Johnston v. Labor Commission , 739 Utah Adv. Rep. 42 ( 2013 )

2013 UT App 179_________________________________________________________
THE UTAH COURT OF APPEALS
MONTE JOHNSTON,
Petitioner,
v.
LABOR COMMISSION, VIRACON, AND NEW HAMPSHIRE
INSURANCE COMPANY,
Respondents.
Opinion
No. 20120313‐CA
Filed July 18, 2013
Original Proceeding in this Court
Aaron J. Prisbrey and Elizabeth B. Grimshaw,
Attorneys for Petitioner
David H. Tolk and Cody G. Kesler, Attorneys for
Respondents Viracon and New Hampshire
Insurance Company
Alan L. Hennebold, Attorney for Respondent
Labor Commission
JUDGE GREGORY K. ORME authored this Opinion, in which JUDGES
JAMES Z. DAVIS and WILLIAM A. THORNE JR. concurred.
ORME, Judge:
¶1 Monte Johnston was denied workers’ compensation benefits
for his head, neck, and back injuries after being involved in an
industrial accident while working for Viracon. The administrative
law judge (ALJ) denied Johnston’s request for benefits primarily
because of the opinions and conclusions contained in the
independent medical panel’s report. Johnston had objected to the
medical panel’s report and requested a hearing on his objection,
but the ALJ denied his request. The Labor Commission Appeals
Johnston v. Labor Commission
Board affirmed. Johnston now seeks judicial review of the Board’s
decision.
BACKGROUND
¶2 In 2009, Johnston worked as a console operator for Viracon,
which specializes in manufacturing large glass windows. Before his
accident at Viracon, Johnston already suffered from a pre‐existing
spinal condition that had required medical treatment. In fact, on
the morning of his accident, May 13, 2009, Johnston had a routine
physical in which he reported having constant mild lower back
pain and painful clicking in his neck. In his report, Dr.
Stratford—Johnston’s treating physician—characterized Johnston’s
neck condition as “stable without meds” and his back condition as
“stable.”
¶3 Later that same day, Johnston was operating a “tugger” in
Viracon’s warehouse. Tuggers are heavy machines used for towing
large racks of fabricated glass throughout the warehouse. As
Johnston was making a left‐hand turn with the tugger, his body
was suddenly “jolted to the side and up over the handle bars.” He
collided with the front portion of the machine as his entire body
was twisted sideways and forward. He managed to regain control
of the machine, and he immediately drove to the warehouse’s
break room, where he experienced lower back pain.
¶4 Following the accident, Johnston complained of neck and
back pain, swelling in his face and throat, slurred speech, and
drooping on the left side of his face. He received a limited amount
of chiropractic care and a “cervical epidural steroid injection.” He
also consulted with various doctors about his facial drooping and
lower back pain. Johnston’s facial condition was evaluated by Dr.
Schmidt, who diagnosed him with Horner syndrome.1 Johnston’s
1. Horner syndrome typically involves “a drooping
eyelid, decreased pupil size and decreased sweating on the
(continued...)
20120313‐CA 2 2013 UT App 179Johnston v. Labor Commission
neck and back pain was evaluated by Dr. Reichmann, who
concluded that Johnston had a disc herniation and multiple disc
bulges in his spine. Dr. Reichmann opined that the accident at
Viracon was the medical cause of Johnston’s injuries, and he
recommended that Johnston undergo a cervical fusion and
decompression surgery. After a series of epidurals and other
injections that took place over several months, Johnston underwent
the recommended procedure in December 2009.
¶5 Shortly after he had surgery, Johnston filed an application
for hearing with the Labor Commission, seeking payment of his
medical expenses from Viracon and its insurer, New Hampshire
Insurance Company. Doctors Moress and Knoebel examined
Johnston on behalf of Viracon, and both concluded that the
accident was not the medical cause of Johnston’s injuries but that
it had only exacerbated his pre‐existing symptoms. Dr. Moress also
opined that Johnston did not have Horner syndrome. Given the
conflicting reports between the parties’ respective doctors, the ALJ
commissioned a one‐member medical “panel” to perform an
independent examination and review. Dr. Goldman, the panel’s
sole member, examined Johnston and reviewed his medical history.
As part of his review, Dr. Goldman consulted with a Dr. Lee from
Methodist Hospital in Houston, Texas, about the Horner syndrome
diagnosis. Dr. Lee is the Chairperson of Ophthalmology at
Methodist Hospital and is the author of an article on Horner
syndrome that was published in the Journal of Neuro‐Ophthalmology.
¶6 Dr. Goldman issued a written report, in which he concluded
that the accident was not the medical cause of Johnston’s injuries.
Johnston’s lower back injury, he opined, was only a “temporary
aggravation” of a “pre‐existing, well‐documented” condition. Dr.
Goldman also concluded that Johnston’s facial drooping was more
1. (...continued)
affected side of [the] face.” Horner syndrome, Mayo Clinic (April 16,
2011), http://www.mayoclinic.com/health/horner‐
syndrome/DS01137.
20120313‐CA 3 2013 UT App 179Johnston v. Labor Commission
consistent with Bell’s palsy2 than Horner syndrome, and that as
such, the drooping was not related to the accident or any
subsequent injections Johnston received. With regard to treatment,
Dr. Goldman believed that the injections Johnston had received
were reasonable, but he did not believe that the cervical fusion and
decompression surgery performed by Dr. Reichmann was
necessitated by the accident.
¶7 Johnston filed a timely objection to the medical panel’s
report and requested a hearing before the ALJ on his objection. In
his objection, Johnston took issue with the report’s summarization
of an observation from Dr. Moress’s report, which stated that
before the accident, Johnston had reported experiencing “constant
low back pain and neck dysfunctions” to Dr. Stratford. Johnston
claimed that this summarization was a material misstatement of
fact. Johnston’s objection also called Dr. Goldman’s objectivity and
impartiality into question because of an alleged “office‐sharing
arrangement with defense insurance examiners at the
Intermountain Spine Institute,” and he claimed that concerns about
Goldman’s impartiality were compounded by the improper
appointment of a single‐member medical panel. Lastly, Johnston
asserted that the medical panel misunderstood and misapplied the
“aggravation rule.”
¶8 The ALJ did not hold a hearing on the objection, nor did she
issue an interim order that ruled on the objection or the request for
hearing. Instead, the ALJ issued her final Findings of Fact,
Conclusions of Law, and Order (the Order) shortly after Johnston
filed his reply to Viracon’s response to the objection. The Order
both ruled on the objection and disposed of Johnston’s claim on the
merits.
2. Bell’s palsy “causes sudden weakness in [the] facial muscles.
This makes half of [the] face appear to droop. [One’s] smile is one‐
sided, and [the] eye on that side resists closing.” Bellʹs palsy, Mayo
Clinic (March 27, 2012), http://www.mayoclinic.com/health/bells‐
palsy/DS00168.
20120313‐CA 4 2013 UT App 179Johnston v. Labor Commission
¶9 In the Order, the ALJ considered Johnston’s concerns about
how much “weight the report should be given” as well as his
“allegations of bias and the appearance of impropriety.” The ALJ
found that “the report presents a well reasoned analysis and that
the conclusions are supported by [her] own review of the
evidentiary record.” The ALJ also concluded that there was “no
substance to the allegations” of bias, noting that the report “is
supported by other medical evidence and opinion of record.” The
Order was silent as to Johnston’s request for a hearing and did not
specifically state that the request was denied or explain why a
hearing would not be held. The Order overruled the objection,
admitted the medical panel report into evidence, and relied on the
medical panel’s opinion as the basis for denying Johnston’s claim
for workers’ compensation benefits.
¶10 Johnston appealed the ALJ’s decision to the Labor
Commission Appeals Board, arguing that he was erroneously
denied a hearing on his objection, to which he was statutorily
entitled; that the medical panel was biased against him; and that
the medical panel’s report contained factual misstatements and
lacked the requisite foundational testimony to support its
admission. The Board affirmed the ALJ.
¶11 The Board’s decision first noted that under Lander v.
Industrial Commission, 894 P.2d 552 (Utah Ct. App. 1995), the
statutory provision giving the ALJ discretion to decide whether to
hold an objection hearing is constitutional.3 Id. at 556–57. The Board
then concluded that “[i]t was not error for [the ALJ] to exercise her
discretion and decline to hold a hearing on the medical panel’s
report.” To support that conclusion, the Board conducted its own
evaluation of Johnston’s arguments as to whether he was entitled
3. Prior to 1982, a hearing was required if an objection to a medical
panel report was filed. See Utah Code Ann. § 35‐1‐77 (Allen Smith
Co. 1974); Lander v. Industrial Comm’n of Utah, 894 P.2d 552, 554
(Utah Ct. App. 1995). The statute was amended in 1982 to make
such a hearing discretionary with the ALJ. See Utah Code Ann.
§ 35‐1‐77 (Allen Smith Co. Supp. 1982).
20120313‐CA 5 2013 UT App 179Johnston v. Labor Commission
to an objection hearing, specifically focusing on the allegations of
bias and the claim that the report relied on a misstatement of fact.
The Board held that the allegations of bias were “speculative and
not supported by the record” and that Johnston’s misstatement of
fact claim was unfounded because the panel’s characterization of
Johnston’s injuries was consistent with Dr. Stratford’s report. The
Board did not address the ALJ’s failure to provide any explanation
for denying the objection hearing, yet it concluded that the ALJ did
not abuse her discretion in denying the hearing. It also affirmed the
admission of the medical panel’s report and the ALJ’s decision in
favor of Viracon. Johnston now requests that this court review the
denial of the objection hearing and the admission of the medical
panel’s report into evidence, contending that the Board’s decision
affirming the ALJ should be set aside and the case remanded so
that a hearing can be held.
ISSUES AND STANDARDS OF REVIEW
¶12 There are two pertinent issues before us, both of which
revolve around Utah Code section 34A‐2‐601. See Utah Code Ann.
§ 34A‐2‐601 (LexisNexis 2011).4 First, Johnston argues that the ALJ
4. Section 34A‐2‐601 was amended during the past legislative
session. See 2013 Utah Laws Ch. 428. Because the amendments are
not material to this appeal, we cite to the last published version of
the code. See Utah Code Ann. § 34A‐2‐601 (LexisNexis 2011).
Section 34A‐2‐601 provides, in relevant part, that an applicant
for workers’ compensation benefits can file a written objection to
the medical panel’s report within twenty days after the report
issues. See id. § 34A‐2‐601(2)(d)(ii). If no written objection is
properly filed, the medical panel report is admitted into evidence.
Id. § 34A‐2‐601(2)(d)(iii). If a written objection is filed, however, the
administrative law judge “may set the case for hearing to
determine the facts and issues involved.” Id. § 34A‐2‐601(2)(f)(i).
And in the event that the administrative law judge grants a
hearing, the medical panel’s report will be considered as evidence
(continued...)
20120313‐CA 6 2013 UT App 179Johnston v. Labor Commission
abused her discretion in denying an objection hearing because
Johnston raised several concerns in his request that sufficiently
impugn both Dr. Goldman’s credibility and his report’s
conclusions. Both sides agree that the ALJ has discretion to
decide whether to hold a hearing on an objection to a medical
panel report. See Utah Code Ann. § 34A‐2‐601(2)(f)(i) (“[T]he
administrative law judge may set the case for hearing to determine
the facts and issues involved.”) (emphasis added).
¶13 Second, Johnston contends that the ALJ improperly
admitted the medical panel’s report into evidence without
sufficient foundational testimony. This argument turns on the
proper interpretation of section 601ʹs provisions concerning the
admissibility of medical panel reports. Statutory interpretation
presents a question of general law, which we consider without any
“deference to the expertise of the Commission.” Utah Dep’t of
Admin. Servs. v. Public Serv. Commʹn, 658 P.2d 601, 608 (Utah 1983).
ANALYSIS
I. Denial of the Objection Hearing
¶14 Johnston believes that because he raised concerns of bias
and foundational inadequacy relating to the medical panel’s report,
and because he requested a hearing as permitted by the statute, an
objection hearing should have been held more or less as a matter
of course. The ALJ’s decision, however, did not address Johnston’s
request for a hearing but merely overruled his underlying
objection.
¶15 When reviewing for an abuse of discretion by a trial court,
we will reverse only “‘if there is no reasonable basis for the
decision.’” State v. Ruiz, 2012 UT 29, ¶ 23, 282 P.3d 998 (quoting
4. (...continued)
only “as far as the report is sustained by the testimony admitted.”
Id. § 34A‐2‐601(2)(g)(i)–(ii).
20120313‐CA 7 2013 UT App 179Johnston v. Labor Commission
Tschaggeny v. Milbank Ins. Co., 2007 UT 37, ¶ 16, 163 P.3d 615).
Although our cases have regularly encouraged trial courts to “give
reasons on the record for discretionary rulings, . . . [a] failure to do
so does not, alone, constitute an abuse of discretion and does not
warrant reversal.” Id. ¶ 24. See State v. Pecht, 2002 UT 41, ¶ 34, 48
P.3d 931. Instead, a trial court’s failure to explain the basis for its
decision will not be disturbed if a reasonable basis for its decision
is apparent from the record. See Ruiz, 2012 UT 29, ¶ 24; Pecht, 2002
UT 41, ¶ 34. In cases where a reasonable basis is not clear from the
record, the failure to explain will “‘only justify remand to the trial
court.’” Ruiz, 2012 UT 29, ¶ 24 (emphasis in original) (quoting
Neerings v. Utah State Bar, 817 P.2d 320, 323 (Utah 1991)).
¶16 We first note that while the above discussion lays out the
appropriate standard for trial courts, we see no reason to impose
a more stringent standard upon administrative tribunals.
Therefore, while it certainly would have made the Board’s and our
review of this case much easier had the ALJ provided an
explanation in the Order, her discretionary denial of a hearing on
Johnston’s objection will be disturbed only if a reasonable basis for
that decision is not apparent from the record. See Brown & Root
Indus. Servs. v. Industrial Commʹn, 947 P.2d 671, 677 (Utah 1977);
Niederhauser Ornamental & Metal Works Co. v. Tax Commʹn, 858 P.2d
1034, 1037 (Utah Ct. App. 1993).
¶17 Johnston essentially raised four issues in his objection. First,
he claimed that the medical panel relied on “incorrect facts.”
Second, he questioned the medical panel’s objectivity and
impartiality. Third, Johnston challenged the propriety of a one‐
member medical panel. Fourth, Johnston claimed that the medical
panel misunderstood and improperly applied the “aggravation”
rule.5 As the Board pointed out, there are several reasons why the
5. In this proceeding for judicial review, Johnston raises another
concern, namely the medical panel’s consultation with Dr. Lee
about Horner syndrome and Bell’s palsy. Johnston takes issue with
the fact that Dr. Lee’s full name was not provided in the medical
(continued...)
20120313‐CA 8 2013 UT App 179Johnston v. Labor Commission
ALJ did not abuse her discretion in simply overruling the objection
without convening the requested hearing.
A. Reliance On Erroneous Facts
¶18 While Johnston believes that the medical panel’s
summarization of Dr. Moress’s report is a material misstatement of
fact, the information was not presented as one of the medical
panel’s own conclusions but merely as an excerpt from Dr.
Moress’s report. Moreover, the panel’s summarization that
Johnston had reported “constant low back pain and neck
dysfunctions” is consistent with and supported by Dr. Stratford’s
own report, which stated that, prior to the accident, Johnston
experienced constant mild pain in his lower back and pain with
some clicking in his neck. Johnston has not cited to any information
contained in the record, and we are not aware of any, that conflicts
5. (...continued)
panel’s report, stating that he had to “scour the internet to ascertain
it,” and he objects to the panel’s subsequent reliance on Dr. Lee’s
opinions. The medical panel’s report identified Dr. Lee as “Dr. Lee,
the Chairperson of the Department of Ophthalmology at the
Methodist Hospital in Houston, Texas.” Although Dr. Lee’s first
name was not stated in the report, it seems highly unlikely that
there were multiple Methodist Hospitals in Houston that all had
multiple Dr. Lees simultaneously serving as chairpersons of their
respective Departments of Ophthalmology. Even if the absence of
Dr. Lee’s first name generated a concern about the validity of his
credentials or expertise, Dr. Lee’s opinion was just one of several
reasons why the medical panel concluded that Johnston’s
symptoms were not consistent with a Horner syndrome diagnosis.
The panel also relied on “Dr. Frank Netter’s Atlas of Human
Anatomy,” the fact that Johnston was treated by one of his
physicians for Bell’s palsy, and the panel’s own independent
consideration of Johnston’s symptoms. Accordingly, there was no
sound reason to cross‐examine Dr. Goldman about Dr. Lee’s
opinions, let alone to bring in Dr. Lee from Texas to question him
directly.
20120313‐CA 9 2013 UT App 179Johnston v. Labor Commission
with the factual representations made by the medical panel or that
would have warranted further inquiry by the ALJ. We conclude
that Johnston’s claim that the medical panel’s conclusions relied on
a material misstatement of fact is without merit.
B. Impartiality and Bias
¶19 Johnston contends that Dr. Goldman—the medical panel’s
sole member—has “extensive ties to the insurance industry”
and that these longstanding ties, coupled with an office‐sharing
agreement he allegedly has with “numerous insurance medical
examiners,” renders him biased and impugns his ability to provide
an objective opinion. Johnston believes that cross‐examining Dr.
Goldman at an objection hearing was necessary to ascertain the full
measure of his impartiality. The Board, by contrast, believed that
the allegations of bias “[we]re speculative and not supported by the
record.”
¶20 We agree with the Board. There is no indication in the
record that any of the insurance medical examiners supposedly
sharing an office with Dr. Goldman are party to or have any
involvement with this case. And Johnston has not explained why
an office‐sharing agreement with non‐party medical examiners has
any bearing on Dr. Goldman’s ability to render a credible opinion.
Instead, Johnston merely speculates that “there are legitimate
questions as to Dr. Goldman’s ability to render a neutral opinion.”
Given that the findings in Dr. Goldman’s report were consistent
with findings from other reports submitted, and that Johnston’s
allegations are the product of speculation, the ALJ did not exceed
her discretion in resolving the claim of bias without an objection
hearing.6
6. A nearly identical claim of bias was brought against Dr.
Goldman by another party before the Labor Commission in 2008.
The Presiding Administrative Law Judge, in conjunction with the
other administrative law judges, dismissed any concerns of bias
based on Dr. Goldman’s office sharing arrangement and noted that
(continued...)
20120313‐CA 10 2013 UT App 179Johnston v. Labor Commission
C. Medical Panel Composition
¶21 An administrative law judge may appoint a medical panel
consisting of “one or more physicians specializing in the treatment
of the disease or condition” involved in the particular claim
at issue. Utah Code Ann. § 34A‐2‐601(1)(c) (LexisNexis 2011)
(emphasis added). Johnston contends that, despite the plain
language of section 34A‐2‐601, the appointment of a single‐member
medical panel violates the established practice and custom of
appointing multi‐member panels. He essentially believes that the
Board’s apparent preference in its previous decisions for multi‐
member panels trumps the plain language of the statute. The Board
did not address this point in its decision, but it is readily apparent
from a cursory review of the statute and relevant case law that
single‐member medical panels are acceptable.
¶22 While Johnston may be correct in asserting that single‐
member panels are more prone to “potential errors and questions
of bias,” the statute plainly authorizes administrative law judges to
appoint single‐member medical panels. See id. Johnston suggests
that the Board has so regularly appointed multi‐member panels
that single‐member panels have become a per se violation of the
Board’s own policies. But he has cited no authority in support of
his position, and our cursory review of the case law reveals cases
where single‐member medical panels were utilized. See, e.g.,
Kincheloe v. Coca‐Cola Bottling Co., 656 P.2d 440, 441 (Utah 1982);
Sabo’s Elec. Serv. v. Sabo, 642 P.2d 722, 724 (Utah 1982). In light of
the clear statutory language—and the complete lack of
contradictory authority—we are simply not persuaded by
Johnston’s argument that the Board’s supposed preference has
somehow morphed into a binding practice that supercedes the
6. (...continued)
all of the judges “uniformly agree that his work has been and
continues to be of the highest quality, always thoughtfully
analyzed, thoroughly reasoned, supported by the medical records
we ourselves review in detail and above all without any
perceptible trace of bias or animus.”
20120313‐CA 11 2013 UT App 179Johnston v. Labor Commission
statute. We therefore conclude that section 34A‐2‐601 plainly
allows administrative law judges to appoint single‐member
medical panels.
D. Aggravation
¶23 A claimant can generally recover benefits when an industrial
injury aggravates or “light[s] up” a pre‐existing condition and has
a causal connection with the subsequent onset of symptoms. See
Virgin v. Board of Review, 803 P.2d 1284, 1288 (Utah Ct. App. 1990)
(citing Allen v. Industrial Comm’n, 729 P.2d 15, 25 (Utah 1986)).
Aggravation of a pre‐existing condition is a factual matter to be
determined by the ultimate finder of fact. Id. at 1287, 1289; Chase v.
Industrial Comm’n, 872 P.2d 475, 479 (Utah Ct. App. 1994). The
Board, as the ultimate fact finder, “may choose to give certain
evidence more weight than other evidence,” Virgin, 803 P.2d at
1289, and it is not bound by the opinions contained in the medical
panel’s report, see id. (noting that it is the Board’s prerogative to
believe only those statements from a doctor’s opinion that
“‘impressed it as being true’” (quoting Mollerup Van Lines v. Adams,
398 P.2d 882, 885 (Utah 1965))). See also Redman Warehousing Corp.
v. Industrial Comm’n, 454 P.2d 283, 285 (Utah 1969) (“We must pay
great respect to the panel of medical experts, but they are not the
ultimate fact finders.”).
¶24 Johnston insists that an objection hearing was necessary
because the medical panel was unaware of the aggravation rule
and employed some other method for determining medical
causation. The medical panel, however, is not the finder of fact and
does not make a final and binding aggravation determination. See
Chase, 872 P.2d at 479; Giesbrecht v. Board of Review, 828 P.2d 544,
548 (Utah Ct. App. 1992). While medical panel reports typically use
the word “aggravate” and opine as to whether a pre‐existing
condition was made worse by the relevant industrial injury,
medical panels comprised of individuals without legal training are
not obligated to restrict their usage of the word “aggravate” to its
legal construction as developed in our cases. See Zimmerman v.
Industrial Comm’n, 785 P.2d 1127, 1131 (Utah Ct. App. 1989) (“The
record viewed in its entirety, demonstrates that the aggravation
20120313‐CA 12 2013 UT App 179Johnston v. Labor Commission
the medical panel referred to was that due solely to the temporary
pain experienced by [claimant] following the accident and not
aggravation of or by the pre‐existing conditions . . . .”). Indeed, that
is the very reason why the Board, and not Dr. Goldman, makes the
determination as to whether a pre‐existing condition was legally
“aggravated.” It is the province of the Board, as the finder of fact,
to view all the evidence submitted as a whole and then make an
appropriate determination. Dr. Goldman’s understanding of the
aggravation rule is not binding on the Board or its own application
of the rule, and accordingly, the ALJ did not err in declining to
convene a hearing to explore Dr. Goldmanʹs understanding of the
aggravation rule.
¶25 As previously suggested, it would surely be the better
practice for administrative law judges to explain specifically why
requested hearings, which are discretionary, will not be convened.
It is invariably easier to evaluate the reasonableness of an exercise
of discretion when it is explained. But after reviewing the record as
a whole, it is apparent that the ALJ in this case did not abuse her
discretion in denying a hearing on the objection and that the
Board’s affirmance of the denial was appropriate. The factual
statements in Dr. Goldman’s report are consistent with those found
in Dr. Stratford’s report, and there are no facts in Dr. Goldman’s
report that seem to irreconcilably conflict with those in other
reports or that warrant further evidentiary inquiry. Johnston’s
allegations of bias and impartiality are—as the Board aptly
stated—“speculative and not supported by the record.” Single‐
member medical panels are explicitly permitted by statute, and
Johnston has not cited to any authority that contradicts or
supercedes the plain language of the statute. Finally, aggravation
determinations are made by the finder of fact, and the Board is not
bound by an independent medical panel’s possible
misunderstanding of the aggravation rule.
II. Admissibility of the Medical Panel’s Report
¶26 Utah Code section 34A‐2‐601 contemplates three potential
scenarios in which a medical panel report can be admitted into
evidence, but only two of those scenarios are expressly treated by
20120313‐CA 13 2013 UT App 179Johnston v. Labor Commission
the statute. See Utah Code Ann. § 34A‐2‐601(2)(d)(iii), (2)(f)(i),
(2)(g)(i)–(ii) (LexisNexis 2011). In the first scenario, where no
objection to the medical panel report is made, “the report is
considered admitted in evidence.” Id. § 34A‐2‐601(2)(d)(iii). The
second scenario occurs when an objection to the medical panel
report is timely filed and the administrative law judge, in her
discretion, convenes a hearing on the objection. See id. § 34A‐2‐
601(2)(f)(i). In that instance, the medical panel report “may not be
considered as evidence in the case except as far as the report is
sustained by the testimony admitted.” Id. § 34A‐2‐601(2)(g)(ii).
¶27 A third scenario—the one presented here—occurs when an
objection to the report is timely filed but the administrative law
judge elects not to hold an objection hearing. See id. § 34A‐2‐
601(2)(f)(i) (“[T]he administrative law judge may set the case for
hearing to determine the facts and issues involved.”) (emphasis
added). Section 34A‐2‐601 is silent as to whether, in this third
scenario, a medical panel report is admitted as if no objection had
been made, only after sufficient testimony, or only after some other
unspecified laying of supporting foundation. See id. § 34A‐2‐601.
The parties are predictably split on how this third scenario should
play out. Johnston asserts that his objection sufficiently
distinguishes this third scenario from the first scenario—subpart
(2)(d)(iii)—because that provision only contemplates instances
where no objection was made. See id. § 34A‐2‐601(2)(d)(iii). He
maintains that a filed objection necessitates the laying of proper
foundation before a medical report is admitted into evidence,
regardless of whether a hearing is held. Viracon and its insurer, by
contrast, believe that if an administrative law judge, in her
discretion, properly denies an objection hearing, then the medical
panel report should be admitted as if no objection had been made
at all. The scenario before us is admittedly perplexing, and had the
Legislature defined the scope and operation of this third scenario,
then the focus of this appeal would be far more narrow and not
have turned solely on our own interpretation of the statute.
¶28 When interpreting statutes, we look to the plain language
of the statute and read that language as a whole, assuming
each word was chosen carefully and advisedly. See State v. Harker,
20120313‐CA 14 2013 UT App 179Johnston v. Labor Commission
2010 UT 56, ¶ 12, 240 P.3d 780; Amax Magnesium Corp. v. Utah State
Tax Comm’n, 796 P.2d 1256, 1258 (Utah 1990). Viewed as a whole,
this third scenario appears to turn on whether the administrative
law judge properly exercised her discretion in denying a hearing
and, if the denial was proper, whether the objection to the medical
panel report was well taken.
¶29 In a close case—unlike this one—where an objection can be
appropriately decided only after holding an objection hearing, it is
an abuse of discretion if the administrative law judge denies a
hearing. Because a denial is improper, the case would be remanded
so that the necessary hearing could take place. Close cases that
necessitate a hearing fit neatly within the confines of the second
scenario—subparts (2)(f)(i) and (2)(g)(ii)—and consequently, the
medical panel report in those cases will be considered as evidence
only insofar “as the report is sustained by the testimony admitted.”
See Utah Code Ann. § 34A‐2‐601(2)(f)(i), (2)(g)(ii).
¶30 On the other hand, in cases where the administrative law
judge has properly denied a hearing, the appropriate ruling on the
objection should be obvious enough that no additional testimony
or evidence is warranted. In those cases, the objection will either be
obviously well taken or obviously not well taken. If it is obvious
that the objection is not well taken, then the medical panel report
will have no readily apparent deficiencies and supporting
foundational testimony will not be necessary to substantiate the
report’s validity. Thus, the report will be treated as if no objection
had been made and simply be admitted into evidence. See id. §
34A‐2‐601(2)(d)(iii). If, however, it is obvious that the objection is
well taken such that no amount of supporting testimony could
overcome the report’s glaring deficiencies, then the objection
should simply be sustained and the medical panel report be
excluded.
¶31 Just as it was apparent from the record that the ALJ did not
abuse her discretion in denying a hearing on Johnston’s objection,
it is also apparent that Johnston’s objection is not well taken and
that the ALJ did not err in overruling it. As previously discussed,
Johnston’s claims of factual misstatements and bias do not find any
20120313‐CA 15 2013 UT App 179Johnston v. Labor Commission
tangible support in the record. His challenges to the composition
of the medical panel and the panel’s understanding of the
“aggravation rule” are similarly not well taken. Because the
grounds for his objection have no merit, the objection was not well
taken, and the statute contemplates that the ALJ should have
overruled the objection and admitted the report as if no objection
had been made. See id. § 34A‐2‐601. We conclude that the ALJ
complied with the requirements of section 34A‐2‐601 and that the
Board properly endorsed her approach. We decline to disturb its
decision.
CONCLUSION
¶32 When an objection to the independent medical panel’s
report is timely filed and a hearing is requested, the administrative
law judge has discretion to decide whether or not to hold a hearing.
Although it is best if the administrative law judge explains the
rationale for her exercise of discretion, we will not disturb her
decision unless there is no reasonable basis for the decision
apparent in the record. Our review of the record in the case before
us indicates that the ALJ was well within her discretion in denying
a hearing on Johnston’s objection.
¶33 Although the Legislature did not expressly define every
contour of section 34A‐2‐601, the framework of the statute as a
whole indicates that if the administrative law judge did not abuse
her discretion in denying a hearing, then the medical panel report’s
admissibility will turn on whether the objection to the report is well
taken. If well taken, the objection will be sustained and the report
may be excluded. If, however, the objection is not well taken, then
the report will be admitted as if no objection had been filed. Here,
Johnston’s objection was not well taken and the ALJ ruled correctly
in admitting the report. Accordingly, we decline to disturb the
Board’s decision.
20120313‐CA 16 2013 UT App 179