traditionally been seen as having the power and duty to
say what the law is and to ensure that it is uniform throughout the
jurisdiction . . . .” (internal quotation marks omitted)).
B. Substantial Evidence of Permanent Total Disability
1. The First Element: Significant Impairment
¶23 In support of its conclusion that Mr. Serrano suffered from
a significant impairment, the labor commission found that his
injuries prevented him “from lifting, pushing or pulling more than
25 pounds or working at heights.” The commission further noted
that the “medical panel determined Mr. Serrano sustained a 6%
whole-person impairment as a result of the accident.”
¶24 Citing the deferential substantial evidence standard of
review, the WCF asserts that the evidence does not support these
factual findings. An examination of the record reveals, however, that
substantial evidence sustains these findings. The medical panel,
which reviewed all of the relevant medical evidence, determined
that Mr. Serrano could not work on ladders “or unprotected
heights” and that he could not move objects weighing more than 25
pounds. The panel also concluded that Mr. Serrano merited a “6%
Whole Person Impairment” rating as a result of his accident. This
evidence directly supports the findings of fact made by the labor
commission and is substantial. See Ivory Homes, Ltd. v. Utah State Tax
Comm’n, 2011 UT 54, ¶ 11, 266 P.3d 751 (“A decision is supported by
substantial evidence if there is a quantum and quality of relevant
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Opinion of the Court
evidence that is adequate to convince a reasonable mind to support
a conclusion.” (internal quotation marks omitted)).
2. The Second Element: No Gainful Employment
¶25 At the hearing on Mr. Serrano’s claim, the WCF conceded
that Mr. Serrano was not gainfully employed. When the labor
commission reversed the administrative law judge’s initial denial of
permanent total disability payments, it directed the judge to appoint
a medical panel to review the evidence. The labor commission
further instructed the judge that after she received the medical
panel’s report, she was to “issue a new decision that resolves
Mr. Serrano’s various claims in light of the entire record.” The
administrative law judge interpreted the labor commission’s remand
order to mean that the only new evidence to be considered would be
the medical panel’s report. The judge, therefore, instructed the
medical panel to review only the evidence presented at the initial
hearing when preparing its report, and the parties presented no
additional evidence before the judge issued her second order. The
WCF presented no objection to the administrative law judge’s
decision not to consider new evidence on remand.
¶26 The WCF now argues, however, that since no new evidence
was presented after the labor commission remanded the case for
reconsideration, its concession that Mr. Serrano was not gainfully
employed was no longer valid when the administrative law judge
issued its second order. Thus, it asserts that no evidence supports the
conclusion that Mr. Serrano was unemployed at the time the judge
issued the order challenged in this appeal.
¶27 The WCF’s position fails because it was not asserted below.
The WCF couches its argument as a substantial evidence challenge,
but in truth it is arguing that the administrative law judge’s decision
to reconsider the evidence as it existed at the time of the evidentiary
hearing was in error. In essence, the WCF asserts Mr. Serrano should
have been required to prove the elements of his claim as of the date
that the judge issued her second order. But the WCF failed to make
this claim below. By remaining silent and waiting for the appeal to
raise this issue, the WCF unfairly prejudiced Mr. Serrano. If the WCF
had raised this issue below, Mr. Serrano would have been on notice
of the potential need to produce more current evidence of his
employment status. Avoiding this type of unfair prejudice to an
opposing party lies at the heart of our preservation rule. See
Tschaggeny v. Milbank Ins. Co., 2007 UT 37, ¶ 23, 163 P.3d 615
(preservation rule prevents parties from obtaining a strategic
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advantage by raising an issue for the first time on appeal). We
therefore do not address this new issue raised by the WCF.
3. The Third Element: Limited Ability to Perform Basic Work
Activities
¶28 Utah Code section 34A-2-413(1)(c)(ii) requires an employee
seeking permanent disability benefits to prove that the employee has
“an impairment or combination of impairments that limit the
employee’s ability to do basic work activities.” The employee need
not prove a complete inability to perform basic work activities, only
that the employee’s ability to perform these activities is limited. In
defining what constitutes basic work activities, we look to identical
language used in federal social security law, which defines “basic
work activities” as “the abilities and aptitudes necessary to do most
jobs.” 20 C.F.R. § 404.1521(b) (2012). Thus, the disability must limit
an employee’s ability to perform the work activities of a broad
spectrum of jobs available.
¶29 In this case, the labor commission concluded that
Mr. Serrano’s ability to perform basic work activities was limited
because he did not “have a full range of motion with his head and
neck and cannot put stress on his neck such that he does not have a
reasonable degree of flexibility.” The commission’s specific findings
regarding Mr. Serrano’s neck impairments are inadequate to show
that his ability to perform most types of jobs was limited. Of course
a neck injury could limit an employee’s ability to perform physically
demanding jobs, including Mr. Serrano’s previous line of work. But
this element deals with work activities that are so basic that they are
required to perform most jobs, including more sedentary lines of
work. The commission’s findings do not adequately demonstrate
that Mr. Serrano’s disability negatively affects his ability to perform
less physically demanding jobs, such as office work.
¶30 We nevertheless affirm the labor commission’s finding that
this element was satisfied because it is supported by substantial
evidence presented to the commission. Mr. Serrano testified that
certain basic activities, like walking, could cause his condition to
worsen such that he could do nothing but rest for two or three days.
He stated that by the time he quit his job with Provo City he could
only work for two hours before he would become too nauseated to
continue. He further stated that within an hour of sitting in front of
a computer he would experience nausea and back pain and would
have to lie down. Finally, Mr. Serrano testified that his injury made
it difficult to sleep at night, which interfered with his ability to arrive
at work on time. Although Mr. Serrano’s testimony is contradicted
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in some respects by some of the medical evaluations, it constitutes
substantial evidence on which the commission was entitled to rely
in finding that his injury limited his ability to perform basic work
activities that would be required for most jobs.
4. The Fourth Element: Inability to Perform Former Work
¶31 The labor commission found that Mr. Serrano was qualified
to perform several types of employment. He had eleven years of
experience as a facility service technician fixing and maintaining
public buildings and other facilities. Mr. Serrano also had jobs
maintaining a public pool and as a security guard. Finally, as a
member of the National Guard, he performed physical labor as well
as typing and filing duties.
¶32 Substantial evidence supports the labor commission’s
finding that Mr. Serrano could no longer perform work that he was
previously qualified to perform. His jobs as a facility service
technician and swimming pool maintenance technician required him
to climb ladders, look up for prolonged periods, place his body in
awkward positions in order to fix various systems or machines, and
lift heavy objects. Both expert reports and Mr. Serrano’s testimony
adequately support the conclusion that Mr. Serrano could no longer
safely perform these tasks without experiencing debilitating pain.
Mr. Serrano also testified that his injury prevented him from
performing the duties of a security guard, such as chasing and
apprehending trespassers. Additionally, Mr. Serrano presented
evidence that he could no longer carry out the clerical tasks he had
performed in the National Guard because he could not perform the
repetitive neck movements required for data entry and filing.
Mr. Serrano further testified that after operating a computer in a
seated position for less than an hour, he becomes dizzy and
experiences back pain.
5. The Fifth Element: Inability to Perform Other Work Reasonably
Available
¶33 At the evidentiary hearing, the WCF’s vocational
rehabilitation expert testified that several maintenance supervisor
positions were available and that Mr. Serrano could perform this
type of work. A maintenance supervisor manages other maintenance
technicians and performs office work.
¶34 The WCF argues in this appeal that in light of the
rehabilitation counselor’s testimony, no substantial evidence in the
record supports the conclusion that Mr. Serrano could not perform
other work reasonably available. We disagree. Even if Mr. Serrano
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could have obtained a position that only required office work, as
noted above, he presented substantial evidence that his injury
prevented him from performing clerical activities. Supra ¶ 32.
6. The Sixth Element: Causation
¶35 The WCF does not raise a substantial evidence challenge to
the labor commission’s finding that the work accident was the
medical cause of Mr. Serrano’s disabilities. Instead, the WCF asserts
the legal argument that because the car accident aggravated a
congenital spinal condition, the accident was not the “direct cause”
of Mr. Serrano’s disabilities. See UTAH CODE § 34A-2-413(1)(b)(iii).
The WCF contends that where a preexisting condition predisposes
an employee to sustain a more severe injury as a result of a work
accident, the employee cannot establish a direct causal link to the
accident.
¶36 The WCF’s argument is clearly wrong. “Just because a
person suffers a preexisting condition, he or she is not disqualified
from obtaining compensation. Our cases make clear that the
aggravation or lighting up of a pre-existing disease by an industrial
accident is compensable . . . .” Allen, 729 P.2d at 25 (alteration in
original) (internal quotation marks omitted). When a condition or
exertion at work aggravates an employee’s preexisting condition, the
employee must establish that the work condition or exertion is the
legal cause of any resulting disability. Id. at 25–26. But the WCF does
not cite our legal causation case law or argue that the car accident
was not the legal cause of Mr. Serrano’s disabilities. Instead, the
WCF argues that a work accident that aggravates a preexisting
condition can never be the direct cause of a disability. We reject this
argument and uphold the labor commission’s finding that
Mr. Serrano proved causation.
7. Conclusion
¶37 In challenging the award of permanent total disability
payments to Mr. Serrano, the WCF argues, in large part, that the
award should be reversed because the evidence supports a
conclusion that Mr. Serrano was not totally disabled. But these
arguments do not satisfy the substantial evidence standard of
review. The fact that the evidence might support a different
conclusion is insufficient grounds for reversing an administrative
agency’s findings of fact. See Becker, 2013 UT 51, ¶¶ 21–22. Because
the WCF failed to show that no substantial evidence supports the
labor commission’s findings on the elements of a permanent total
disability award, we affirm the decision below.
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II. THE ADMINISTRATIVE LAW JUDGE’S DECISION TO
ARRIVE AT A DIFFERENT RESULT AFTER REMAND
¶38 As noted above, the administrative law judge initially
denied Mr. Serrano’s permanent total disability claim. After the
labor commission reversed and remanded the case, the judge
considered a new medical panel report along with the evidence
presented in the initial proceeding, and came to a different
conclusion. The administrative law judge’s second order awarded
benefits. The WCF argues on appeal that the administrative law
judge abused her discretion by arriving at a different outcome after
the remand.
¶39 We hold that the administrative law judge did not err. The
medical panel’s report constituted new evidence that could
reasonably lead a different outcome. Moreover, the WCF cites no
statute, rule, or legal principle that would prevent an administrative
law judge from arriving at a different outcome when the judge is
directed to reweigh the evidence on remand. Absent any legal
argument as to why the administrative law judge could not change
her mind after the remand, we are unable to evaluate the WCF’s
bald assertion that the judge abused her discretion. See UTAH R. APP.
P. 24(a)(9) (“The argument shall contain the contentions and reasons
of the appellant with respect to the issues presented, . . . with
citations to the authorities, statutes, and parts of the record relied
on.”)
III. DELAY IN ISSUING THE ADMINISTRATIVE DECISION
¶40 Mr. Serrano filed his claim for benefits in 2006. The
administrative law judge denied his permanent total disability claim
in 2007, and he filed a motion for review with the labor commission.
The labor commission did not rule on the motion for review until
2010, when it remanded the case back to the administrative law
judge for further proceedings. The administrative law judge then
issued a second order awarding benefits in 2012 and the labor
commission affirmed the award later that year. The WCF appealed
to the court of appeals and after the case was fully briefed and oral
argument was held in that court, the court of appeals certified the
case to this court for further briefing and oral argument before this
court.
¶41 The WCF complains about the six-year delay between the
filing of Mr. Serrano’s claim and the labor commission’s final
decision affirming the award of benefits. The WCF asserts that it
would be prejudiced if it were required to make a lump-sum award
for the years in which Mr. Serrano was entitled to benefits but did
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not receive them because of the delay in adjudicating his claim. The
WCF somewhat sheepishly suggests: “Perhaps this Court can apply
the equitable principles recently recognized [in Employers’
Reinsurance Fund v. Labor Commission, 2012 UT 76, ¶¶ 30–37, 289 P.3d
572] to modify the onset date of benefits.”
¶42 We reject this proposal because our holding in Employers’
Reinsurance Fund does not apply here. In that case, an employee
waited thirteen years after he became disabled to file a claim for
benefits. Id. ¶¶ 34–36. We held that because the employee’s
unreasonable delay prejudiced the Employers’ Reinsurance Fund,
the employee’s benefits would be calculated from the date he first
applied for them. Id. ¶ 36. In this case, the delayed award of benefits
is not attributable to Mr. Serrano, but rather to the administrative
system set up to adjudicate his claim. Thus, unlike the claimant in
Employers’ Reinsurance Fund, there is no reason why Mr. Serrano
should shoulder the burden for any prejudice caused by the delay.
CONCLUSION
¶43 We affirm the labor commission’s award of permanent total
disability benefits to Mr. Serrano.
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