Migliaccio v. Labor Commission , 729 Utah Adv. Rep. 20 ( 2013 )

2013 UT App 51_________________________________________________________
THE UTAH COURT OF APPEALS
TOMMY MIGLIACCIO,
Petitioner,
v.
LABOR COMMISSION AND SALT LAKE COUNTY,
Respondents.
Memorandum Decision
No. 20110690‐CA
Filed February 28, 2013
Original Proceeding in this Court
Richard R. Burke, Attorney for Petitioner
Thomas C. Sturdy and Dori K. Petersen, Attorneys for
Respondent Salt Lake County
Alan L. Hennebold, Attorney for Respondent Labor Commission
JUDGE JAMES Z. DAVIS authored this Memorandum Decision,
in which JUDGES CAROLYN B. MCHUGH
and MICHELE M. CHRISTIANSEN concurred.
DAVIS, Judge:
¶1 Tommy Migliaccio seeks judicial review of the Utah Labor
Commission’s decision to deny his request for workers’
compensation benefits for a cervical‐spine injury that he asserts
Migliaccio v. Labor Commission
was caused or aggravated by an industrial accident that occurred
in September 2006.1 We do not disturb the Commission’s decision.
¶2 Migliaccio asserts that the issue of medical causation was
not disputed and that as a result, the administrative law judge
(ALJ) abused her discretion when she referred the case to a medical
panel after the conclusion of the hearing. Likewise, Migliaccio
contends that he was entitled to a judgment in his favor as a matter
of law because Salt Lake County (the County) failed to adequately
dispute the issue of medical causation and further argues that the
Commission’s findings in accordance with the medical panel’s
recommendation2 were not supported by substantial evidence.
¶3 The Utah Code gives an ALJ the discretion to convene a
medical panel when reviewing workers’ compensation cases. See
Utah Code Ann. § 34A‐2‐601(1)(6) (LexisNexis 2011) (“An
administrative law judge may appoint a medical panel upon the
filing of a claim for compensation based upon disability or death
1. It is unclear on what specific day the accident occurred.
Migliaccio’s appellate brief states September 16, Salt Lake County’s
appellate brief and the ALJ’s findings indicate that the accident was
on September 19, a letter from one of the doctors that treated
Migliaccio puts it at September 18, and Migliaccio’s testimony at
the administrative hearing was that it occurred on September 14.
2. Two medical panels were convened in this case. Migliaccio
successfully moved to reconstitute the first medical panel, although
at that time the panel had already filed a medical report,
concluding that his neck injuries were not related to the industrial
accident. A second medical panel was convened, and its medical
report, which reached the same conclusion, was admitted into
evidence and ultimately relied on by the ALJ and the Commission.
It does not appear that the first medical panel’s report was
admitted into evidence.
20110690‐CA 2 2013 UT App 51Migliaccio v. Labor Commission
due to an occupational disease.”).3 However, the Utah
Administrative Code requires an ALJ to utilize a medical panel
“where one or more significant medical issues may be involved”
and notes that such a circumstance “[g]enerally [involves] . . .
conflicting medical reports.” See Utah Admin. Code R602‐2‐2.A.
Particularly, conflicting reports regarding medical causation of an
employee’s injuries constitute a “significant medical issue,”
requiring the involvement of a medical panel. See Willardson v.
Industrial Comm’n, 904 P.2d 671, 674 (Utah 1995) (internal quotation
marks omitted). Accordingly, “where the evidence of a causal
connection between the work‐related event and the injury is
uncertain or highly technical, failure to refer the case to a medical
panel may be an abuse of discretion.” Id. at 675 (citation and
internal quotation marks omitted).
¶4 Here, the ALJ concluded that “[a]lthough [rule] 602‐2‐2[.A]
provides specific instances in which a claim must be referred to a
medical panel, the statute does not preclude claims from being
referred to medical panels for other medical questions.” (Emphasis
added.) We agree. In any event, not only did the ALJ have
discretion in this case, but the ambiguities regarding causation that
were apparent in the medical records submitted by Migliaccio
support the involvement of a medical panel. See Utah Admin. Code
R602‐2‐2.A; Willardson, 904 P.2d at 674.
¶5 Migliaccio’s evidence indicated that he did not complain of
neck pain until May 21, 2007, seven months after his work accident.
The Commission and ALJ found this delay to be an important
factor in determining causation. Initially, Migliaccio’s complaints
were reported by various physicians to be part of an ongoing
affliction that began somewhere between one and a half years and
3. Because amendments to the relevant sections of the Utah Code
subsequent to the events underlying this action do not affect our
analysis, we cite the most recent version of the Code for the
reader’s convenience.
20110690‐CA 3 2013 UT App 51Migliaccio v. Labor Commission
two months before the accident, and several physicians noted that
Migliaccio specifically denied that his pain was attributable to a
particular work accident and denied that he had any issues with
his neck, with one physician actually confirming that Migliaccio’s
neck was healthy after conducting tests on it.4 Several days after the
accident occurred, see supra note 1, a physical therapist noted that
Migliaccio considered his medical issues to constitute a “work
injury.” Further, another physician evaluating Migliaccio on
February 2, 2007, reported that Migliaccio described his pain as
handicapping, to the extent that he could hardly lift a shovel, much
less do any work with one. The physician wrote that Migliaccio
stated that he essentially “could not use his arms due to pain and
that he couldn’t even pick his nose.” However, this physician also
noted that despite Migliaccio’s description of his pain, surveillance
videos recorded in November 2006 by a private investigator
4. This is contrary to Migliaccio’s assertions that causation was not
disputed because his neck was not examined until seven months
after the work accident, and even then his neck was examined by
only one doctor, Dr. Michael Giovanniello. Dr. Giovanniello
believed Migliaccio’s neck pain was connected to the work
accident. Migliaccio is correct that only Dr. Giovanniello
specifically examined whether there was a causal link between
Migliaccio’s neck pain and the work accident. However, that
Migliaccio reported no neck pain to the physicians treating him
earlier in this process—only symptoms that in hindsight could be
considered manifestations of his neck injury—and that one
physician did, in fact, rule out a neck injury after evaluating
Migliaccio’s neck, disputes Migliaccio’s causation claim by
suggesting that the neck injury was unrelated. The ALJ’s and the
Commission’s conclusions that the neck injury was unrelated to the
accident reflects their decisions to place more weight on the
credibility of the evidence suggesting that the two were not linked,
rather than Migliaccio’s implication that the neck injury was
merely latent or misinterpreted for several months. See infra
¶¶ 8–10.
20110690‐CA 4 2013 UT App 51Migliaccio v. Labor Commission
showed Migliaccio in little to no apparent discomfort while
shoveling dirt, digging, using a shovel to strike the ground with
significant force, carrying objects from his truck to his house,
swinging a long plank of wood, opening and closing doors and the
tailgate of his truck, and swinging his arms while driving a four‐
wheeler.
¶6 These inconsistencies alone—not including the other
inconsistencies referenced by the County at the hearing and in its
appellate brief, as well as those noted by the ALJ in her decision to
convene a medical panel—indicate that medical causation and the
extent of Migliaccio’s disability were unclear. The confusion as to
what date the work accident occurred and Migliaccio’s initial
denial that his injuries were attributable to a specific work accident
undermines his assertion that an accident even occurred. Further,
the County disputed medical causation in its response to
Migliaccio’s Application For Hearing and again in its prehearing
disclosures, where the County explained that it planned to present
testimony from a private investigator and the aforementioned
surveillance video recorded by the investigator, and to otherwise
rely on the medical records to litigate its defenses of “[l]ack of
medical or legal causation,” “[p]re‐existing condition,” “[l]ack of
competent evidence to suggest permanent total disability,” and
that “[a]ny continuing problems are an industrial disease
qualifying for apportionment.” In addition to presenting the
surveillance video evidence and the private investigator’s
testimony at the hearing, the County also disputed causation
through its cross‐examinations of Migliaccio, the County’s claims
adjuster, and Migliaccio’s supervisor. That the County relied on the
inconsistencies in Migliaccio’s medical evidence, rather than
submitting its own causation evidence—which would presumably
be duplicative of many of the medical records already submitted
by Migliaccio—is of little consequence under the facts and
circumstances of this case.5 Cf. Willardson, 904 P.2d at 675 (requiring
5. Migliaccio’s argument that Utah Administrative Code rules 602‐
(continued...)
20110690‐CA 5 2013 UT App 51Migliaccio v. Labor Commission
the ALJ to refer the case to a medical panel where the petitioner’s
evidence contained conflicting conclusions regarding medical
causation, despite the fact that the “[r]espondents did not provide
any medical information to rebut” the petitioners’ medical reports).
Thus, the ALJ rightly referred the issue to a medical panel for
assistance.6
5. (...continued)
2‐1.A.4 and 602‐2‐1.B.3 require a ruling in his favor in light of the
County’s failure to supply its own medical reports, is unavailing.
Indeed, the plain language of rule 602‐2‐2.1.B.3 indicates that it
applies specifically to “Applications for Hearing,” not responses to
those applications. See generally Utah Admin. Code R602‐2‐1.A.4,
R602‐2‐1.B.3. Here, Migliaccio applied for a hearing, not the
County. And even where the administrative rules explain that a
respondent’s denial of liability based on “medical issues” “shall”
be accompanied by “copies of medical reports sufficient to support
the denial,” the rules do not mandate that failure to do so
essentially results in a judgment on the pleadings in the petitioner’s
favor, as Migliaccio asserts. See id. R602‐2‐1.C.4; id. R602‐2‐1.C.5 (“If
the answer filed by the respondents fails to sufficiently explain the
basis of the denial[ or] fails to include medical reports or records to
support the denial . . . , the Division may strike the answer filed and
order the respondent to file within 20 days, a new answer which
conforms with the requirements of this rule.”). Further, it is simply
illogical to interpret the administrative rules to require, in this case,
that the County resubmit the medical records Migliaccio already
submitted, rather than simply reference its reliance on those
records in its response.
6. Implicit in our ruling on this issue is our disagreement with
Migliaccio’s assertion that once he satisfied his burden of
production as to causation, the burden shifted to the employer to
affirmatively produce evidence disputing causation, which burden
Migliaccio asserts the County did not satisfy because it did not
present separate medical evidence. As this court has stated,
(continued...)
20110690‐CA 6 2013 UT App 51Migliaccio v. Labor Commission
¶7 Last, Migliaccio asserts that the Commission’s findings were
not supported by substantial evidence.7 “We must uphold the
Commission’s factual findings if such findings are supported by
substantial evidence based upon the record as a whole.” Brown &
Root Indus. Serv. v. Industrial Commʹn, 947 P.2d 671, 677 (Utah 1997).
6. (...continued)
medical “causation is [not] an affirmative defense. Generally, a
defense that merely controverts [a] plaintiff’s prima facie case is
negative in character.” Blair v. Labor Commʹn, 2011 UT App 248,
¶ 10, 262 P.3d 456 (citation and internal quotation marks omitted).
Further, “[w]hether a party has satisfied its burden of production
. . . is an issue of law[ that] arises when, after a party rests, an
opposing counsel brings a motion for a directed verdict or the
like.” See 29 Am. Jur. 2d Evidence § 171 (2008). In other words, it is
not based on a party’s responsive pleading, as Migliaccio argues,
absent any sort of “preemptory ruling such as a summary
judgment.” See Black’s Law Dictionary 223 (9th ed. 2009) (defining
“burden of production” as “[a] party’s duty to introduce enough
evidence on an issue to have the issue decided by the fact‐finder,
rather than decided against the party in a preemptory ruling such
as a summary judgment or a directed verdict”). Accordingly, we
do not address Migliaccio’s subsidiary arguments that the County
did not properly raise the issue of medical causation, that the
County waived the defense of causation, and that Allen v. Industrial
Commission, 729 P.2d 15 (Utah 1986), mandates a ruling in
Migliaccio’s favor.
7. Migliaccio also “asserts that the Commission had no discretion
to ignore the undisputed medical causal evidence,” that the
Commission impermissibly adjudicated the issue of causation
where that issue was not adequately disputed by the County, that
the County failed to satisfy its burden of production on causation,
and that the Commission wrongly waived the County’s burden of
production. Because we have determined that the County
adequately disputed medical causation, see supra ¶ 6, we need not
address these claims.
20110690‐CA 7 2013 UT App 51Migliaccio v. Labor Commission
“It is not the role of this court to reweigh the evidence and
substitute our conclusion for that of the Commission. Instead, we
defer to the Commission’s findings because, when reasonably
conflicting views arise, it is the Commission’s province to draw
inferences and resolve these conflicts.” Speirs v. Southern Utah
Univ., 2002 UT App 389, ¶ 13, 60 P.3d 42 (citations and internal
quotation marks omitted).
¶8 Migliaccio specifically challenges the Commission’s finding
that Dr. Michael Giovanniello first concluded that Migliaccio’s
cervical‐spine issue was unrelated to his work accident, only to
change his mind later. Migliaccio also argues that the finding relied
on by the Commission that none of the physicians who treated
Migliaccio immediately after the work accident noted any
complaints of neck pain or injury is irrelevant because these
physicians were evaluating his upper extremities exclusively. He
asserts that this finding by the Commission is based on the
Commission’s assumption that Migliaccio’s neck pain should have
been apparent immediately after the accident. According to
Migliaccio, the limited nature of these physicians’ examinations
neither confirms nor disproves that Migliaccio’s cervical spine was
injured by the work accident. We disagree with these contentions.
¶9 Although it does appear that the Commission wrongly
described Dr. Giovanniello as having first opined that “Migliaccio’s
cervical‐spine condition was not related to the work accident only
to eventually change his opinion,” that single inconsistency does
not render the Commission’s determination invalid. The medical
panel’s report concludes that Migliaccio’s injuries were not caused
by his industrial accident and is sufficient, on its own, to support
the Commission’s decision. Cf. Cunningham v. Labor Commʹn, 2004
UT App 276U, para. 4 (mem.) (“Each of the findings that [the
petitioner] challenges is supported . . . by the medical panel’s
report, which in this case would satisfy our requirement that
findings be supported by substantial evidence . . . .”). Further,
Migliaccio has not challenged the substance of the medical panel’s
report on appeal—his appellate briefs do not address the panel’s
20110690‐CA 8 2013 UT App 51Migliaccio v. Labor Commission
findings; rather his briefs merely reiterate his assertion that
causation was not ambiguous.8
¶10 Nonetheless, even putting aside the unchallenged merits of
the medical panel’s report, we believe it is relevant to the
determination of causation that various physicians’ reports
documenting Migliaccio’s complaints for seven months after the
accident are either devoid of any mention of neck pain or
affirmatively note Migliaccio’s denial of neck pain, with at least one
medical evaluation confirming that Migliaccio’s neck was healthy.
Contrary to Migliaccio’s assertion that these findings are based on
an assumption about what symptoms Migliaccio should have
experienced and when, the lack of any complaint of neck pain for
seven months also raises the question of whether the neck pain was
related to the accident at all. That Dr. Giovanniello’s reports were
not consistent with the earlier medical reports does not undermine
the Commission’s decision; rather, it reflects the Commission’s
decision to resolve the conflicts in the evidence against Migliaccio.
See Speirs, 2002 UT App 389, ¶ 13. Accordingly, we determine that
8. Contrary to Migliaccio’s assertion that the Commission failed to
explain how it reached its conclusion, the Commission’s order
affirming the ALJ’s decision stated, “The [medical] panel’s
conclusion that Mr. Migliaccio’s cervical‐spine problems were not
medically caused by the accident is persuasive because the panel’s
report is thorough, well‐reasoned and based on a collegial and
impartial review of the medical evidence in the record.”
Migliaccio’s failure to address the medical panel’s findings at all is
arguably grounds to dismiss this claim for failure to marshal the
evidence. See generally Whitear v. Labor Commʹn, 973 P.2d 982, 984
(Utah Ct. App. 1998) (“A party seeking to overturn the
Commission’s factual findings must marshal[] . . . 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.”
(emphasis, citation, and internal quotation marks omitted)).
20110690‐CA 9 2013 UT App 51Migliaccio v. Labor Commission
the Commission had substantial evidence on which it could base
its dismissal of Migliaccio’s claim for lack of medical causation.
¶11 In sum, the ALJ had the discretion, and perhaps even the
obligation, to refer Migliaccio’s case to a medical panel. The County
adequately raised and disputed the issue of medical causation, and
the Commission’s decision to dismiss Migliaccio’s complaint is
based on substantial evidence indicating that Migliaccio’s cervical‐
spine issues were unrelated to his work accident. We therefore do
not disturb the Commission’s decision.
20110690‐CA 10 2013 UT App 51